Judicial functions of the House of Lords
Encyclopedia
The House of Lords
, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment
cases, and as a court of last resort within the United Kingdom
. In the latter case the House's jurisdiction was essentially limited to the hearing of appeals from the lower courts. Appeals were technically not to the House of Lords, but rather to the Queen-in-Parliament
. By constitutional convention
, only those lords who were legally qualified (Lords of Appeal in Ordinary, or Law Lords) heard the appeals, since World War II
usually in what was known as the Appellate Committee of the House of Lords rather than in the chamber of the House.
During the 20th and early 21st centuries, the judicial functions were gradually removed. The final trial of a peer in the House of Lords was in 1935, and in 1948, the use of special courts for trials of peers was abolished. In 2009 the Supreme Court of the United Kingdom
assumed the functions as the new court of final resort in the UK.
, 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
remained 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 intervene only 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, considering them only 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 hear only 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 reversed only 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.
. Generally, only important or particularly complex appeals came before the House of Lords. The only further appeal from the House of Lords was to the European courts (the European Court of Justice
or the European Court of Human Rights
), and only then in matters concerning either European Community law or the European Convention on Human Rights
.
The Law Lords did not have the power to exercise judicial review
over Acts of Parliament. However, in 1972 the UK signed up to be a member of the European Union
, and with this accepted European law to be supreme in certain areas (see the ex parte Factortame case
). The doctrine of Parliamentary sovereignty
still applies - if the UK wants to have ultimate power over her laws as was the case previously, she would need to break from Europe. This is a legal possibility, but politically very unlikely. In common with other courts in the European Union
, however, the Law Lords referred points involving European Union law to the European Court of Justice
. The Lords could 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 was shared with the Court of Appeal, the High Court, the High Court of Justiciary
, the Court of Session
, and the Courts-Martial Appeal Court, such declarations were considered so important that the question would almost inevitably be determined in the House of Lords on appeal. However, the challenged law in question was not automatically struck down; it remained up to Parliament to amend the law.
In civil cases, the House of Lords could 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 could leapfrog from the High Court of England and Wales or High Court in Northern Ireland. In England, Wales or Northern Ireland Leave (or permission) to appeal could be granted either by the court whose decision is appealed or the House of Lords itself. Leave to appeal is not a feature of the Scottish legal system
and appeals proceeded when two Advocates certified the appeal as suitable.
In criminal cases, the House of Lords could 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 Courts-Martial Appeal Court but did not hear appeals from the High Court of Justiciary
in Scotland. In addition to obtaining leave to appeal, an appellant also had to obtain a certificate from the lower court stating that a point of general public importance was involved. The effect of this was that, in criminal matters, the House of Lords could not control its own docket
.
Permission to appeal could be granted by an Appeal Committee. The Committee consisted of three Lords of Appeal or Lords of Appeal in Ordinary. Appeal Committees could not meet while Parliament was 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 continued to come before the House of Lords in a similar manner.
An Appellate Committee, normally consisting of five Lords of Appeal in Ordinary or Lords of Appeal, heard the actual appeals. The minimum number of Law Lords that could form a Committee was four. Seven Lords could sit in particularly important cases. On October 4, 2004 a 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. Only five Appellate Committees ever comprised nine members. Three of these occurred after 2001.
The determination of each Appellate Committee was normally final, but the House of Lords (in common with the Court of Appeal and High Court of England and Wales) retained an inherent jurisdiction to reconsider any of its previous decisions, this includes the ability to "vacate" that decision and make a new one. It was 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 1999, when the judgment in the case on the extradition
of the former President of Chile Augusto Pinochet
was overturned on the grounds that one of the Lords on the committee, Lord Hoffmann
, was a Director of a charity
closely allied with Amnesty International
, which was a party to the appeal and had an interest to achieve a particular result. 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 continued to be heard in Committee rooms. No judicial robes
were worn by the judges during hearings. Appellate Committees could meet while Parliament was prorogued. Additionally, if the Sovereign authorised the same, the Committee could meet while Parliament was dissolved.
Judgment was given in the main House of Lords Chamber during a full sitting. Sittings for the purposes of giving judgment were normally held at two o'clock on Thursday afternoons; non-judicial matters were not dealt with during these sittings. Only the Law Lords who served on the Appellate Committee spoke, but other Lords were free to attend, although they rarely did so. After all five members of the Committee had spoken, the question was put to the House: "That the report from the Appellate Committee be agreed to." The House then voted on that question and on other questions related thereto; the decisions on these questions constituted the House's formal judgment.
