The House of Lords, in addition to having a legislative function, has a judicial function as a court of last resort within the United Kingdom. Historically, the House of Lords also functioned as a court of first instance for the trials of peers and for impeachment cases. Today, the House's jurisdiction is essentially limited to the hearing of appeals from the lower courts. Appeals are technically not to the House of Lords, but rather to the Queen-in-Parliament. By constitutional convention judges known as the Law Lords, rather than all of the Lords, hear the appeals.
Parliament's role in deciding litigation originates from the similar role of the Royal Court, where the King dispensed justice. Parliament grew out of the Court and took on many of its roles. As lower courts were established, the House of Lords came to be the court of last resort in criminal and civil cases, except that in Scotland, the High Court of Justiciary remains the highest court in criminal matters.
Parliament originally did not hear appeals as a court might; rather, it heard petitions for the judgments of lower courts to be reversed. The House of Commons ceased considering such petitions in 1399, leaving the House of Lords, effectively, as the nation's court of last resort. The Lords' jurisdiction later began to decline; only five cases were heard between 1514 and 1589, and no cases between 1589 and 1621. In 1621, the House of Lords resumed its judicial role when King James I sent the petition of Edward Ewer, a persistent litigant, to be considered by the house of Lords. Petitions for the House of Lords to review the decisions of lower courts began to increase once again. After Ewer, 13 further cases would be heard in 1621. The House of Lords appointed a Committee for Petitions. At first, the Clerk of the Parliaments would bring petitions to the House, and the whole House could decide if they should or should not be referred to the Committee. As the number of petitions increased, the Committee gained the power to reject petitions itself.
Petitions to the House of Lords did not have to seek reversal of lower court judgments; often, petitions were brought directly to the Lords without prior consideration in the inferior judiciary. The practice of bringing cases directly to the Lords, however, ended with the case of Thomas Skinner v. East India Company. Thomas Skinner had established a trading base in Asia while there were few restrictions on trade there; later, however, the base was seized by the British East India Company, which had been granted a monopoly. In 1667, the King, Charles II, referred the case to the Lords after failed attempts at arbitration.
Replying to Skinner's petition, the East India Company objected that the case was one of first instance, and that the Lords therefore should not have accepted it. Notwithstanding the Company's protests, the House of Lords proceeded with the matter. Though lawyers argued that the House could only intervene after the lower courts had failed to remedy the case, the Lords decided in Skinner's favour in 1668. The East India Company then petitioned the House of Commons, arguing that the acceptance of a case in the first instance by the Lords was "unusual" and "extraordinary."
A famous dispute then broke out between the two Houses; the Commons ordered the imprisonment of Thomas Skinner and the Lords retaliated by ordering the imprisonment of the Company Chairman. In 1670, Charles II requested both Houses to abandon the case. When they refused, he ordered that all references to the case be expunged from the Journals of both Houses, and that neither body continue with the dispute. The House of Lords then ceased to hear petitions in the first instance, only considering them after the lower courts had failed to remedy them.
Even after Skinner's Case was resolved, the House of Lords and House of Commons clashed over jurisdiction in 1675. The House of Commons felt that the upper House had breached its privileges by considering cases in which members of the House of Commons were defendants. After the Lords considered Shirley v. Fagg (Sir John Fagg was a member of the Commons), the Commons warned the Lords to "have regard for their Privileges." Later, the dispute became worse when two more cases involving members of the House of Commons—Thomas Dalmahoy and Arthur Onslow (grandfather of Arthur Onslow the noted Speaker (1728-1761))—came before the House of Lords. One case was from the Court of Chancery, and the other from the equity branch of the Court of the Exchequer. The House of Commons challenged that the Lords could only hear petitions challenging the decisions of common law courts, but not those challenging the decisions of courts of equity.
The dispute remained unresolved when Parliament was prorogued in 1675. After the Parliament reassembled in 1677, the cases involving members of the House of Commons were quietly dropped and neither House revisited the dispute.
