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Ditchley Foundation Lecture XXXIX

11 July 2003
Judging today
Delivered by:
The Rt Hon Lord Bingham of Cornhill, Senior Lord of Appeal in Ordinary

 
The title of this lecture – Judging Today – imports the notion that judging today is in some way different from judging yesterday or the day before.
It would be possible to make quite a good case that that is not so.  After all, the oath which judges take and try to observe – to do right by all manner of people, according to the laws and usages of the realm, without fear or favour, affection or ill-will – dates back to 1346 and describes the judicial function with marvellous succinctness.[1]   The judges still set out from Westminster to visit the shires and try  those accused of serious crime as they have done for over 800 years.  They still perform their age-old function of deciding disputes between citizen and citizen and between the citizen and the state.  Despite many structural changes and procedural reforms the final arbitrament of most domestic issues still takes place within the boundaries of the City of Westminster.  Our legal institutions have on any showing displayed an amazing degree of durability – as some would think, an excessive degree of durability.
Yet I think that the nuance in my title is justified.  The judge of today is operating in an environment significantly different from that in which his or her predecessor operated 50/100 years ago.  I think many judges would agree on the truth of that proposition, but would then compose different shortlists of relevant changes.  So I shall compile my own shortlist of six changes on which I would like to comment, in no particular order of importance and acknowledging that another lecturer could identify six different changes, probably with equal plausibility.
I

My first topic relates to the growing impact of supranational law and multi-party international treaties.  While the principle of parliamentary sovereignty remains intact in all its Diceyan splendour, the practical impact of parliamentary sovereignty has in some areas been significantly weakened.  In practical terms it can no longer be said, without substantial qualification, that Parliament can do anything except make a man into a woman or a woman into a man.  Let me, to illustrate my point, go back to 1964 when Burmah Oil, it may be remembered, narrowly won a House of Lords decision entitling the company to recover compensation against the government for its oil installations destroyed in Burma in 1942 to deny them to the advancing Japanese.  The House of Lords announced its decision on  21 April 1964.  The government of the day responded by securing enactment of the War Damage Act 1965 which retrospectively reversed this decision.   There was no constitutional bar to prevent Parliament reversing the decision if a majority wanted to reverse the decision, as it did.  There was at the time virtually no decision which any judge could make which a government with a parliamentary majority behind it could not, if it chose, reverse.  Historically, that had always been so.
It is no longer so – or at any rate no longer so to the same extent.
The first and most obvious example of the change is of course the law of the European Union, binding on the United Kingdom as it is on other member states.  Now I do not want to become involved in a futile discussion whether our accession to the Community involved a surrender of parliamentary sovereignty.  Plainly it can be argued that Parliament, which enacted the European Communities Act 1971, could similarly repeal it, and that in the meantime effect is simply being given to Parliament’s wishes.  But this, I think, masks the reality.  It has been clearly understood for years that the law of the Community takes precedence over the national law of member states, whether the national law is made by Parliament or by judges, and it is difficult to see how the Community could operate in an orderly and effective way if this were not so.[2]  There was therefore no reason for any informed person to be surprised by the Factortame decision of the European Court of Justice, in effect annulling a statute of the British Parliament.[3]  Now it is theoretically possible, of course, to re-negotiate treaty provisions so as to escape the effect of legal decisions, but no one would suggest that that was an easy task.  In practical terms it is now true that a British judge who gives a judgment applying Community law is giving a judgment with which Parliament and the Government cannot effectively interfere, however much they may dislike the decision.  This is a situation with very few precedents in British history.
But it is not the only example I can give.  Let me instance the 1951 Geneva Refugee Convention, governing rights of asylum. This is of course an international convention which the signatory states bind themselves to observe.  It is an undertaking binding in international law.  But here there is no supranational body equivalent to the European Court of Justice, established to give authoritative rulings on differences of interpretation when they arise.  And differences do of course arise.  One concerned the entitlement to asylum of an applicant who complained of persecution for Convention reasons but persecution not carried out by agents of the state.  In some countries such applicants had been held to fall outside the Convention.  The House of Lords held that they fell within it.[4]  I consider that that decision was unquestionably right – which I can say without embarrassment, since I was not a party to it.  But that is not my point.  If the Government had thought the decision to be wrong, there were no easy options.  Again, amendments to the Convention would not be easy to negotiate.  To renounce the Convention would be a very extreme measure.  In cases such as this, and many other examples could be given, judicial decisions have an authority that Dicey would have found surprising – and no doubt very disturbing.
