House of Lords		Session 1999-2000

The Judicial Work of the House of Lords

Here you can browse information sheet number 8

 

Contents

This document is for general information only.
It should not be relied upon as a source of legal advice

Introduction

The House of Lords hears appeals from the Court of Appeal in England andWales and Northern Ireland in both civil and criminal matters and from the Courtof Session in Scotland in civil matters. In addition, the House hears criminalappeals from a Divisional Court of the Queens's Bench Division of the High Courtin England and Wales and from the High Court in Northern Ireland. Certain kindsof civil cases may also be brought direct from the High Court in England andWales and Northern Ireland under what is colloquially known as the 'leapfrog'procedure. The House may also hear appeals from the Courts-Martial AppealCourt.

Although the right to appeal to the House of Lords is ancient, theconditions under which appeal can be made have been closely defined over thelast hundred years. Each category of appeal is now subject to statutoryprovisions either confirming or creating rights of appeal, providing for thegranting of leave to appeal, defining time limits within which leave may besought from the House itself and in some kinds of appeal providing forcertification of suitability of the appeal by the courts from which the appealis to be brought. For example, civil appeals are governed by the AppellateJurisdiction Act 1876 with additional provision for England and Wales in theAdministration of Justice (Appeals) Act 1934 and for Northern Ireland in theJudicature (Northern Ireland) Act 1978. Criminal appeals from the Court ofAppeal are governed by the Criminal Appeal Act 1968 and appeals from theDivisional Court by the Administration of Justice Act 1960. Similar butseparate provisions govern the comparable appeals from Northern Ireland. 'Leapfrog' appeals from the High Court are regulated by the Administration ofJustice Act 1969. Broadly speaking these acts provide that an appeal ispermissible only with the leave of the court below whose order is being appealedagainst or of the House of Lords itself.

Broadly speaking, if a case is suitable to be argued before the House ofLords, the issues involved must be of general and public rather than ofindividual importance and questions of law rather than questions of fact must beat issue. In criminal and courts-martial cases there is an additional,statutory requirement that leave cannot be granted either by the court below orby the House itself unless the court below has certified that a point of law ofgeneral public importance is involved in its decision. So when the appealarrives, the point of law at issue is formulated precisely in the form of aquestion. Similarly in 'leapfrog' appeals the High Court must certify that thecase relates to the construction of a statute or statutory instrument or be acase in which the trial court and Court of Appeal are already bound by aprevious decision of the House of Lords or Court of Appeal.

The Law Lords

The composition of the House for the purpose of exercising its judicialfunction is now restricted to those qualified to take part. This was not alwaysso but by the early nineteenth century participation by 'lay' Members was rare. Indeed, the instances of 'lay' participation in judicial decisions were thoughtto have been few when an attempt was made by some lay Peers to vote against thequashing of Daniel O'Connell's conviction in 1844. The then Lord President ofthe Council, Lord Wharncliffe, said on that occasion:

"I cannot help suggesting that your lordships should notdivide the House upon a question of this kind, when the opinions of the lawlords have been already given upon it, and the majority is in favour ofreversing the judgment. In point of fact, my lords, they constitute the Courtof Appeal, and if noble lords unlearned in the law should interfere to decidesuch questions by their votes instead of leaving them to the decision of the lawlords, I very much fear that the authority of this House as a court of justicewould be greatly impaired."

Lord Denman intervened at judgment in the case of Bradlaugh v Clarke in1883, but it is not clear whether his vote was counted and it did not affect thedecision. No lay Lord has sought to intervene in the consideration of an appealsince.

By the nineteenth century the burden of hearing appeals fell almost entirelyon the Lord Chancellor and sufficient lay Peers as were necessary to form thequorum of three; very occasional assistance was rendered by Lords who wereex-Lord Chancellors or judges and who came to be called Law Lords. It was alsopossible in difficult cases to call upon the judges to assist the House: thiswas last done in 1898. Understandably, the delay in hearing appeals wasconsiderable and it was perhaps inevitable that this state of affairs would notlong escape the Victorian zeal for reform of the machinery of justice.