If the House of Lords was in recess, the Lord Chancellor or Senior Lord of Appeal in Ordinary could recall the House to give judgment. Judicial sittings could occur while Parliament was prorogued, and, with the authorisation of the Sovereign, dissolved. In the latter case, the meeting was not of the full House, but was rather of the Law Lords acting in the name of the full House. Judgment could not 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 was very limited, hearing only cases on the competency of the devolved legislatures
in Scotland, Northern Ireland, and Wales. Precedents set in devolution cases, but not in other matters, are binding on all other courts, which included the House of Lords. The 'devolution issues' were transferred from the Privy Council to the Supreme Court of the United Kingdom
; however, it continues to hear Commonwealth appeals.
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 Lord High Steward selected, at his discretion, any twelve or more peers to be Lords Triers. Since the crown appointed the Lord High Steward, the peers felt that in a political prosecution this procedure put the defense at a severe disadvantage, and in the late seventeenth century made repeated efforts to ameliorate it.
The last trial of a peer 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 try peers only 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.
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 the Impeachment of Warren Hastings
from 1788 to 1795 and the Impeachment of Viscount Melville in 1806.
The 1926 novel Clouds of Witness
by Dorothy L. Sayers
depicts the (fictional) trial in the House of Lords of a duke who is accused of murder, and eventually acquitted. The writer had carefully researched all the details of procedure as they stood at the time of writing.
, 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 until October 2009 included a number of Law Lords. The Law Lords were the ones who give opinions on the case, the other Lords normally concurring therein. However the Law Lords were removed from the House when the Supreme Court came into operation.
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.
, 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 nominated a number of Lords of Appeal in Ordinary to sit in the House of Lords. In practice, they were appointed on the advice of the Prime Minister (they were not covered by the Judicial Appointments Commission
established in 2006). Only individuals who had held high judicial office for a minimum of two years or barrister
s who had been practicing for fifteen years were to be appointed Lords of Appeal in Ordinary. By convention, at least two of the Lords of Appeal in Ordinary were Scottish and at least one from Northern Ireland.
Lords of Appeal in Ordinary held the rank of Baron and seats in the House for life. Under the Judicial Pensions and Retirement Act 1993
they ceased to be Lords of Appeal in Ordinary at the age of seventy, but could 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 as of 2009 twelve could be appointed; this number could have been further raised by a Statutory Instrument approved by both Houses of Parliament. Lords of Appeal in Ordinary were, by custom, appointed to the Privy Council
if not already members. They served on the Judicial Committee of the Privy Council
, which is the highest court of appeal in certain cases. Lords of Appeal in Ordinary were often called upon to chair important public inquiries, such as the Hutton inquiry
.
Two of the Lords of Appeal in Ordinary were 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 were appointed independently.
Lords of Appeal in Ordinary were joined by a number of Lords of Appeal. The Lords of Appeal were 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 held or had held high judicial office. High judicial officers included 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 had reached the age of seventy could become a Lord of Appeal. Between 1996 and 2001, Lord Cooke of Thorndon
, a retired judge of an overseas appellate court (the Court of Appeal of New Zealand
), served as a Lord of Appeal.
Judicial appeals were heard by Lords of Appeal in Ordinary and Lords of Appeal under the age of seventy-five. Lords of Appeal in Ordinary were entitled to emoluments. Thus, Lords of Appeal in Ordinary ceased to be paid at the time they ceased to hold office and became Lords of Appeal. The Senior Lord of Appeal in Ordinary received £185,705 as of 2009 (the Lord Chief Justice of England and Wales
was the only judicial figure who received a higher salary). The other Lords of Appeal in Ordinary received £179,431.
By convention, only the Lords of Appeal in Ordinary and Lords of Appeal participated in judicial matters. When the House gave judgment, the regular quorum of three applied, but those three had to be Law Lords. Normally, only the Law Lords on the Appellate Committee who were deciding the case voted when the House gave judgment.
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 for the occasion only. 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 followed only before the final vote on guilt and not on procedural questions arising during the trial.
When the House was not officially in session, trials were heard by the Court of the Lord High Steward.
Before then, the permanent members of the Committee were 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 could sit for different cases. Normally, the Law Lords were the members who opined on the law, the other members merely concurring with their opinions. In hearing peerage claims, at least three Law Lords had to be present in order to maintain a quorum.