In 1707, England united with Scotland to form the Kingdom of Great Britain. The question then arose as to whether or not appeals could be taken from Scottish Courts. The Articles provided that "no causes in Scotland be cognoscible by the courts of Chancery, Queen's Bench, Common Pleas or any other court in Westminster Hall; and that the said courts or any other of the like nature after the union shall have no power to cognosce, review or alter the acts or sentences of judicatures in Scotland, or stop the execution of the same." The Articles, however, were silent on appeals to the House of Lords. In 1708, the first Scottish appeal to the Lords arrived, and it was accepted by the House. In 1709, the House ordered that no decree of the lower Scottish courts could be executed while an appeal was pending; that rule was only reversed by the Administration of Justice (Scotland) Act 1808, which provided that the lower Court could determine if the appeal justified the stay of the decree. In 1713, the House of Lords began to consider appeals from Scotland's highest criminal court, the High Court of Justiciary. In 1781, when deciding Bywater v. Lord Advocate, the House recognised that prior to the Union, the High Court of Justiciary had been the court of last resort in Scottish criminal cases. The House agreed not to consider further Scottish criminal appeals.
Current Appeals Jurisdiction
The judicial business of the House of Lords is now regulated by the Appellate Jurisdiction Act 1876. Generally, only important or particularly complex appeals come before the House of Lords. There is no further appeal from the House of Lords - it thus serves as a court of last resort for the United Kingdom.
The Lords cannot exercise judicial review over, or in any way strike down Acts of Parliament under the doctrine of Parliamentary sovereignty. In common with other courts in the European Union, however, they may refer points involving European Union law to the European Court of Justice. The Lords may also declare a law inconsistent with the European Convention on Human Rights pursuant to section 4 of the Human Rights Act 1998. Whilst this power is shared with the Court of Appeal and the High Court, such declarations are considered so important that the question will almost inevitably be determined in the House of Lords on appeal. However, the challenged law in question is not automatically struck down; it remains up to Parliament to amend the law.
In civil cases, the House of Lords may hear appeals from the Court of Appeal of England and Wales, the Court of Appeal in Northern Ireland and the Scottish Court of Session. Alternatively, cases raising important legal points may leapfrog from the High Court of England and Wales or High Court in Northern Ireland. Leave (or permission) to appeal may be granted either by the court whose decision is appealed or the House of Lords itself.
In criminal cases, the House of Lords may hear appeals from the Court of Appeal of England and Wales, the High Court of England and Wales, the Court of Appeal in Northern Ireland and the Court-Martial Appeal Court. In addition to requiring permission to appeal, an appellant must also obtain a certificate from the lower court stating that a point of general public importance is involved, is required for the appeal to proceed. The effect of this is that, in criminal matters, the House of Lords cannot control its own docket.
Appeals are not heard from the Scottish High Court of Justiciary.
Permission to appeal may be granted by an Appeal Committee. The Committee consists of three Lords of Appeal or Lords of Appeal in Ordinary. Appeal Committees may not meet while Parliament is prorogued or dissolved. Formerly, leave to appeal was unnecessary if two solicitors certified the reasonableness of the case. This procedure was abolished in English cases in 1934 and in Northern Irish cases in 1962. Scottish cases generally continue to come before the House of Lords in this manner (where two "advocates" certify the appeal as suitable").