I could at this point touch on Human Rights.  But I think it deserves separate treatment, and I shall put it lower in my list.
II

My second heading is judicial review, meaning judicial review of administrative action.
Now there is of course nothing new about judicial review.  The old Latin names which describe the best known of these remedies – habeas corpus, certiorari, mandamus – are proof enough of that.  They are the traditional means by which the citizen has obtained redress against officials, ministers, departments, councils and all manner of bodies exercising public power.  What is new is the huge surge in the number of applications.  What used within comfortably living memory to occupy the Lord Chief Justice and two colleagues for a morning or two a week has come to occupy a number of judges all the time.
Why has this surge in the number of applications occurred?  It is not because of any major change in the substantive law.  The procedural rules were reformed in 1977 to make the process of application more efficient and intelligible.  But the law remained essentially the same.
The increase is not the result of any action or encouragement by the judges.  It is indeed often forgotten that the judges have no control over the cases which come before them – except by exercising their power to weed out cases which are obviously incapable of serious argument.  But it is litigants, not judges, who bring cases.
I would offer three explanations for the upsurge.  The first is found in the largely increased reach of government, particularly central government but also local government.  One need only let the mind range over a few of the fields in which government is active – immigration, education, housing and homelessness, social security, prisons, planning, the environment – to appreciate how many decisions are made every day.  And decisions in all these fields – many other examples could be given – have a direct and profound effect on people’s lives.  They are things people really mind about.  So it is not surprising that they will do all they can to obtain the redress to which they think themselves entitled.
The second explanation is, I think, that people are much more conscious of what they believe to be their rights, much readier to complain, much less deferential towards authority.  They are not willing to accept decisions just because that is what the man at the Town Hall or the woman in Whitehall has ruled.  Now I think, within reason, this is a healthy attitude.  One likes to think of the British as a proud, spirited, independent-minded people, not a race of serfs willing put up with almost anything, in a spirit of sullen resentment.  But I think the spirit I describe helps to fuel the demand for judicial review.
Thirdly, people on the whole come to the court when all else has failed.  They are, or think they are, unable to obtain redress by other means.  They have usually tried other means.  They have corresponded with the body or official in question.  They have taken the matter up with their Member of Parliament.  They may well have written to the Queen or the Prime Minister, and in former days to Lord Denning and Mr R.A. Butler as well.  They come to court as a last resort.
Whatever the reason for the upsurge in applications, I do not think there is room for very much doubt about the result.  There is a much more effective legal check on the exercise of public power than we have ever seen in this country before.
This has inevitably given the courts an enhanced role in protecting citizens against the unlawful exercise of public power.  I stress unlawful, because unlawfulness in one shape or form is the only ground on which a judge may interfere with the exercise of public power.   It is never for the judge to decide whether A should be housed by the local authority or whether B should have planning permission or whether different provision should have been made for C’s special educational needs.  The only question for the judge is whether the challenged decision was lawfully made.  My belief is that judges do their utmost to respect that fundamental constraint.  But there are cases where the boundary is not as clear as one would wish.
III

My third heading is Crime – perhaps a surprising inclusion since the trying and sentencing of criminal offenders is among the oldest of judicial functions, and the function with which, in the public mind, judges are most immediately associated.
This is of course true.  What is new, I think, is the politicisation of criminal justice and the prevalence of very partial and often very ill-informed comment on the subject.
Now I accept of course that the trial and punishment of criminal offenders are a proper subject of public and parliamentary concern.  Parliament breaches no constitutional principle in laying down maximum penalties, or altering them, or on occasion prescribing fixed or minimum sentences.  And there has always been a public appetite for lurid and gory details of spectacular crimes.
I nonetheless think it regrettable that criminal justice issues should have become so highly politicised.  All law-abiding citizens have a strong interest in maintaining law and order.  The best ways of achieving those elusive ends are questions amenable to objective study, analysis and research.  The process is not helped by public clamour and popular agitation.