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 were no longer brought in the form of petitions. Rather, appeals were formally made from the lower courts.
There were concerns related to the role of the House of Lords as a judicial body. The participation of the Lord Chancellor in judicial sittings 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 next Lord Chancellor, Lord Falconer of Thoroton
, decided not to sit judicially at all. Under the Constitutional Reform Act 2005
the Lord Chancellor is no longer a judge.
Part 3 of the Constitutional Reform Act 2005
, which came into force on 1 October 2009, abolished the judicial functions of the House of Lords (except on impeachment), and transferred them to a new body, the Supreme Court of the United Kingdom
. Ten of the initial Justices of the Supreme Court were ten of the twelve then existing Lords of Appeal in Ordinary (Law Lords). One of the Law Lords (Lord Scott of Foscote) had retired on 30 September 2009 and the 12th, Lord Neuberger of Abbotsbury, became the Master of the Rolls
(the senior judge who heads civil justice in England and Wales). The 11th place on the Supreme Court was filled by Lord Clarke (previously the Master of the Rolls
), a member of the House of Lords who was the first Justice to be appointed directly to the Supreme Court. The 12th place was initially vacant. Although the Justices will still be formally addressed in the Supreme Court as "My Lord" or "My Lady", future appointees will not be elevated to the House of Lords.
, set around 1900, depicts trial of a peer by the House of Lords.
Dorothy Sayers's Lord Peter Wimsey
book, Clouds of Witness
, depicts trial of a peer (Wimsey's brother) by the House of Lords.
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment
Impeachment
Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment....
cases, and as a court of last resort within the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. In the latter case the House's jurisdiction was essentially limited to the hearing of appeals from the lower courts. Appeals were technically not to the House of Lords, but rather to the Queen-in-Parliament
Queen-in-Parliament
The Queen-in-Parliament , sometimes referred to as the Crown-in-Parliament or, more fully, as the King in Parliament under God, is a technical term of constitutional law in the Commonwealth realms that refers to the Crown in its legislative role, acting with the advice and consent of the lower...
. By constitutional convention
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
, only those lords who were legally qualified (Lords of Appeal in Ordinary, or Law Lords) heard the appeals, since World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
usually in what was known as the Appellate Committee of the House of Lords rather than in the chamber of the House.
During the 20th and early 21st centuries, the judicial functions were gradually removed. The final trial of a peer in the House of Lords was in 1935, and in 1948, the use of special courts for trials of peers was abolished. In 2009 the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
assumed the functions as the new court of final resort in the UK.
Historical development
Parliament's role in deciding litigation originated from the similar role of the Royal CourtCuria Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
, 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
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
remained 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
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
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
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
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
Clerk of the Parliaments
The Clerk of the Parliaments is the chief clerk of the House of Lords in the Parliament of the United Kingdom. The position has existed since at least 1315, and duties include preparing the minutes of Lords proceedings, advising on proper parliamentary procedure and pronouncing the Royal Assent...
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
Asia
Asia is the world's largest and most populous continent, located primarily in the eastern and northern hemispheres. It covers 8.7% of the Earth's total surface area and with approximately 3.879 billion people, it hosts 60% of the world's current human population...
while there were few restrictions on trade there; later, however, the base was seized by the British East India Company
British East India Company
The East India Company was an early English joint-stock company that was formed initially for pursuing trade with the East Indies, but that ended up trading mainly with the Indian subcontinent and China...
, which had been granted a monopoly. In 1667, the King, Charles II
Charles II of England
Charles II was monarch of the three kingdoms of England, Scotland, and Ireland.Charles II's father, King Charles I, was executed at Whitehall on 30 January 1649, at the climax of the English Civil War...
, 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 intervene only 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, considering them only after the lower courts had failed to remedy them.
Even after Skinner's Case
Skinner's Case
Skinner's Case, the name usually given to the celebrated dispute between the House of Lords and the House of Commons in the Parliament of the United Kingdom over the question of the original jurisdiction of the former house in civil suits....
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
Sir Arthur Onslow, 1st Baronet
Sir Arthur Onslow, 1st Baronet was an English politicianThe eldest son of Sir Richard Onslow, an important Parliamentarian from Surrey, Arthur also took an active role in political affairs during the English Civil War. He represented Bramber in the Long Parliament, and Surrey in the First, Second,...