An Appellate Committee, normally consisting of five Lords of Appeal in Ordinary or Lords of Appeal, hears the actual appeals. Seven Lords may sit in particularly important cases. On October 4, 2004 an unprecedented committee of nine Lords,including both Senior Law Lord Lord Bingham of Cornhill and Second Senior Lord Lord Nicholls of Birkenhead, was convened to hear challenges to the indefinite detention of suspects under the Anti-terrorism, Crime and Security Act 2001,and on December 16 it announced an 8-1 ruling against the Government. (http://news.bbc.co.uk/2/hi/uk_news/4100481.stm)
The determination of each Appellate Committee is normally final, but the House of Lords (in common with the Court of Appeal and High Court of England and Wales) retains an inherent jurisdiction to reconsider any of its previous decisions, this includes the ability to "vacate" that decision and make a new one. It is exceptional for the House of Lords to exercise this power, but a number of important cases such as Dimes v Grand Junction Canal (a seminal case on bias in England and Wales) proceeded in this way.
A recent example of the House of Lords reconsidering an earlier decision occurred in 2001, when the judgment in the case on the extradition of the former Chilean dictator Augusto Pinochet was overturned on the grounds that one of the Lords on the committee, Lord Hoffman, was a member of Amnesty International, a party involved in the case. The matter was reheard by a panel of seven Lords of Appeal in Ordinary.
Formerly, appeals were heard in the House of Lords Chamber. The Lords would sit for regular sessions after four in the evening, and the judicial sessions were held prior to that time. During the Second World War, the Commons Chamber was bombed, so the Commons began to conduct their debates in the Lords Chamber. The judicial sessions of the House were temporarily moved to a Committee room, which escaped the noise of building repairs. The temporary move later became permanent, and appeals are still heard in Committee rooms. No judicial robes are worn by the judges during hearings. Appellate Committees may meet while Parliament is prorogued. Additionally, if the Sovereign authorises the same, the Committee may meet while Parliament is dissolved.
Judgment is given in the main House of Lords Chamber during a full sitting. Sittings for the purposes of giving judgment are normally held at two o'clock on Thursday afternoons; non-judicial matters are not dealt with during these sittings. Only the Law Lords who served on the Appellate Committee speak, but other Lords are free to attend. After all five members of the Committee have spoken, the question is put to the House: "That the report from the Appellate Committee be agreed to." The House then votes on that question and on other questions related thereto; the decisions on these questions constitutes the House's formal judgment.
If the House of Lords is in recess, the Lord Chancellor or Senior Lord of Appeal in Ordinary may recall the House to give judgment. Judicial sittings may occur while Parliament is prorogued, and, with the authorisation of the Sovereign, dissolved. In the latter case, the meeting is not of the full House, but is rather of the Law Lords acting in the name of the full House. Judgment cannot be given between the summoning of a Parliament and the State Opening. No Parliamentary business is conducted during that time, except the taking of oaths of allegiance and the election of a Speaker by the House of Commons.
The Judicial Committee of the Privy Council, (which includes the twelve Lords of Appeal in Ordinary as well as other senior judges in the Privy Council) has little domestic jurisdiction. The Committee hears appeals from the appellate courts of many independent Commonwealth nations and crown dependencies. The Judicial Committee's domestic jurisdiction is very limited, hearing only cases on the competency of the devolved assemblies in Scotland, Northern Ireland, and Wales. The committee also acts as an appeal body from various professional bodies. Precedents set in devolution cases, but not in other matters, are binding on all other courts, including the House of Lords.
Formerly, the House of Lords constituted a court in certain trials, including trials of peers of the realm and impeachment cases. Such trials, however, do not occur any longer; trials for peers of the realm in the House were abolished in 1948, and impeachment has not occurred since 1806.
Peers of the Realm were formerly entitled to a trial in the House of Lords, just as commoners were entitled to trial by jury. Peers of Ireland were, after Union with Great Britain in 1801, entitled to be elected to the House of Commons, but during their service in the lower House their privileges, including the privilege of trial in the House of Lords, abated. Peeresses in their own right and wives or widows of peers were also entitled to trial in such a court, though they were themselves not members of the House of Lords. Widows of peers who later married commoners lost the privilege, but those who later married peers did not.