One attempt was made in 1856 when Sir James Parke, a Baron of the Exchequer,was raised to the peerage as Lord Wensleydale with the purpose of enabling himto assist in the hearing of appeals. His original letters patent purported tocreate him a Baron 'for and during the term of his natural life' - the firstlife peer - but as a result of objections from the Committee for Privileges,agreed to by the House on 25th February, he was eventually to take his seat as ahereditary Peer. Nevertheless, the idea of a Law Lord with a peerage only forhis lifetime survived and was finally given expression in the AppellateJurisdiction Act 1876. This act established the modern form of appeal to theHouse of Lords.

Its most significant provisions were undoubtedly those which provided forthe appointment by the Queen of up to four qualified persons to be called 'Lordsof Appeal in Ordinary' to sit in the House and assist the Lord Chancellor inhearing appeals. These Lords of Appeal were required to have held high judicialoffice for at least two years or to have been practising barristers for at leastfifteen years. During his life a Lord of Appeal in Ordinary was entitled to therank of Baron but this would not descend to his heirs. The other Members of theHouse of Lords qualified to sit were defined as 'Lords who hold or have heldhigh judicial office', that is to say as Lord Chancellor, or judge of the Courtof Appeal, High Court or Court of Session.

Today there may be, and currently are, twelve Lords of Appeal in Ordinary. They are usually appointed from amongst the ranks of the Lords Justices ofAppeal or, less frequently, judges of the High Court and they normally includetwo from the Scottish bench. In addition, former Lords of Appeal in Ordinary,former Lord Chancellors and holders of other high judicial office are entitledto sit as Law Lords under the Act. In practice few of them sit and then onlyoccasionally. Thus, since 1876, the House of Lords has been, for the purposesof discharging its judicial function, composed entirely of professional people.

The Judicial Pensions and Retirements Act 1993, which came into force in1995, lowered the age of retirement of new Lords of Appeal in Ordinary from 75to 70. It also provided that no-one except the Lord Chancellor may sitjudicially in the House of Lords beyond the age of 75.

The Court

Just as the appointment of Lords of Appeal after 1876 put the House as acourt at a slight remove from the House as a chamber of Parliament, otherpractices relating to the times and character of sittings have tended to carrythis process still further. Before 1876 Parliamentary terms were notco-extensive with the law terms but were considerably shorter (the margin is notso great today), so the highest court in the land was able to sit on far fewerdays than inferior courts. Delays in hearing appeals were inevitable.

In order to improve efficiency the Appellate Jurisdiction Act authorised theHouse to sit for judicial business not only on days when Parliament was notitself sitting but also during periods of prorogation and dissolution. A morerecent amendment to Standing Orders enables the House to be recalledspecifically for judicial business. Today, Law Lords sit from Monday toThursday throughout the law terms, regardless of sittings of the House forpublic business.

However the Law Lords now seldom meet in the Chamber of the House itself tohear appeals. Until 1948 it was customary to sit in the Chamber each day,starting at half past ten in the morning and concluding at a quarter to fouro'clock in the afternoon whereupon public business - that is to say non-judicialparliamentary business - would begin. During the war the Chamber of the Houseof Commons was bombed and the Lords moved their sittings to the King's RobingRoom to enable the Commons to sit in the Lords Chamber. The noise of thesubsequent re-building interrupted proceedings and it was decided to move theLaw Lords from the temporary Chamber of the House to a quieter Committee Roomupstairs.

For this purpose the Law Lords were constituted into an Appellate Committeewhich first sat on 26th May 1948. This expedient proved so successful that in1951, when rebuilding has been completed, it was nevertheless decided tocontinue the existence of the Appellate Committee. In 1960, authority was givenfor a second Appellate Committee to be appointed although it was not untilOctober 1962 that two Appellate Committees sat for the first time concurrently. For the purpose of hearing appeals an Appellate Committee usually consists offive Law Lords, though in cases of exceptional difficulty or importance theCommittee may comprise seven members. Sittings take place in Committee Room 1and, when necessary, Committee Room 2. The practice of sitting as a Committeehas enabled the Lords to sit earlier for the transaction of public business asthe Chamber is no longer in daily use by the Law Lords. The Lord Chancellor,who sits as Speaker in the Lords, is now only rarely able to sit judicially notonly in consequence of this change but also because of the increased work of hisdepartment.

