Constitutional vandalism

Anthony Lloyd says that the government’s plan to replace the law lords is an attack on tradition, and pointless too

On 12 June the Prime Minister issued a press release announcing that the ‘post of Lord Chancellor’ would be abolished. The announcement came as a complete surprise to everybody, not least the law lords. For in the same press release the Prime Minister also announced the government’s intention to create a new supreme court to replace the law lords. One would have thought that the law lords would have been consulted in advance, or at least informed. But they were not.

The proposed changes were presented as a package to modernise the relationship between the executive, the legislature and the judiciary. But the position of the law lords is quite different from that of the Lord Chancellor. I can understand the argument that the Lord Chancellor as a member of the executive should not sit as a judge. But I can see no reason at all why the law lords, who are not members of the executive, should not sit as members of the Upper House.

So what are the government’s arguments? There are three. Two are theoretical, and one is practical. The first argument is that it is a breach of the so-called separation of powers for our most senior judges to be members of the legislature. But this argument is based on a misunderstanding of our unwritten constitution. We have never had a separation of powers such as exists in the United States. To create a separation of powers now would mean that the Prime Minister and the rest of the government would have to leave the House of Commons, which is absurd. In the United States, by contrast, where there is an almost complete separation of powers, the President is never a member of Congress.