I describe this tendency as regrettable for three main reasons.  First, it encourages a belief that the connection between the administration of criminal justice in the courts and the prevalence of crime in the community is much closer than in truth it is.  No one but an anarchist would suggest that those convicted of the most serious crimes should not be severely punished.  But it is easy to exaggerate the wider effect of severe sentences.  It is an unhappy fact, but a fact, that only a relatively small minority of offenders are ever caught.  So the deterrent effect of knowing that if a crime is committed retribution will follow is greatly weakened.  And very many criminals do not weigh up the pros and cons of their proposed criminal conduct in anything approaching a rational way.  They are often of very low intelligence, or fired by drink or drugs, or temperamentally inclined to live from hour to hour.  Most violent and sexual offenders are not very rational people.  While court procedures should be efficient and, above all, fair, taking account of the interests of the prosecutor, the defendant, the victim and the public, technical changes in evidence and court procedure have at best a very indirect effect on the incidence of crime.
Secondly, there is, in my opinion, a grave danger in the public hue and cry which now routinely follows the commission of various types of crime.  It puts great pressure on the police to find a culprit.  No police force wants to be publicly portrayed as having failed in its duty.  But excessive pressure to produce results brings its own dangers, as the bitter experience of a series of notorious miscarriage of justice cases has shown.  And even if one accepts that a jury, corralled in the unfamiliar surroundings of a courtroom, can make the imaginative effort to clear their minds of all they have seen and read elsewhere about the case they are trying, it must sometimes be very hard for a defendant to believe that he is appearing before the independent and impartial tribunal to which the law entitles him and enjoying the fair trial which is the birthright of every British citizen.
The media clamour which now surrounds the administration of crime is regrettable, thirdly, because the exercise of sentencing discretion by the judge is, as I would suggest, the surest safeguard against injustice.  I do not of course argue that judges never pass inappropriate sentences.  They are human.  They err.  But if the sentence is too severe, the defendant can appeal and the Court of Appeal can review it.  If the sentence is too lenient the Attorney-General can, and does, ask the Court of Appeal to increase it.  The growing unwillingness to accept that judges exercise their sentencing powers in the interests of the public and with a considerable body of experience and information to guide them is one of the sadder features of the contemporary scene.
It is also somewhat ironic.  We were many of us reared on a caricature of the red judge as an elderly ogre lashing out savage sentences on meek and somewhat unthreatening defendants.  Almost overnight, as it seemed, the caricature changed, and the judges were portrayed as flabby do-gooders unwilling to punish anyone (except perhaps the victim) for anything.  It will surprise no one that I see no great measure of truth in either caricature.  But I think it worth observing that we are and always have been a very punitive society.  The level of sentences here is significantly higher than in neighbouring countries of Western Europe.  There are more life sentence prisoners in this country than in the rest of Western Europe put together.  I venture to wonder if the solution to our problems really lies in an endless succession of massive criminal justice bills.
IV

My fourth topic is quite different.  It is the new, or newish, phenomenon of bringing before the court questions of a largely moral or ethical nature which in the past were not raised at all or, if raised, were resolved elsewhere.
Should a mentally-handicapped adult, incapable of looking after a child, be sterilised to allow her to live a reasonably free social life in the hospital where she is a voluntary patient?[5]
Could a life-saving blood transfusion be lawfully administered to a conscious 14-year old girl who, as a Jehovah’s Witness, was adamantly opposed to the procedure?[6]
Was it permissible to stop the artificial feeding of a patient in a persistent vegetative state with no hope of recovery, in accordance with the wishes of the parent and the recommendation of the doctor responsible?[7]
Should conjoined twins be surgically separated, causing the immediate death of one but enabling the other to survive, when inaction would lead to the death of both, but when such separation was contrary to the strong religious beliefs of the parents?[8]
Should the Director of Public Prosecutions undertake not to prosecute the husband of a terminally ill and incapacitated wife if, at her request, he assisted her to commit suicide?[9]
I have no doubt that some of these cases will be recognised, and the outcomes perhaps remembered.  But I am not so much interested in the outcomes as in the fact that the cases came before the courts at all.
If a practitioner is asked to advise on a case of this kind, or a judge is asked to decide it in court, their professional reaction is the same.  Presented with a problem like this they search for legal principles to apply in order to reach a legally principled solution.  When judgments come to be delivered, often of quite considerable complexity, there is much discussion of what are thought to be the relevant legal principles.
But on one view these are not really legal issues at all.  They are issues of an ethical and moral nature, calling for value judgments of what may be a very personal and debatable kind.  Some judges have taken the view – as in the case of Tony Bland, the young Hillsborough victim in a persistent vegetative state – that these matters are very unsuitable for judicial resolution, and should be governed by rules laid down by Parliament, to give the seal of democratic approval to the resolution of such sensitive questions.