This is not to say that appeals are now never heard in the Chamber of theHouse itself. At the end of the summer recess, before the parliamentary sessionhas resumed, the Law Lords regularly hear appeals in the Chamber, although thisperiod is now limited by agreement to one week. The final judgment of an appealis always given in the Chamber itself, usually on Thursday afternoons, by way ofa vote upon the report of the Appellate Committee which heard the appeal inquestion. These sittings serve as continual reminders that, despite modernpractice, the theory remains that it is the Court of Parliament that hears anddetermines the appeals. Furthermore a meeting of the House (though, naturally,not of the Appellate Committee) for judicial business is equal in status to ameeting for public business and, even if neither Lords nor Commons are sittingfor public business, it constitutes a parliamentary sitting day.

Leave to Appeal

If the court below grants leave to appeal to the House of Lords, the appealproceeds direct to be considered by an Appellate Committee of the House. If thecourt below refuses leave to appeal, a party may seek leave to appeal from theHouse itself by presenting a petition for leave to appeal within one month(fourteen days in criminal matters) from the making of the court's order. Everyadmissible petition is referred to an Appeal Committee (Standing Order 83provides for two such Committees) consisting of three Lords of Appeal.

The Appeal Committee was first set up in January 1812 and its originalpurpose was to consider preliminary objections to an appeal, to enforce StandingOrders and consider incidental petitions. Today, as a result of theAdministration of Justice (Appeals) Act 1934 and other legislation governing thebringing of appeals, its chief function is to determine whether or not leave toappeal should be granted, though it occasionally still considers petitions onopposed incidental issues arising out of appeals and it is responsible forperiodic amendment of the "Practice Directions", which set out thepractice of the House with regard to appeals.

The Appeal Committee considers the petition, which sets out the reasons forgranting leave, together with relevant documentation. The Committee will decidewhether leave should be refused or whether it should be provisionally allowed. If the Committee are unanimously of the view that a petition should beprovisionally allowed the respondents to the petition (that is to say the otherparty or parties involved in the case) are invited to submit objections withinfourteen days as to why leave should not be granted. Depending on theobjections received, if any, the Committee will decide whether leave should begranted or refused, or, in cases in which the members of the Committee are notunanimous, the petition will be referred for a hearing. If no objections arereceived within the fourteen days, leave is granted. In all cases in which theCommittee are not unanimous the petition will be referred for a hearing. Apublic meeting of the Committee is held, attended by the parties, at whichargument is heard. After the hearing the Committee decide whether leave shouldbe granted or refused.

If leave to appeal is granted then the appeal may be presented and heard bythe House of Lords in the same way as if the court below had itself grantedleave. The number of petitions considered annually has increased markedly inrecent years from an annual average of 26 in 1952-60, to 59 in 1961-70, 83 in1971-80 and 150 in 1981-90. These latter increases have, moreover, occurred ata time when the jurisdiction of the House has remain unchanged.

Leave to appeal is not normally required in civil appeals from the Court ofSession. Such appeals may proceed directly to an Appellate Committee providedthat two Counsel have certified the reasonableness of the appeal. This was alsothe practice for English and Irish appeals before legislation in 1934 and 1962.

Judicial Procedure

While the terms on which an appeal may be brought to the Lords are mostlylaid down by statute, in its subsequent course through the House an appeal isgoverned entirely by Lords procedure. This is laid down in Judicial StandingOrders and the Practice Directions in Civil and Criminal Appeals.

(I) The Preparatory Stages

The first stages of an appeal are preparatory. When leave has been given apetition of appeal must be presented to the House within three months of themaking of the order by the Court below. This petition is a formal documentpraying that the matter of the order appealed against may be reviewed before HerMajesty the Queen in Her Court of Parliament and that the order may be'reversed, varied or altered' or that some other specific remedy may be granted. Upon receipt of the petition, it is presented to the House which refers it toan Appellate Committee. This is recorded in the Minutes of Proceedings. Awritten statement setting out the facts and issues of the appeal must also beprovided by the appellant in consultation with the respondent. The appellanthas the additional responsibility for furnishing an appendix containingancillary documents relevant to the Appeal. The appellant, within one week ofpresentation of the Appeal, is obliged to deposit a substantial sum of money assecurity for any costs that may be awarded against him at judgment. When thestatement and appendix are lodged with the Judicial Office of the House of Lordsthe appeal is set down for hearing. This is usually six to eighteen weeks afterpresentation of the petition, depending on the speed with which the parties areable to prepare their documents. (Standing Orders require statements to belodged within six weeks of the petition, but extensions of time may be asked forand, if consented to by the respondent, are usually granted.) The length oftime that will elapse before the hearing depends on how many appeals are in thelist already. Sometimes priority is sought for or accorded to a particularlyurgent appeal but generally speaking after presentation a period of up to twelvemonths may elapse before the appeal can be considered by the AppellateCommittee.

