The controversy over the book ``Spycatcher'' by former secret agent Peter Wright has thrust into the limelight the role of the House of Lords as Britain's final court of appeal. Members of the ``Law Lords'' - a group of peers in the upper chamber who hand down judgments on disputed cases - are being accused of having made the law appear ``a ass'' by their 3-2 decision to hold up publication in Britain of the Wright memoirs, and to throw in for good measure a temporary ban on press reports about the legal wrangle surrounding it.
Some of the questions being asked in Britain about the team of nine peers who constitute the Law Lords include:
Do they comprise an outdated institution that should be replaced by a more modern final court of appeal?
Did they in the Wright case allow their personal opinions to influence their judgment?
Should they be required in future to take account of a written Constitution rather than depend on ancient precedents, past case law, and subjective interpretation of existing statutes?
Have they by their judgment in the Wright case prevented that case from being decided at trial when attempts are made to remove the present temporary injunction against publication of ``Spycatcher''?
Unlike the United States Supreme Court, which has its origins in a written Constitution, the Law Lords date from the Middle Ages, long before the House of Commons superceded the power of the House of Lords. Until 1876, the entire House of Lords delivered judgments, but now the task is handled by a group of professional lawyers who are appointed by the Queen on the advice of the lord chancellor. (The latter combines the functions of head of the legal profession, senior judge, speaker of the House of Lords, and the government's chief legal advisor).
In the ``Spycatcher'' case, the five Law Lords who sat were under heavy pressure to make a quick decision. They decided 3-2 against publication.
But when their individual comments on the judgment were published it became clear that they were deeply divided not only on the legal aspects of the case, but also on the rights and wrongs of giving Wright's memoirs full publicity.
Lord Bridge, the presiding judge, who was in the minority, said the ban on ``Spycatcher'' was a ``massive'' encroachment on freedom of speech. ``Freedom of speech is always the first casualty under a totalitarian regime,'' he said. If the government continued to fight the ban, it would face ``inevitable condemnation and humiliation.''
But Lord Ackner, on the side of the ban continuing, condemned the press for one-sided reporting that was ``an abuse of power.'' Lifting the ban would be ``a charter for traitors,'' he said. The two other peers who voted for a ban took a slightly less severe view.
The Law Lords' judgment has whipped up a major dispute among other eminent jurists who are also members of the House of Lords and believe the judgment is wrong. Lord Denning, a former Master of the Rolls (head of the Court of Appeal), said he found the minority's judgment ``more compelling'' than that of the majority.
Lord Scarman, one of Britain's greatest constitutional lawyers, also condemned the judgment, arguing that it showed the need for a written constitution to protect the rights of Britons.
Lord Devlin, who is famous for his efforts to imbue law with moral content, attacked the judgment on the grounds that by giving their detailed reasons for it the Law Lords had probably destroyed the case's chances of getting a fair hearing by the courts later on. (Attempts are being made to lift the temporary ban on publication.)
One of the effects of the controversy over ``Spycatcher'' has been to draw attention to the existence of the European Court of Human Rights. British citizens, dissatisfied with a ``final'' judgment by the Law Lords, can appeal to Strasbourg and have the case reheard. In recent years there have been a number of cases in which the Lords' judgments in the human rights field have been overturned, and British authorities have been obliged to accept the result.
Thus it could be that if the ``Spycatcher'' case comes to be heard in Strasbourg, Mr. Wright and those Britons who want free access to his memoirs will have to depend on a panel of European judges finding in their favor and telling the ancient Law Lords that they were wrong. The huge amount of publicity such a judgment would attract, many lawyers are saying, would be a body blow to the credibility of the House of Lords as a court.