(grandfather of Arthur Onslow
Arthur Onslow
Arthur Onslow was an English politician. He set a record for length of service when repeatedly elected to serve as Speaker of the House of Commons, where he was known for his integrity.-Early life and education:...
the noted Speaker
Speaker of the British House of Commons
The Speaker of the House of Commons is the presiding officer of the House of Commons, the United Kingdom's lower chamber of Parliament. The current Speaker is John Bercow, who was elected on 22 June 2009, following the resignation of Michael Martin...
(1728–1761))—came before the House of Lords. One case was from the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, and the other from the equity branch of the Court of the Exchequer. The House of Commons challenged that the Lords could hear only petitions challenging the decisions of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
Kingdom of Great Britain
The former Kingdom of Great Britain, sometimes described as the 'United Kingdom of Great Britain', That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom by the Name of GREAT BRITAIN. was a sovereign...
. 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 reversed only 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
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
. 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.
Appeals jurisdiction prior to Abolition of Jurisdiction
The judicial business of the House of Lords was regulated by the Appellate Jurisdiction Act 1876Appellate Jurisdiction Act 1876
The Appellate Jurisdiction Act 1876 is an Act of the Parliament of the United Kingdom that altered the judicial functions of the House of Lords. The act was repealed by the Constitutional Reform Act 2005, which transferred the judicial functions from the House of Lords to the Supreme Court of the...
. Generally, only important or particularly complex appeals came before the House of Lords. The only further appeal from the House of Lords was to the European courts (the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
or the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
), and only then in matters concerning either European Community law or the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
.
The Law Lords did not have the power to exercise judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
over Acts of Parliament. However, in 1972 the UK signed up to be a member of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, and with this accepted European law to be supreme in certain areas (see the ex parte Factortame case
Factortame case
The Factortame litigation led to a series of landmark decisions in United Kingdom and European Union law. The case confirmed the supremacy of European Union law over national law in the areas where the EU has competence...
). The doctrine of Parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
still applies - if the UK wants to have ultimate power over her laws as was the case previously, she would need to break from Europe. This is a legal possibility, but politically very unlikely. In common with other courts in the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, however, the Law Lords referred points involving European Union law to the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
. The Lords could also declare a law inconsistent with the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
pursuant to section 4 of the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
. Whilst this power was shared with the Court of Appeal, the High Court, the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
, the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
, and the Courts-Martial Appeal Court, such declarations were considered so important that the question would almost inevitably be determined in the House of Lords on appeal. However, the challenged law in question was not automatically struck down; it remained up to Parliament to amend the law.
In civil cases, the House of Lords could hear appeals from the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, the Court of Appeal in Northern Ireland and the Scottish Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
. Alternatively, cases raising important legal points could leapfrog from the High Court of England and Wales or High Court in Northern Ireland. In England, Wales or Northern Ireland Leave (or permission) to appeal could be granted either by the court whose decision is appealed or the House of Lords itself. Leave to appeal is not a feature of the Scottish legal system
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
and appeals proceeded when two Advocates certified the appeal as suitable.
In criminal cases, the House of Lords could 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 Courts-Martial Appeal Court but did not hear appeals from the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
in Scotland. In addition to obtaining leave to appeal, an appellant also had to obtain a certificate from the lower court stating that a point of general public importance was involved. The effect of this was that, in criminal matters, the House of Lords could not control its own docket
Docket
Docket may refer to:*Docket , the official schedule of proceedings in lawsuits pending in a court of law. Term also includes a case identification number and reference point and case history for all case work involving a particular case....
.
Permission to appeal could be granted by an Appeal Committee. The Committee consisted of three Lords of Appeal or Lords of Appeal in Ordinary. Appeal Committees could not meet while Parliament was 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 continued to come before the House of Lords in a similar manner.
An Appellate Committee, normally consisting of five Lords of Appeal in Ordinary or Lords of Appeal, heard the actual appeals. The minimum number of Law Lords that could form a Committee was four. Seven Lords could sit in particularly important cases. On October 4, 2004 a 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
Anti-terrorism, Crime and Security Act 2001
The Anti-Terrorism, Crime and Security Act 2001 was formally introduced into the Parliament of the United Kingdom on 19 November 2001, two months after the terrorist attacks on New York on 11 September. It received royal assent and came into force on 14 December 2001...
, and on December 16 it announced an 8-1 ruling against the Government. Only five Appellate Committees ever comprised nine members. Three of these occurred after 2001.