(II) The Hearing

The hearing itself does not much resemble proceedings in the court below. If anything, proceedings are less formal though no less intense. The five LawLords sit in a semi-circle round a horse-shoe table, like a Select Committee andthe senior Law Lord present presides as Chairman. They do not wear robes. Before them they each have a copy of the documents produced by the parties andall supporting documents pertaining to the appeal. Beside each Law Lord standsa large book case filled with legal texts and authorities which Counsel haveindicated in advance that they will be citing in support of their submissions. Facing the horse-shoe table is the Bar in the centre of which stands a lecternfrom which Counsel address the Committee. On either side of the lectern sit theCounsel who have been 'briefed' to represent the various parties, though a partymay appear in person if he so wishes. Counsel appear in wig and gown. Behindthem sit the instructing solicitors. Proceedings of the Appellate Committee areopen to the public, who are able to sit at the back of the room.

Counsel for the appellant opens and is followed by the Counsel for therespondent. Counsel for the appellant is then heard in reply. There arefrequent questions from the Law Lords to Counsel as they develop theirarguments. The length of hearings varies from appeal to appeal. Some arequickly disposed of in a day or two: others last two or three weeks. Theaverage duration is just over two and a half days. It is sometimes possibleto hear appeals together and there are, therefore, fewer separate hearings thanstatistics would at first sight suggest.

The Appellate Committee do not announce their opinions immediately except inthe most unusual and urgent circumstances. There are two reasons for this. First, since the House of Lords is the highest court in the land and itsdecisions bind all the courts below, the Law Lords need time to formulate fullytheir opinions and their reasons for reaching them. Secondly, the opinions ofthe Committee are of no binding force until they are agreed to by the House.

(III) Judgment

When the Law Lords' opinions are ready and have been printed, a sitting ofthe House is arranged, usually on a Thursday at 2.00 p.m., so that judgment maybe given. Sittings for judgments, although only the Law Lords take part, arefull meetings of the House. The presiding Law Lord sits as Speaker, the Macelies on the Woolsack and a Bishop reads prayers. The Principal Clerk of theJudicial Office, who is the Fourth Clerk at the Table, summons Counsel andothers to the Bar of the House and announces the consideration by the House ofthe report of the Appellate Committee in that appeal.

It was once the practice for each Law Lord to read out the whole of hisspeech giving his opinion but this took such a long time that the practice wasabandoned in 1962. Today the printed speeches are distributed just before theHouse meets and each Law Lord merely states that, for the reasons he has givenin a speech which he has prepared and which is available in print, he wouldallow or dismiss the appeal. The House then delivers judgment by agreeing tothe report from the Appellate Committee. A number of questions are put from theWoolsack by the presiding Law Lord and they are agreed to or disagreed to on avote. For example he may say: "The Questions is:

    That the Order appealed from be Reversed and the Order of Mr Justice ......be Restored. As many as are of that opinion will say 'Content'. The Contrary'Not-content'."

Having thus collected the voices he then announces that the Contents (or theNot-contents as the case may be) have it. After any further questions that maybe necessary, for example on costs, have been put and voted upon, the Clerkcalls, "Clear the Bar".

Since November 1996, House of Lords Judgments have been available on the Interent within 2 hours of delivery. They can be found at www.parliament.uk.

After the House has given its judgment a written order is drawn up by theJudicial Office, signed by the Clerk of the Parliaments as Registrar of thecourt and taken up by the successful party. A preamble rehearses the details ofthe petition of appeal and then the decision of the House is unambiguouslydeclared. Indeed, in the wording of the declaration - "it is Ordered andAdjudged by the Lords Spiritual and Temporal in the Court of Parliament of HerMajesty the Queen assembled ...' - we are reminded of the historic origins ofthe House's judicial role.

