Leading Article: Twelve law lords don't make a supreme court

WITH ALL the British genius for making it up as we go along, we are approaching the situation where we have a Supreme Court in this country. Which has shone an array of arc lights on a small group of men who are more accustomed to working by candlelight, with rather unflattering results.

Today, the law lords reconvene to consider the case of Augusto Pinochet, wanted in Spain on charges of crimes against humanity - having made a mess of it the first time round. However, the mess in which they find themselves is rather bigger, wider and deeper than Lord Hoffmann's failure to notice that he was a patron of one of the parties appearing before him. The idea that Leonard Hoffmann should resign, therefore, is misplaced - and it should be noted that, despite reports of "pressure" on him to go, no one of any standing has in fact called for him to do so.

He made a mistake, but we should take care to understand the nature of the error. Are we to say that the only people qualified to serve are those discreet, boring or conservative enough never to have recorded a controversial opinion or affiliation in public? That would leave the law in the hands of the old elite who are members of gentlemen's clubs, and whose prejudices are more easily dressed up as "non-political". Nor can Lord Hoffmann be said to be prejudiced in favour of Amnesty International: last year he ignored its campaign to allow the execution of Trevor Fisher in the Bahamas, for whom the House of Lords was the final court of appeal. The problem arose only because in this case Amnesty was - unusually - allowed to give evidence to the House of Lords.

The law lords have taken fright and gone too far if Lord Hoffmann was persuaded not to sit in the case of the Bristol doctor simply because it turns on allegations of bias - and much too far if Lord Woolf was persuaded not to sit in today's Pinochet re-hearing simply because he has a reputation as a "liberal". There needs to be a distinction made between the idea of bias - everyone ought to have biases - and that of a conflict of interest.

Indeed, it is not for Lord Hoffmann to consider his position, but for Lord Irvine, the Lord Chancellor, to consider his - not in the sense of resigning, but genuinely in the sense of using his position as a politician and head of the judiciary to reform our highest court.

Instead of pointlessly telling the law lords that he did not want this sort of thing happening again, he should reconstitute them formally as a Supreme Court, with an open and fair system of appointment and clear rules about how they should operate, including a register of interests. Never mind the alleged bias of Lords Hoffmann and Woolf. What about the real bias of a court made up of 12 men and no women?