After the Grand Jury indicted a peer, the case was brought before the Court of King's Bench. The judges of that Court could not actually accept any plea of guilty or not-guilty, except a plea that the crime in question was previously pardoned. If pardon was not pled, the House of Lords issued a writ of certiorari commanding the King's Bench Court to send the case up to it. The Lord High Steward presided, but the entire House could decide all legal, factual or procedural disputes. At the end, the Lords then voted, starting with the most junior Baron, and proceeding forward in order of precedence, ending with the Lord High Steward. While jurors voted on oath or affirmation, a Lord could vote upon his honour.
If the House of Lords was not in session, the case would be referred to the Lord High Steward's Court. The Lord High Steward, who presided, decided questions of law or procedure, but a jury of "Lords Triers" determined the Court's verdict.
The last trial of peers in the House of Lords was in 1935, when Lord de Clifford was tried for motor manslaughter. In 1948, the Criminal Justice Act abolished the use of special courts for trials of peers. Now, peers are tried by regular juries.
The House of Lords also has the power to try impeachments. The House of Commons decides on "Articles of Impeachment," which are then brought before the House of Lords. Originally, the House of Lords held that it could only try peers upon impeachment. In 1681, however, the Commons passed a resolution arguing that they could impeach any peer or commoner they pleased, and for any crime, whether treason, a felony or a misdemeanour.
Normally, the Lord Chancellor presides at the trial. If, however, a peer is tried for high treason, the Lord High Steward presides. The House of Lords may decide the case by a simple majority. When the Commons demand judgment, but not earlier, the Lords may proceed to pronounce the sentence against the accused. It is possible for the House of Commons to refuse to press for judgment, in which case the accused, though convicted, is not subjected to punishment.
The accused may not, under the Act of Settlement 1701, plead a pardon to avoid trial in the House of Lords; the same rule does not apply in the lower courts. A convict, however, may be pardoned by the Sovereign. This practice differs from that of many other nations. For instance, in the United States, the President may not issue pardons in cases of impeachment. The Senate can do no more than remove the accused from office and bar him from future offices of public trust or honour, though the accused remains liable to trial and punishment in the lower courts after removal from office. In the United Kingdom, however, the impeachment trial is like any other trial: the House of Lords may impose the same sentence as any lower court, and the Sovereign may pardon the individual convicted upon impeachment like any other convict.
Impeachment was originally used to try those who were too powerful to come before the ordinary courts. During the reign of the Lancastrians, impeachments were very frequent, but they reduced under the Tudors, when bills of attainder became the preferred method. During the reign of the Stuarts, impeachment was revived; Parliament used it as a tool against the King's ministers during a time when it felt it needed to resist the tyranny of the Crown. The last impeachment trials were of Warren Hastings from 1788 to 1795 and the Viscount Melville in 1806.
Disputes involving peerage claims were normally referred by the Crown to the House of Lords, perhaps because hereditary peers were, prior to the House of Lords Act 1999, members of that House. Theoretically, the Crown, as fount of honour, is entitled to decide all questions relating to peerage disputes. In practice, however, such decisions are made in contentious cases only after a reference is made to the House of Lords.
Under modern procedure, the House of Lords refers the matter to the Committee for Privileges, which includes a number of Law Lords. The Law Lords are the ones who give opinions on the case, the other Lords normally concurring therein. The House of Lords then adopts the Committee's report and addresses the Sovereign, requesting the resolution of the case. The Sovereign then determines the issue as decided by the Privileges Committee.
Constitution of the Lords
At first, all members of the House of Lords could hear appeals. The role of lay members of the House in judicial sittings began to fade in the nineteenth century. Soon, only "Law Lords"—the Lord Chancellor and Lords who held judicial office—came to hear appeals. The last time that lay members of the House actually voted on a case was in 1834. The Lords later came close to breaching this convention a decade later, when the House was considering the case of Daniel O'Connell, an Irish politician. A panel of Law Lords—the Lord Chancellor, three former Lord Chancellors, a former Lord Chancellor of Ireland and a former Lord Chief Justice—opined on the matter. Immediately thereafter, lay members began to make speeches about the controversial case. The Lord President of the Privy Council then advised that lay members should not intervene after the Law Lords had announced their opinions. The last time a lay peer attempted to intervene was in 1883; in that case, the Lord's vote was ignored.