One can see considerable force in this view.  But when these cases came before the courts Parliament had in fact laid down no rules.  When a parliamentary committee was established, in effect to consider cases such as Tony Bland’s, it produced a persuasive and expert report, recommending an approach not very different from that of the court.  But its recommendations have never been enacted.  In the meantime, cases come before the courts and the judge has to decide.  There are some issues which the courts will declare to be non-justiciable. But such cases are very rare.  In the ordinary way, for better or worse, the judge has to do his or her best to resolve the matter one way or the other.
It is easy to feel that there ought to be a better way, much less easy to know what it is.  On the whole, where people come to court with a genuine problem, desperate for an answer, I think it preferable to try and give them one.  But whatever answer is given, law is made, and this will affect the next case to come along.  The resolution of this kind of problem in this kind of way is, I think, at least in this country, relatively novel.
V

The Human Rights Act 1998.  It is very well-known that the United Kingdom has been bound in international law to observe the European Convention on Human Rights since its accession in 1951, and individuals have enjoyed a right of petition since 1966.  But the Convention formed no part of the domestic law of any part of the UK and therefore British courts could not apply its provisions directly.
I was for a number of years before 1998, following in the footsteps of very distinguished pioneers, a strong supporter of incorporation.  This was not because I regarded this country as a place where human rights were routinely neglected or abused.  On the contrary, I was and am proud of this country as one where a number of the most important human rights were first recognised and as a place where human rights have, on the whole, been well-respected.
My reasons for favouring incorporation were three-fold.  First, it is very important that our institutions should to the greatest extent possible command the loyalty and confidence of the people.  This is true of Parliament, it is true of the conduct of executive government, it is true of the courts: all are important democratic institutions.  But it is difficult to imagine anything more subversive of public confidence in the courts than a general, and to some extent justified, belief that there exists a higher form of justice, unavailable from British judges sitting in the UK, but available from a cross-section of European judges sitting in Strasbourg.  I cannot understand how anyone concerned about the perceptions of the public could regard this situation as tolerable.
Secondly, I thought that the United Kingdom would tend to fare better in Strasbourg if the court there had the benefit of a reasoned British judgment on the point at issue, which until the Act came into force they had never had.  It is a little too soon to know whether this expectation will be fulfilled or not.  But I think the omens are encouraging.  We are obliged by the Act to take account of the Strasbourg jurisprudence, which we do.  But we are not strictly bound to follow it, and have on occasion given reasons for not doing so.  The Strasbourg court has examined these reasons and on occasion responded to them.  There is the making of a constructive dialogue.  This is a potentially beneficial relationship.
Thirdly: while, as I have said, I think human rights have been generally well-respected in this country, there is always a risk that a democratic majority may neglect the needs and deserts of an unpopular – and perhaps despised – minority.  This was recognised by the framers of the American Constitution when the exercise of democratic power was constrained by the first ten amendments.  There was no comparable curb in our unentrenched constitution.  And cases decided in Strasbourg have exposed weaknesses in our protection of minority groups with little effective means of exerting political pressure: homosexuals, mental patients, Gypsies, prisoners, children, immigrants and others.  The changes made in response to adverse decisions relating to these groups have, I think, been undoubtedly beneficial.
It cannot plausibly be argued, in my opinion, that the Human Rights Act erodes the sovereignty of Parliament or amounts to a usurpation of power by the judges.  In the first place, the judges exercise no power in this field which has not been expressly conferred by Parliament.  In the second, and rightly, they have no power to annul parliamentary legislation but only to declare it to be incompatible with the Convention.  As was expected, this power has so far been exercised infrequently, but when it is the power and duty to remedy the incompatibility lies with a minister answerable to Parliament.
However, the effect of the Act is to require the judges in appropriate cases to apply the Convention.  They must decide whether one of the protected rights is infringed.  They must, under a number of articles, consider whether the infringement is directed to a purpose accepted in the Convention as legitimate.  They must consider whether the infringement goes beyond what is necessary in a democratic society.  And they must consider whether the infringement goes beyond what is necessary to achieve the legitimate end of view.  This does involve a change in the judge’s role, not a fundamental change because judges continue to be guided so far as possible by precedent and settled legal principles, but a change nonetheless towards a more evaluative role.  It therefore qualifies for a place in my list of changes.