The determination of each Appellate Committee was normally final, but the House of Lords (in common with the Court of Appeal and High Court of England and Wales) retained an inherent jurisdiction to reconsider any of its previous decisions, this includes the ability to "vacate" that decision and make a new one. It was exceptional for the House of Lords to exercise this power, but a number of important cases such as Dimes v Grand Junction Canal
Dimes v Grand Junction Canal
Dimes v Grand Junction Canal was a case heard by the House of Lords.The case covers the point that "Judges must not appear to be biased or impartial". Lord Cottenham, the judge who sat over a previous case in which canal company that brought a case in equity against a landowner. Lord Cottenham was...
(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 1999, when the judgment in the case on the extradition
Augusto Pinochet's arrest and trial
General Augusto Pinochet was indicted for human rights violations committed in his native Chile by Spanish magistrate Baltasar Garzón on 10 October 1998. He was arrested in London six days later and finally released by the British government in March 2000...
of the former President of Chile Augusto Pinochet
Augusto Pinochet
Augusto José Ramón Pinochet Ugarte, more commonly known as Augusto Pinochet , was a Chilean army general and dictator who assumed power in a coup d'état on 11 September 1973...
was overturned on the grounds that one of the Lords on the committee, Lord Hoffmann
Leonard Hoffmann, Baron Hoffmann
Leonard Hubert "Lenny" Hoffmann, Baron Hoffmann, PC is a retired senior British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009...
, was a Director of a charity
Charitable organization
A charitable organization is a type of non-profit organization . It differs from other types of NPOs in that it centers on philanthropic goals A charitable organization is a type of non-profit organization (NPO). It differs from other types of NPOs in that it centers on philanthropic goals A...
closely allied with Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
, which was a party to the appeal and had an interest to achieve a particular result. 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
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, 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 continued to be heard in Committee rooms. No judicial robes
Court dress
Court dress comprises the style of clothes prescribed for courts of law, and formerly for royal courts.- Where court dress is worn :Court dress is worn at hearings in open court in all Senior Courts of England and Wales and in county courts. However, court dress may be dispensed with at the option...
were worn by the judges during hearings. Appellate Committees could meet while Parliament was prorogued. Additionally, if the Sovereign authorised the same, the Committee could meet while Parliament was dissolved.
Judgment was given in the main House of Lords Chamber during a full sitting. Sittings for the purposes of giving judgment were normally held at two o'clock on Thursday afternoons; non-judicial matters were not dealt with during these sittings. Only the Law Lords who served on the Appellate Committee spoke, but other Lords were free to attend, although they rarely did so. After all five members of the Committee had spoken, the question was put to the House: "That the report from the Appellate Committee be agreed to." The House then voted on that question and on other questions related thereto; the decisions on these questions constituted the House's formal judgment.
If the House of Lords was in recess, the Lord Chancellor or Senior Lord of Appeal in Ordinary could recall the House to give judgment. Judicial sittings could occur while Parliament was prorogued, and, with the authorisation of the Sovereign, dissolved. In the latter case, the meeting was not of the full House, but was rather of the Law Lords acting in the name of the full House. Judgment could not be given between the summoning of a Parliament and the State Opening
State Opening of Parliament
In the United Kingdom, the State Opening of Parliament is an annual event that marks the commencement of a session of the Parliament of the United Kingdom. It is held in the House of Lords Chamber, usually in November or December or, in a general election year, when the new Parliament first assembles...
. 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
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, 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
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
nations and crown dependencies. The Judicial Committee's domestic jurisdiction was very limited, hearing only cases on the competency of the devolved legislatures
Devolution
Devolution is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level. Devolution can be mainly financial, e.g. giving areas a budget which was formerly administered by central government...
in Scotland, Northern Ireland, and Wales. Precedents set in devolution cases, but not in other matters, are binding on all other courts, which included the House of Lords. The 'devolution issues' were transferred from the Privy Council to the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
; however, it continues to hear Commonwealth appeals.
Trials
Formerly, the House of Lords constituted a court in certain trials, including trials of peers of the realmPeerage
The Peerage is a legal system of largely hereditary titles in the United Kingdom, which constitute the ranks of British nobility and is part of the British honours system...
and impeachment
Impeachment
Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment....
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
Privilege of Peerage
The privilege of peerage is the body of special privileges belonging to members of the British peerage. It is distinct from Parliamentary privilege, which applies only to those peers serving in the House of Lords and the members of the House of Commons, while Parliament is in session and forty days...
