One of the first books I bought as a law student was Salmond on Jurisprudence. It was the twelfth and last edition. All I remember of it is a hurriedly written note printed immediately after the preface. It quoted an announcement that the then Lord Chancellor, Lord Gardiner, made on 26 July 1966 “on behalf of himself and the Lords of Appeal in Ordinary”. Even though the Lord Chancellor’s announcement was released “on the eve of going to press”, it was welcomed by the book’s editor. “However,” he added ruefully, “it does render out of date much of our discussion on precedent in the House of Lords”.
This was, of course, the famous Practice Statement in which the Law Lords freed themselves from the self-imposed obligation to follow their previous decisions. In future, they would be willing to depart from precedent when it appeared right to do so. We had to wait nearly 35 years for the Law Lords to think of something important enough to justify another policy statement in the chamber. This time, it was made by Lord Bingham, the senior Law Lord, rather than the Lord Chancellor. But Lord Bingham’s statement last month was something of a disappointment.
It came in response to a recommendation from the Royal Commission on Reform of the House of Lords, the Wakeham Commission. Lord Wakeham recommended that the Law Lords publish a “clear framework of principles” which they observed when participating in debates and votes in the second chamber and when considering their eligibility to sit on related cases. He wanted to clarify the line between the Law Lords’ judicial functions and their role in the legislature. In response, the Law Lords insisted that they had every right, as peers, to participate in the business of the House. But they considered themselves bound by two general principles – first, they did not think it “appropriate to engage in matters where there is a strong element of party political controversy” and secondly, they would “bear in mind that they may render themselves ineligible to sit judicially if they were to express an opinion on a matter which might later be relevant to an appeal to the House”.
So no change there – and no attempt to meet Lord Wakeham’s concern that the existing conventions “had been under some pressure in recent months”. What did the Law Lords mean by a “strong” element of party political controversy? Presumably Lord Hoffmann’s amendment to the Defamation Act 1996, specifically designed to allow the then Conservative MP Neil Hamilton to sue The Guardian for libel, was sufficiently weak? Or perhaps not – Lord Hoffmann later told me that he might not have got involved if he had realised the House of Lords would vote on party lines. And who is to decide whether a judge is ineligible to sit when he has expressed an opinion on a relevant matter? Lord Taylor of Gosforth, the former Lord Chief Justice, publicly supported Michael Howard’s proposal to limit the right to silence. It then fell to Lord Taylor to hear the first challenge to the Criminal Justice and Public Order Act 1994, which put the proposals into effect. Nobody was surprised when he dismissed the appeal. Let’s hope we won’t have to wait another 35 years for the next change of policy.
Joshua Rozenberg is the BBC’s legal affairs correspondent. He can be contacted at firstname.lastname@example.org