My personal opinion, no doubt predictably, is that over the period of nearly three years since the Act became effective in England and Wales it has worked pretty well.  There are of course those, some of them in high places, who regard it as a charter for mischief-makers, busybodies and nutters, and it is probably true that only a newly-elected government unused to office would ever have introduced the Act.  There are also those who regard the Act, or the judicial interpretation and application of it, as a great disappointment, a lost opportunity to turn the world upside down.  But to those who had general confidence in our ways of doing things it never seemed likely that the world would be turned upside down.  Some of the decisions made under the Act are doubtless debatable.  But on the whole I think the trend of decision-making has been careful, sensible and restrained.  I was, and I remain, an optimist.
VI

I turn then to my last and sixth heading - comparative law.  I think it is true that our courts have come to pay much closer attention to what courts and judges in other countries have decided.  This is perhaps another surprise inclusion, since comparative law was recently described by one of its very leading proponents as an academic “ghetto”.[10]  What I am describing is, I must confess, a process which is probably in its early stages.  But I think it is a change worthy of note.
A generation ago, anyone qualifying as a lawyer in England and Wales was educated up to a (sometimes not very advanced) point in the principles of our own law, with little or no exposure to any foreign law save for some possible exposure to Roman law.  In Scotland the situation was, I think, somewhat similar, although it was the principles of Scots law which formed the staple and the exposure to Roman law was greater.  In the course of practice here, reference was made to Commonwealth authority on occasion – particularly Canada, Australia and New Zealand – and sometimes the United States and Scotland.  Again,  I understand the position was much the same in Scotland, although there was much stronger resistance to the citation of English authority in Scotland than there ever was to the citation of Scots authority in England.
Our accession to the European Community was bound to modify our position of rather unsplendid isolation and it exposed us to European influences in an institutional way for the first time since the Middle Ages.  It brought home to rather insular British lawyers that our European partners are heirs to a great tradition which has strengths and weaknesses as compared with the common law but is not a poor country cousin.  As a French minister of justice observed on a recent visit to London, “There are the two great legal traditions of the world: there is yours, and there is ours”.
This exposure has led to increased interest in the laws of continental Europe among practitioners, academics and judges.  The process had been strengthened by various trends, among which I would list
(i)         increased attention to the decisions of the European Court of Human Rights, drawing on the largely civilian traditions of the member states of the Council of Europe and exerting considerable indirect influence even before the Convention was incorporated;
(ii)         increased recognition that courts all over the world – not just the old Dominions and the United States – are facing and seeking solutions to very much the same problems and that valuable lessons are to be learned from the experience of others; and
(iii)    the greatly increased availability of foreign decisions through the internet and electronic databases, making it very easy to discover whether a problem has arisen elsewhere and what decision was reached.
I would add, in an appropriate spirit of humility, that there have been instances in which the Scots and the English have reached distinctively different solutions to the same problem, leading in the end to abandonment of the English rule in favour of the clearly superior Scots solution.[11]
I can illustrate my general point with three examples:
(i)      A father, having quarrelled with two of his daughters, made a new will leaving neither of them anything.  A few months later they were reconciled and the father instructed his solicitors to draw a new will leaving the daughters £9,000 each.  But the solicitors were dilatory and the father died before the new will was prepared.  So neither daughter received anything under the will.  They claimed damages against the negligent solicitors.  Their problem was that they had never been clients of the solicitors, they had never had any right to receive anything and if judgment were given in the daughters’ favour the effect was to increase the size of the estate by £18,000.  The relevance of this example for present purposes lies in the reliance by the leader of the House of Lords majority, who upheld the daughters’ claim, on doctrines clearly recognised in German law but lacking any English counterpart.[12]
(ii)      Example number 2.  A number of men had worked for a series of employers in the asbestos industry.  In each of these employments they had been negligently exposed to unlawful quantities of asbestos dust and fibre.  They developed cancer of the lung as a direct result of this exposure to fibre.  But the evidence was that a single fibre could, as likely as not, have caused the cancer, and there was no way of knowing which of the employers had exposed each man to the delinquent fibre.  On a conventional approach to causation none of the men was entitled to anything, since he could not show that the negligence of any particular employer had caused his injury.  So the Court of Appeal dismissed the claim.  In taking a different view, holding that the men were entitled to recover against all the employers, the House of Lords drew attention to principles applied not only here and in the United States, Australia and Canada but also in The Netherlands, Germany, Greece, Austria, France, Norway, Italy, South Africa and Switzerland.[13]