, 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
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
indicted a peer, the case was brought before the Court of King's Bench
King's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
. 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
Lord High Steward
The position of Lord High Steward of England is the first of the Great Officers of State. The office has generally remained vacant since 1421, except at coronations and during the trials of peers in the House of Lords, when the Lord High Steward presides. In general, but not invariably, the Lord...
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
Precedence
Precedence may refer to:* Message precedence of military communications traffic* Order of precedence, the ceremonial hierarchy within a nation or state* Order of operations, in mathematics and computer programming...
, 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 Lord High Steward selected, at his discretion, any twelve or more peers to be Lords Triers. Since the crown appointed the Lord High Steward, the peers felt that in a political prosecution this procedure put the defense at a severe disadvantage, and in the late seventeenth century made repeated efforts to ameliorate it.
The last trial of a peer in the House of Lords was in 1935, when Lord de Clifford
Edward Southwell Russell, 26th Baron de Clifford
Lieutenant Colonel Edward Southwell Russell, 26th Baron de Clifford, OBE, TD was the only son of Jack Southwell Russell, 25th Baron de Clifford, and Eva Carrington....
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 try peers only 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.
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
Act of Settlement 1701
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...
, 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
may not issue pardons in cases of impeachment. The Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
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
House of Lancaster
The House of Lancaster was a branch of the royal House of Plantagenet. It was one of the opposing factions involved in the Wars of the Roses, an intermittent civil war which affected England and Wales during the 15th century...
, impeachments were very frequent, but they reduced under the Tudors
Tudor dynasty
The Tudor dynasty or House of Tudor was a European royal house of Welsh origin that ruled the Kingdom of England and its realms, including the Lordship of Ireland, later the Kingdom of Ireland, from 1485 until 1603. Its first monarch was Henry Tudor, a descendant through his mother of a legitimised...
, when bills of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
became the preferred method. During the reign of the Stuarts
House of Stuart
The House of Stuart is a European royal house. Founded by Robert II of Scotland, the Stewarts first became monarchs of the Kingdom of Scotland during the late 14th century, and subsequently held the position of the Kings of Great Britain and Ireland...
, 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 the Impeachment of Warren Hastings
Impeachment of Warren Hastings
The Impeachment of Warren Hastings was a failed attempt to impeach the former Governor-General of India Warren Hastings in the Parliament of Great Britain between 1788 and 1795. Hastings was accused of misconduct during his time in Calcutta particularly relating to mismanagement and personal...
from 1788 to 1795 and the Impeachment of Viscount Melville in 1806.
The 1926 novel Clouds of Witness
Clouds of Witness
Clouds of Witness is a 1926 novel by Dorothy L. Sayers, the second in her series featuring Lord Peter Wimsey.It was adapted for television in 1972, as part of a series starring Ian Carmichael as Lord Peter.-Plot introduction:...
by Dorothy L. Sayers
Dorothy L. Sayers
Dorothy Leigh Sayers was a renowned English crime writer, poet, playwright, essayist, translator and Christian humanist. She was also a student of classical and modern languages...
depicts the (fictional) trial in the House of Lords of a duke who is accused of murder, and eventually acquitted. The writer had carefully researched all the details of procedure as they stood at the time of writing.
Peerage claims
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 1999House of Lords Act 1999
The House of Lords Act 1999 was an Act of the Parliament of the United Kingdom that was given Royal Assent on 11 November 1999. The Act reformed the House of Lords, one of the chambers of Parliament. For centuries, the House of Lords had included several hundred members who inherited their seats;...
, 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 until October 2009 included a number of Law Lords. The Law Lords were the ones who give opinions on the case, the other Lords normally concurring therein. However the Law Lords were removed from the House when the Supreme Court came into operation.
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.
Appeals
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'ConnellDaniel O'Connell
Daniel O'Connell Daniel O'Connell Daniel O'Connell (6 August 1775 – 15 May 1847; often referred to as The Liberator, or The Emancipator, was an Irish political leader in the first half of the 19th century...