There was, however, no provision whereby the number of Law Lords could be regulated. In 1856, it was desired to increase the number of Law Lords by creating a life peerage. The House, however, ruled that the recipient of the peerage, Sir James Parke, was not entitled thereby to sit as a Lord of Parliament.
Under the Appellate Jurisdiction Act 1876, the Sovereign may nominate a number of Lords of Appeal in Ordinary to sit in the House of Lords. In practice, they are appointed on the advice of the Prime Minister (they are not covered by the recently established Judicial Appointments Commission). Only individuals who have held high judicial office for a minimum of two years or barristers who have been practicing for fifteen years may be appointed Lords of Appeal in Ordinary. By convention, at least two of the Lords of Appeal in Ordinary are Scottish and at least one is Northern Irish.
Lords of Appeal in Ordinary hold the rank of Baron and seats in the House for life. Under the Judicial Pensions and Retirement Act 1993 they cease to be Lords of Appeal in Ordinary at the age of seventy, or may be permitted by ministerial discretion to hold office as late as age seventy-five. The original Act provided for the appointment of only two Lords of Appeal in Ordinary, but now, twelve may be appointed; the number may be raised by a Statutory Instrument approved by both Houses of Parliament. Lords of Appeal in Ordinary are, by custom, appointed to the Privy Council if not already members. They serve on the Judicial Committee of the Privy Council, which is the highest court of appeal in certain cases. Lords of Appeal in Ordinary are often called upon to chair important public inquiries, such as the recent Hutton inquiry.
Two of the Lords of Appeal in Ordinary are designated the Senior and Second Senior Lords of Appeal in Ordinary. Formerly, the most senior of the Law Lords took these posts. Since 1984, however, the Senior and Second Senior Lords are appointed independently.
Lords of Appeal in Ordinary are joined by a number of Lords of Appeal. The Lords of Appeal are individuals who are already members of the House of Lords under other Acts (including the Life Peerages Act 1958 and the House of Lords Act 1999) who hold or have held high judicial office. High judicial officers include the Lord Chancellor and judges of the Court of Appeal of England and Wales, the Inner House of the Court of Session and the Court of Appeal in Northern Ireland. Additionally, a Lord of Appeal in Ordinary who has reached the age of seventy may become a Lord of Appeal. In recent years, a judge of an overseas appellate court (the Court of Appeal of New Zealand) has served as a Lord of Appeal.
Judicial appeals are heard by Lords of Appeal in Ordinary and Lords of Appeal under the age of seventy-five. Additionally, the Lord Chancellor for the time being may sit judicially without regard to age. Lords of Appeal in Ordinary are entitled to emoluments. Thus, Lords of Appeal in Ordinary cease to be paid at the time they cease to hold office and become Lords of Appeal. The Senior Lord of Appeal in Ordinary receives £185,705. The Lord Chancellor and Lord Chief Justice of England and Wales are the only judicial figures who receive higher salaries. Lords of Appeal in Ordinary receive £179,431.
By convention, only the Lords of Appeal in Ordinary and Lords of Appeal participate in judicial matters. The Lord Chancellor has the power to decide which Law Lords sit on Appeal and Appellate Committees, but in practice those decisions are taken by the Senior Lord of Appeal in Ordinary. When the House gives judgment, the regular quorum of three applies, but those three must be Law Lords. Normally, only the Law Lords on the Appellate Committee deciding a case vote when the House gives judgment.