(iii)       Example number 3.  A mother wishes to have no or no more children, consults a doctor, makes her views known and undergoes a sterilisation operation with a view to avoiding pregnancy.  The operation is negligently performed and she becomes pregnant.  She does not wish to terminate the pregnancy and she bears a child.  The question then arises: what costs other than those of the pregnancy itself can the mother recover against the negligent surgeon?  There are several possible solutions: the full cost of rearing, feeding, clothing and educating the child until the age of majority; that cost less a deduction to reflect the benefit of the child’s “aid, comfort and society” to the parents; or, in the case of a healthy mother and a healthy child, nothing.  In favouring the last of these solutions the House of Lords considered decisions in the Commonwealth (Australia, Canada, South Africa, New Zealand), the United States and Europe (France, Germany, The Netherlands, Austria) where the same or similar problems had arisen and each of these answers had found support.  The law remains in a state of development.  The High Court of Australia is due to deliver a major decision within days.  The House of Lords has recently heard argument in an appeal raising a variant of this problem.  It is very unlikely that a common solution will ever emerge, and there is no reason why it should.  But it seems to me to be a valuable, and in many ways novel, step forward that in seeking to answer these difficult, and in human terms important, problems, we have the opportunity of learning from the reasoning, the experience and, not least educative, the mistakes of others.
VII

I had intended to end this lecture by touching briefly on the implications for the future of the changes I have so far been discussing.  As it happens, recent events have, rather unexpectedly, pre-empted my remarks.  But I must hope they have lent them a certain topicality.  I mention three subjects.
(1) The appointment and promotion of judges
It was always predictable (and predicted) that the enhanced role of the judges in modern British society would focus attention on the process by which they were selected.  Successive Lord Chancellors have recognised this by taking steps to make the process more open and transparent.  They have been right to do so, and it is doubtless true (as Lord Irvine had come to think) that further steps in the same direction were called for.  Such proposals are not therefore unwelcome, and are a proper subject of public debate. 
But I think it very important that any proposed changes should preserve and build on the very considerable strengths of the existing system.  We have a judiciary whose personal and professional integrity is equalled in very few countries of the world and exceeded in none.  We have over the last half century established a judicial appointments system free of the taint of political partisanship, a boast which very few countries could credibly make.  We have judges who have shown themselves independent of government, central and local, independent of corporate interests and pressure groups, independent of media clamour and – not least importantly – independent of each other.  And we have a judiciary of high quality which, in its higher reaches, can hold its own intellectually with the best in the world.  Even in countries where, with the shrunken role of the Privy Council, respect for our opinions is no longer required, it continues to be regularly shown.  At home, despite the best efforts of many commentators, the judiciary continues to command the respect of the public to an extent greater than some other of our institutions.  These are very important strengths. 
It is, as all would recognise, a blemish of our system that the judiciary includes too few women and too few members of ethnic minorities.  Successive Lord Chancellors have, to my personal knowledge, striven to mitigate this blemish, so far as they could do so consistently with their overriding criterion of making appointments on merit.  It is a blemish which time will further mitigate.  But we should now be ready to recognise that the public interest requires recruitment of the best candidates, whether or not they conform to the traditional mould and even if some revision of traditional working practices is called for.  On the other hand, an ill-considered switch to a career judiciary, however appropriate elsewhere, might undermine the qualities I have noted and serve no public interest save that of the Treasury.   I very much hope the forthcoming consultation will be open-minded and will pay close attention to the experience of other countries.  We run the risk of throwing a pearl away richer than all our tribe.
(2) A new Supreme Court of the United Kingdom
The exercise of judicial power by one House of the Legislature was discontinued by the American colonies when they became independent, was derided by Bentham and was, somewhat more surprisingly, denounced by Bagehot, who in 1867 wrote:
‘I do not reckon the judicial function of the House of Lords as one of its true subsidiary functions.  First because it does not in fact exercise it, next because I want to see it in appearance deprived of it.  The supreme court of the English people ought to be a great conspicuous tribunal, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly.’