, an Irish politician. A panel of Law Lords—the Lord Chancellor, three former Lord Chancellors, a former Lord Chancellor of Ireland
Lord Chancellor of Ireland
The office of Lord Chancellor of Ireland was the highest judicial office in Ireland until the establishment of the Irish Free State in 1922. From 1721 to 1801 it was also the highest political office of the Irish Parliament.-13th century:...
and a former Lord Chief Justice
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
—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 nominated a number of Lords of Appeal in Ordinary to sit in the House of Lords. In practice, they were appointed on the advice of the Prime Minister (they were not covered by the Judicial Appointments Commission
Judicial Appointments Commission
The Judicial Appointments Commission is responsible for selecting judges in England and Wales. It is a non-departmental public body which was created on 3 April 2006 as part of the reforms following the Constitutional Reform Act 2005...
established in 2006). Only individuals who had held high judicial office for a minimum of two years or barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s who had been practicing for fifteen years were to be appointed Lords of Appeal in Ordinary. By convention, at least two of the Lords of Appeal in Ordinary were Scottish and at least one from Northern Ireland.
Lords of Appeal in Ordinary held the rank of Baron and seats in the House for life. Under the Judicial Pensions and Retirement Act 1993
Judicial Pensions and Retirement Act 1993
The Judicial Pensions and Retirement Act 1993 is an Act of the Parliament of the United Kingdom that strengthened the mandatory retirement provisions previously instituted by the Judicial Pensions Act 1959 for members of the British judiciary....
they ceased to be Lords of Appeal in Ordinary at the age of seventy, but could 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 as of 2009 twelve could be appointed; this number could have been further raised by a Statutory Instrument approved by both Houses of Parliament. Lords of Appeal in Ordinary were, by custom, appointed to the Privy Council
Privy Council of the United Kingdom
Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
if not already members. They served on the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, which is the highest court of appeal in certain cases. Lords of Appeal in Ordinary were often called upon to chair important public inquiries, such as the Hutton inquiry
Hutton Inquiry
The Hutton Inquiry was a 2003 judicial inquiry in the UK chaired by Lord Hutton, who was appointed by the Labour government to investigate the circumstances surrounding the death of David Kelly, a biological warfare expert and former UN weapons inspector in Iraq.On 18 July 2003, Kelly, an employee...
.
Two of the Lords of Appeal in Ordinary were 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 were appointed independently.
Lords of Appeal in Ordinary were joined by a number of Lords of Appeal. The Lords of Appeal were 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 held or had held high judicial office. High judicial officers included 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 had reached the age of seventy could become a Lord of Appeal. Between 1996 and 2001, Lord Cooke of Thorndon
Robin Cooke, Baron Cooke of Thorndon
-External links:*, The Times, 22 September 2006*, The Daily Telegraph, 26 September 2006* House of Lords minutes of proceedings, 9 October 2006*, 4 September 2006...
, a retired judge of an overseas appellate court (the Court of Appeal of New Zealand
Court of Appeal of New Zealand
The Court of Appeal of New Zealand, located in Wellington, is New Zealand’s principal intermediate appellate court. In practice, most appeals are resolved at this intermediate appellate level, rather than in the Supreme Court...
), served as a Lord of Appeal.
Judicial appeals were heard by Lords of Appeal in Ordinary and Lords of Appeal under the age of seventy-five. Lords of Appeal in Ordinary were entitled to emoluments. Thus, Lords of Appeal in Ordinary ceased to be paid at the time they ceased to hold office and became Lords of Appeal. The Senior Lord of Appeal in Ordinary received £185,705 as of 2009 (the Lord Chief Justice of England and Wales
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
was the only judicial figure who received a higher salary). The other Lords of Appeal in Ordinary received £179,431.
By convention, only the Lords of Appeal in Ordinary and Lords of Appeal participated in judicial matters. When the House gave judgment, the regular quorum of three applied, but those three had to be Law Lords. Normally, only the Law Lords on the Appellate Committee who were deciding the case voted when the House gave judgment.
Trials
The Lord High StewardLord High Steward
The position of Lord High Steward of England is the first of the Great Officers of State. The office has generally remained vacant since 1421, except at coronations and during the trials of peers in the House of Lords, when the Lord High Steward presides. In general, but not invariably, the Lord...
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
Earl of Leicester
The title Earl of Leicester was created in the 12th century in the Peerage of England , and is currently a title in the Peerage of the United Kingdom, created in 1837.-Early creations:...
. 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
Coronation of the British monarch
The coronation of the British monarch is a ceremony in which the monarch of the United Kingdom is formally crowned and invested with regalia...
—one was appointed for the occasion only. 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
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
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 followed only before the final vote on guilt and not on procedural questions arising during the trial.
When the House was not officially in session, trials were heard by the Court of the Lord High Steward.
