Ahead of next Tuesday’s Parliaments, Politics and People seminar, we hear from Dr Ben Griffin of the University of Cambridge. On 2 May between 5.30 p.m. and 6.30 p.m., Ben will discuss the relationship between liberalism, the law and Parliament in modern British history.
The seminar takes place on 2 May 2023, between 5:30 and 6.30 p.m. You can attend online via Zoom. Details of how to join the discussion are available here
An essential feature of liberal government is that it seeks to limit the scope of politics. In contrast to absolutist or totalitarian regimes, liberal states deny that they are appropriate authorities to pronounce on the truth of scientific or religious statements. For example, such matters are deemed outside the sphere of ‘politics’. This means that one possible history of modern British politics is a history of how the boundaries of ‘the political’ have been created and policed.
One of the most striking examples of this boundary-work has been the way in which, during the nineteenth century, ‘law’ was separated from ‘politics’ in new ways. That project required fundamental reform of Britain’s governing institutions, and it established modern politics as qualitatively different from what had gone before.
In the eighteenth century, law and politics were entangled in ways that can seem very unfamiliar to a modern observer. Eighteenth-century political discourse was heavily influenced by concepts drawn from the common law, and parliamentary politics was transacted, as Sir Lewis Namier wrote, ‘to a disastrous extent, in terms of jurisprudence’. The Wilkes agitation and the impeachment of Warren Hastings offer just two examples.
Institutionally, the Privy Council combined executive and judicial functions, while the House of Lords was simultaneously part of the legislature and the final court of appeal. In an age when the monarch was the focal point of political life, the common law judges were seen as representing the Crown and were sometimes regarded as members of the government. Many local government functions were carried out by courts of law, especially Quarter Sessions in the counties. The justices of the peace who presided there were often appointed on the basis of their party allegiance, and they were expected to play an active role in local political contests.
The entanglement of law and politics can be seen most clearly in the fact that many MPs simultaneously held judicial offices. Senior English common law judges had been excluded from the Commons since 1605, and the Scottish judges were excluded in 1733, but many judges remained. The Master of the Rolls, the second most senior Chancery judge, often sat in the Commons, as did the judges of the ecclesiastical and Admiralty courts, and many judges of the ancient inferior courts, such as Bristol’s Tolzey court and the Liverpool Court of Passage. Large numbers of recorders (barristers who worked as part-time judges), and even more magistrates, sat in Parliament – sometimes representing the same areas in which they acted as judges. Consequently, it would frequently have been difficult for local people to distinguish between law and politics as discreet forms of governance.
In the nineteenth century this began to change, as efforts were made to draw sharper boundaries between law and politics. This process proved to be messy, partial, and productive of awkward compromises, but it nonetheless transformed British politics. The House of Lords, for example, remained Britain’s ultimate court of appeal until 2005; but it did not escape change. As late as 1834, appeal cases had been decided without law lords present, but in 1844 a new convention was established that lay peers should not vote on such cases at all. The creation of a specialist judicial committee of the Privy Council in 1833 similarly signalled a desire to strengthen the hand of professionals.
The years after 1820 saw concerted efforts to reduce the number of judges in the House of Commons: the Irish judges were excluded in 1821; the position of the Welsh judges was increasingly controversial until they were abolished in 1830; recorders were banned from representing the boroughs where they performed judicial duties in 1835; in 1833 a select committee recommended barring the judges of the Admiralty Court and ecclesiastical courts from the House of Commons, and the Admiralty Judge was successfully excluded in 1840. There were also unsuccessful efforts to bar all recorders from the Commons in 1837, and to bar the ecclesiastical judges and the Master of the Rolls in 1853 (the latter finally done in 1873). This process continued up until the 1957 House of Commons Disqualification Act, which barred a large number of the remaining judges.
Alongside these formal changes was the development of informal conventions that judges should retreat from the political arena. For example, when, in 1922, the Lord Chancellor became aware that the Recorder of London intended to continue as an MP, enormous pressure was brought to bear behind the scenes to get him to retire. The same Lord Chancellor, Lord Birkenhead, told the House of Lords that
Sixty years ago it was not uncommon to find Judges sitting in the House of Commons. Gradually evolving a policy which I thought, until recent times, had become the subject of universal admission, those who were interested in our constitutional practice found that the only road alike of sanity and of safety was to exclude our Judges from all, even the slightest, participation in political affairs.
Hansard, 29 Mar. 1922
As a result of these changes, law and politics stood in a very different relationship to one another by the middle of the twentieth century than they had in the middle of the eighteenth.
What had caused this transformation? First, the fears of popular radicalism from the outbreak of the French Revolution to the climax of Chartism clearly drove a concern to show that the legal system was fair and impartial. A similar dynamic re-emerged in the early twentieth century, when concerns that the courts were hostile to trade unions prompted renewed efforts to restore public trust by depoliticising the judiciary.
A second reason is the professionalization of the law. As a legal career came to require more rigorous forms of training it was removed from the sphere of the gentleman amateur. And as new forms of technical legal knowledge developed, the language of the law ceased to be the language of political debate.
Finally, the rise of party politics created forms of partisanship that were deemed less compatible with judicial activity than those that had prevailed in the late eighteenth century, when the majority of MPs had claimed to be independent of party. The adoption of party labels, alongside the formalisation of party organisation, party funding, and parliamentary whipping, made it significantly harder to claim that a judge in Parliament could be impartial when sitting on the bench.
This story has considerable importance for the way that we think about British political history. The drawing of sharper boundaries between law and politics helps us to explain a major historical question: namely, why the British public have been willing to cede so much power to a handful of unelected and unaccountable judges.
It also helps us to understand why some disputes have been conceptualised as political problems, to be resolved by lobbying, petitioning and voting, while other problems have been identified as legal problems, to be resolved by an entirely different set of mechanisms. In this way, redrawing the boundary between law and politics determined the forms by which social hierarchies could be changed, and the ways in which change was resisted or impeded in modern Britain.
BG
The seminar takes place on 2 May 2023, between 5:30 and 6.30 p.m. You can attend online via Zoom. Details of how to join the discussion are available here
Further reading
Lord Birkenhead, Points of view (2 vols., 1922)
Ben Griffin, ‘Paternal rights, child welfare and the law in nineteenth-century Britain and Ireland’. Past & Present 246 (2020), pp. 109-47
Norma Landau, The justices of the peace, 1679-1760 (Berkeley, California, 1984)
David Lemmings, ‘The independence of the judiciary in eighteenth-century England’ in Peter Birks, ed., The life of the law (1993)
Sir Lewis Namier, The structure of politics at the accession of George III (2nd ed., 1957)
Gerald Postema, Bentham and the common law tradition (2nd edn., Oxford, 2019)
Robert Stevens, Law and politics: the House of Lords as a judicial body, 1800-1976 (N. Carolina, 1978)
The History of Parliament 