The Lord High Steward presided over the House of Lords in trials of peers, and also in impeachment trials when a peer was tried for high treason; otherwise, the Lord High Chancellor presided. The post of Lord High Steward was originally hereditary, held by the Earls of Leicester. After the rebellion of one of the Lord High Stewards, the position was forfeited and re-granted to Edmund Crouchback, but it later merged in the Crown. The position was created again, but its holder died without heirs in 1421, and the post has since been left vacant. Whenever a Lord High Steward became necessary—at certain trials and at coronation—one was appointed pro hac vice. Once the trial or coronation concluded, the Lord High Steward would break his white staff of office, thereby symbolising the end of his service in that position. Often, when a Lord High Steward was necessary for trials of peers, the Lord Chancellor was appointed to the post.
The Lord High Steward merely presided at trials, and the whole House could vote. The position of the Lords Spiritual (the Archbishops and Bishops of the Church of England with seats in the House), however, was unclear. The Lords Spiritual, though members of the House, were not considered "ennobled in blood" like the temporal peers. Though they retained the right to vote in both trials of peers and impeachment trials, it was customary for them to withdraw from the chamber immediately before the House pronounced judgment. This convention was only followed before the final vote on guilt, and not on procedural questions arising during the trial.
Disputes over peerage claims are considered before the House of Lords Committee for Privileges. That Committee includes the Chairman of Committees and fourteen other Lords. The permanent members of the Committee are joined by four Law Lords named by the Senior Lord of Appeal in Ordinary. The Law Lords on the Committee are not permanent members; different Law Lords may sit for different cases. Normally, the Law Lords are the members who opine on the law, the other members merely concurring with their opinions. In hearing peerage claims, at least three Law Lords must be present in order to maintain a quorum.
In 1873, the Government introduced a bill to abolish the judicial role of the House of Lords in English cases (Scottish and Irish appeals were to be preserved). The bill passed, and was to come into force in November of 1874. Before that date, however, the Liberal Government of William Ewart Gladstone fell. The new Conservative Government, led by Benjamin Disraeli, passed a bill to postpone the coming-into-force of the bill until 1875. By then, however, the sentiments of the Parliament had changed. The relevant provisions of the bill were repealed, and the jurisdiction of the House of Lords came to be regulated under the Appellate Jurisdiction Act 1876. Under that Act, appeals are no longer brought in the form of petitions. Rather, appeals are formally made from the lower courts.
There are still concerns related to the role of the House of Lords as a judicial body. The senior judge and president of the appellate committees is the Lord Chancellor who is also speaker of the House of Lords and a minister in the cabinet. The participation of the Lord Chancellor in judicial sittings has varied over the years. Lord Gardiner (Lord Chancellor from 1965 to 1970) sat on four days, Lord Hailsham of St Marylebone (1970 to 1974 and 1979 to 1987) on eighty-one days, Lord Elwyn-Jones (1974 to 1979) on eight days, Lord Havers (1987) never, Lord Mackay of Clashfern (1987 to 1997) on sixty days and Lord Irvine of Lairg (1997 to 2003) on eighteen days. Lord Chancellors generally did not sit judicially when the Government had a stake in the outcome; during a debate in the Lords, Lord Irvine said, "I am unwilling to lay down any detailed rules because it is ever a question of judgment combined with a need to ensure that no party to an appeal could reasonably believe or suspect that the Lord Chancellor might, because of his other roles, have an interest in a specific outcome. Examples might be where the lawfulness of a decision or action by any Minister or department might be at issue." The present Lord Chancellor, Lord Falconer of Thoroton, has decided not to sit judicially at all.
The government has announced its intention to abolish the judicial functions of the House of Lords and replace them with a separate Supreme Court.
- "The Appellate Jurisdiction of the House of Lords." (2003). (http://www.parliament.uk/documents/upload/HLLAppellate.pdf)
- Blackstone, Sir William. (1765) Commentaries on the Laws of England. Oxford: Clarendon Press. (http://www.lonang.com/exlibris/blackstone/)