Peerage claims
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. It remains to be seen what practice the House and the Committee will adopt since the abolition of Law Lords in October 2009.Before then, the permanent members of the Committee were 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 could sit for different cases. Normally, the Law Lords were the members who opined on the law, the other members merely concurring with their opinions. In hearing peerage claims, at least three Law Lords had to be present in order to maintain a quorum.
Reform
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 1874. Before that date, however, the Liberal Government of William Ewart GladstoneWilliam Ewart Gladstone
William Ewart Gladstone FRS FSS was a British Liberal statesman. In a career lasting over sixty years, he served as Prime Minister four separate times , more than any other person. Gladstone was also Britain's oldest Prime Minister, 84 years old when he resigned for the last time...
fell. The new Conservative Government, led by Benjamin Disraeli
Benjamin Disraeli, 1st Earl of Beaconsfield
Benjamin Disraeli, 1st Earl of Beaconsfield, KG, PC, FRS, was a British Prime Minister, parliamentarian, Conservative statesman and literary figure. Starting from comparatively humble origins, he served in government for three decades, twice as Prime Minister of the United Kingdom...
, 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 were no longer brought in the form of petitions. Rather, appeals were formally made from the lower courts.
There were concerns related to the role of the House of Lords as a judicial body. The participation of the Lord Chancellor in judicial sittings varied over the years. Lord Gardiner (Lord Chancellor from 1965 to 1970) sat on four days, Lord Hailsham of St Marylebone
Quintin Hogg, Baron Hailsham of St Marylebone
For the businessman and philanthropist, see Quintin Hogg Quintin McGarel Hogg, Baron Hailsham of St Marylebone, KG, CH, PC, QC, FRS , formerly 2nd Viscount Hailsham , was a British politician who was known for the longevity of his career, the vigour with which he campaigned for the Conservative...
(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 next Lord Chancellor, Lord Falconer of Thoroton
Charles Falconer, Baron Falconer of Thoroton
Charles Leslie Falconer, Baron Falconer of Thoroton, PC is a British Labour politician, who became the Lord Chancellor and the first Secretary of State for Constitutional Affairs in 2003...
, decided not to sit judicially at all. Under the Constitutional Reform Act 2005
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 is an Act of the Parliament of the United Kingdom. It provided for a Supreme Court of the United Kingdom to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council, and removed the functions of Speaker of...
the Lord Chancellor is no longer a judge.
Part 3 of the Constitutional Reform Act 2005
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 is an Act of the Parliament of the United Kingdom. It provided for a Supreme Court of the United Kingdom to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council, and removed the functions of Speaker of...
, which came into force on 1 October 2009, abolished the judicial functions of the House of Lords (except on impeachment), and transferred them to a new body, the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
. Ten of the initial Justices of the Supreme Court were ten of the twelve then existing Lords of Appeal in Ordinary (Law Lords). One of the Law Lords (Lord Scott of Foscote) had retired on 30 September 2009 and the 12th, Lord Neuberger of Abbotsbury, became the Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
(the senior judge who heads civil justice in England and Wales). The 11th place on the Supreme Court was filled by Lord Clarke (previously the Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
), a member of the House of Lords who was the first Justice to be appointed directly to the Supreme Court. The 12th place was initially vacant. Although the Justices will still be formally addressed in the Supreme Court as "My Lord" or "My Lady", future appointees will not be elevated to the House of Lords.
In fiction
The 1949 movie Kind Hearts and CoronetsKind Hearts and Coronets
Kind Hearts and Coronets is a 1949 British black comedy feature film. The plot is loosely based on the 1907 novel Israel Rank: The Autobiography of a Criminal by Roy Horniman, with the screenplay written by Robert Hamer and John Dighton and the film directed by Hamer...
, set around 1900, depicts trial of a peer by the House of Lords.
Dorothy Sayers's Lord Peter Wimsey
Lord Peter Wimsey
Lord Peter Death Bredon Wimsey is a bon vivant amateur sleuth in a series of detective novels and short stories by Dorothy L. Sayers, in which he solves mysteries; usually, but not always, murders...
book, Clouds of Witness
Clouds of Witness
Clouds of Witness is a 1926 novel by Dorothy L. Sayers, the second in her series featuring Lord Peter Wimsey.It was adapted for television in 1972, as part of a series starring Ian Carmichael as Lord Peter.-Plot introduction:...
, depicts trial of a peer (Wimsey's brother) by the House of Lords.
See also
- List of Law Life Peerages
- List of Lords of Appeal
- List of House of Lords cases