Here, the practice has survived, at times precariously, for historical reasons.  The case for change, which I have espoused, does not rest on the failings of the House of Lords as a judicial body.  Indeed, due to the contributions of a series of outstanding judges over the last 40 or 50 years, its judicial reputation probably stands higher now than it has ever done.  Calls for abolition of this final avenue of appeal – authoritatively voiced as recently as 1963 – are no longer heard.  The case for change rests on two propositions: first, that institutional structures should reflect constitutional realities; and second, that the serving Law Lords are judges, not legislators.  This latter fact is evidenced by their much reduced participation in debate.  Some have made no maiden speech.  Others have not uttered for years.  This growing tradition of reticence springs largely from an increasing sense of unease at the dual role of legislator and judge, unease felt both by the judges and by those who appear before them sitting judicially.  Such reticence may make for good judges but it makes for bad legislators, and the question must be asked why the Law Lords should remain members of the House at all. 
My own answer, with which some of my colleagues and many of our predecessors would disagree, is clear: they should not.  The time has come to establish the Appellate Committee as a Supreme Court of the United Kingdom.  It would exercise no powers the Appellate Committee does not already exercise.  Its membership would remain unchanged.  But it would be recognised as an independent court, and should be properly accommodated, resourced, staffed and equipped to meet the needs of the whole nation in a new and challenging world.  The country which sired those two world-famous twins – the common law and the rule of law – surely deserves no less.
(3) The office of Lord Chancellor
The time had probably come when the role of the Lord Chancellor called for revision.  His speakership role had come to occupy relatively little of his time, perhaps 30-40 minutes per parliamentary day.  His active judicial role had also shrunk to very modest proportions: over the last 60 years the Lord Chancellor has sat judicially for an average of about 6 days per year only, in recent years fewer.  This has been due partly to want of time (and appellate hearings at this level tend to be time-consuming), partly to perceived conflicts.  The Lord Chancellor’s three-in-one role, easily caricatured because of its Gilbertian overtones, had probably had its day.
But the Lord Chancellor’s recognised status as head of the judiciary was important.  It enabled him to appoint and on occasion rebuke judges otherwise than as a member of the executive.  And, more importantly, it gave him, as a senior, respected and authoritative minister and judge the opportunity, if he chose to exercise it, to act as the constitutional conscience of the government and the guarantor within government of judicial independence, itself universally recognised as a cornerstone of true democracy.
            
Under our constitution it was lawful to announce the proposed abolition of the office of Lord Chancellor without consulting the House whose speaker he was or the judiciary whose head he was.  Whether it was wise to do so is another question, but not one I wish to address.  It concerns the past.  I am concerned with the future.  Every constitution represents a balance between different interests, different values and different organs of the state.  There is a need for checks and safeguards.  The office of Lord Chancellor was one such, and importantly so.  If an effective check or safeguard is removed, it should be replaced.
         
Now it may well be, and we must devoutly hope, that successive Secretaries of State for Constitutional Affairs will provide that replacement.  If that office is held by senior, authoritative, respected, politically-disinterested ministers, and if those ministers act as robust champions of constitutional propriety and judicial independence, then the core of the Lord Chancellor’s role will be preserved, if under a different name.  Shedding the Lord Chancellor’s roles as speaker and judge need not emasculate that core role, and I am sure is not intended to do so.  I do however regard the conditions I have spelled out as crucial if a safeguard of proven value, which has served us well over many centuries, is not to be lost, perhaps for ever.

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[1]   Civil Procedure Act 1346 (20 Edw III c.1), repealed by the Statute Law Revision and Civil Procedure Act 1881.
[2]   NV Algemere Transporter Expeditie Onderweming van Gend en Loos v Nederlandse Administratie de Belastingen {1963] ECR 1; Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629.
[3]   R v Secretary of State for Transport Ex p Factortame [1999] 1 AC 603.
[4]   R v Secretary of State for the Home Department Ex p Adan [2001] 2 AC 477
[5]   In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, following In re B (a minor) (Wardship: Sterilisation) [1988] AC 199.
[6]   Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810
[7]   Airedale NHS Trust v Bland [1993] AC 789
[8]   In re A (Children) (Conjoined Twins: Separation) [2001] Fam 147.
[9]   R (Pretty) v DPP (Secretary of State for the Home Department intervening) [2002] 1 AC 800
[10]   Markesinis, Comparative Law in the Courtroom and Classroom (2003), page 3.
[11]   See, for example, The Atlantic Star [1974] AC 436; MacShannon v Rockware Glass Ltd [1978] AC 795; Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) [1987] AC 460.
[12]   White v Jones [1995] 2 AC 207.
[13]   Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32.