Lord Cooke of Thorndon
originally published as a letter in the New Zealand Law Journal, April 1996, p.123
Dear Sir,
The recent ennoblement of Sir Robin Cooke raises some interesting questions as to the intended purpose of the peerage. It may have been that the ennoblement of Sir Robin Cooke was intended purely as an honour, as Mr Bolger suggested. Alternatively however, it may have been to enable him to undertake legislative or appellate work in the House of Lords. The latter however is an unlikely proposition since the function of a peer relates to the British judicial and legislative structure. There has been, moreover, no example of the bestowing of a peerage on a New Zealander since the early 1970's, and that was to a Governor-General who was essentially British. Lord Porritt and his predecessors retired to Britain, and took their seats in a legislative capacity in the House of Lords.
Although Sir Robin Cooke may not be a Lord of Appeal in Ordinary, that is no bar to his undertaking a judicial role in the House. All peers in theory have the right to vote, although the last non-judge to do so was Lord Denman in Bradlaugh v Clarke (1883) 8 App Cas 354, HL. Since the admission of specially ennobled law lords into the House of Lords in the late nineteenth century, appeals to the House of Lords have be heard before at least three judicially qualified lords.
The Lords of Appeal in Ordinary are appointed from the various British judicial benches, and comprise the principal working body of the House. However, other members of the House of Lords who have held high judicial office may hear appeals, and these are known as Lords of Appeal (a style to be carefully distinguished from that of Lords of Appeal in Ordinary).
There appears to be no good reason for Sir Robin Cooke to be created a peer unless it is to allow him to sit in the Appellate Committees of the House of Lords. He could continue to sit in the Judicial Committee of the Privy Council even after retiring from the Court of Appeal. Most importantly, peerages have never given on the advice of New Zealand ministers, and have no official precedence here. Indeed, in 1976 an article in the New Zealand Law Journal argued that hereditary titles have no legal status in New Zealand.
The conclusion must be that Sir Robin Cooke was made a peer solely to enable him to sit in the Appellate Committees of the House of Lords, since it would not have been to enable him to take part in the legislative functions of the House. The ennoblement of Sir Robin cannot have been intended purely as an honour, because peerages are not bestowed by the Crown in New Zealand.