History of the Jurisdiction

The origin of the appellate jurisdiction of the House of Lords is to befound in the royal jurisdiction of the mediaeval monarchy. In the early MiddleAges the King, sometimes with his Council, or curia regis, was the supreme lawgiver and judge. Petitions of many kinds including those asking for the Kings'justice (some of which we can still recognise as public petitions or PrivateBills) were addressed to the King, or to the King in Council. This highjudicial function over the years evolved into the appellate jurisdiction incivil and criminal matters exercised, with the assent of the King, by themedieval concilium regis ordinarium. This body included the great officers ofstate and the judges and from the later thirteenth century it invariably satwith the Lords temporal and spiritual to form the magnum concilium inparliamento or the curia parliamenti. In the course of the fourteenth centurythe Lords took the jurisdiction into their own hands, using members of theconcilium ordinarium only as assistants. Early appeals were brought from theCourt of King's Bench by way of a petition to the King or, more commonly inlater years, by a writ issued by the Crown where error had occurred in the Courtof King's Bench.

The jurisdiction was exercised by the House of Lords alone. An exchangebetween the Commons and the Crown in the first Parliament of Henry IV in 1399epitomizes the differing roles of the two Houses of Parliament. The Commons,wishing to absolve themselves from responsibility for the deposition of RichardII, declared 'That the judgments of Parliament appertain exclusively to the kingand the Lords, and not to the Commons.' And the reply by the Archbishop ofCanterbury on behalf of the Crown was, 'That the king and Lords have ever had,and of right shall enjoy, the privilege of judgment in Parliament as the Commonshave confessed; save that in the making of statutes, in grants of subsidies, andin matters concerning the common profit of the realm, the king desiresespecially their advice and consent; and that such order and proceeding bemaintained and adhered to in all time to come.' (Rot. Parl. I Hen. IV, no. 79 -printed vol. iii, p. 427)

During the sixteenth century the judicial function fell into abeyance, butwhen the House sought to revive its jurisdiction in the seventeenth century itwas able to resort successfully to earlier precedent to justify the resumptionof an active judicial role not only upon reference from the Crown but also, fromthe reign of Charles I, over causes in equity on petition direct to themselves. But, of course, this jurisdiction then extended only to England and Wales andIreland. Appeals from Scotland were not entertained until after the Act ofUnion of 1707. In 1783 an appellate jurisdiction was conceded to the IrishHouse of Lords over the Irish Courts but this was withdrawn following the Treatyof Union in 1801.

In 1873 the House's jurisdiction in respect of English appeals (though notIrish or Scottish appeals) was to be abolished by the Supreme Court ofJudicature Act. But Mr Gladstone's Liberal government fell in February 1874, before the Act cameinto effect. Lord Cairns, Disraeli's Lord Chancellor, introduced a bill totransfer Irish and Scottish appeals as well, but he lost the support of theCabinet and the bill was dropped after Committee Stage in the Commons. TheSupreme Court of Judicature Act (1873) Suspension Act 1874 postponed the cominginto effect of the 1873 Act. Lord Cairns reintroduced his bill in the followingSession, but was forced to drop it again, this time during Committee Stage inthe Lords. The Supreme Court of Judicature Act (1873) Amendment Act 1875 againpostponed the coming into effect of the 1873 Act, and public, professional andparliamentary opinion swung back in favour of the Lords' ancient jurisdiction. Finally, the Appellate Jurisdiction Act of 1876 repealed the provisions of theJudicature Act which affected the House of Lords before they had come intooperation and the ancient jurisdiction of the House was confirmed and defined.

Select Bibliography

House of Lords Form of Appeal, Practice Directions and Standing Ordersapplicable to Civil Appeals.

House of Lords Form of Appeal and Practice Directions applicable toCriminal Appeals.

(These documents are available from the Judicial Office, House of Lords -0171-219 3111.)

C. M. Denison and C. H. Scott, Practice and Procedure of the House ofLords (London, 1879).

Erskine May, The Law, Privileges, Proceedings and Usage of Parliament,ed. C J Boulton, 21st edn. (London, 1989), pp. 64, 176, 417.

Halsbury's Laws of England, ed. Q. Hogg, 4th ed., x, pp. 338 ff.

Robert Stevens, The Final Appeal: Reform of the House of Lords and PrivyCouncil, 1867-1876, Law Quarterly Review, lxxx (1964), p. 343.

L. Blom-Cooper and G. Drewry, Final Appeal: A Study of the Houseof Lords in its Judicial Capacity (Oxford, 1972).

Robert Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976(Weidenfeld and Nicolson, 1979).

Alan Paterson, The Law Lords (1982).

July 1997

 
© Parliamentary copyright 1997
Revised 1July 1997