Judicial functions of the House of Lords

The House of Lords, in addition to having a legislative function, has a judicial function as a court of last resort within the United Kingdom. The jurisdiction is ancient, but is regulated by the Appellate Jurisdiction Act 1874 and other acts. Appeals are made to the House of Lords, or more properly to Her Majesty the Queen in Her Court of Parliament. However, by constitutional convention judges known as the Law Lords, rather than all of the Lords, hear the appeals.

Table of contents

1 Lords of Appeal
2 Jurisdiction of the House of Lords
3 Appeal and Appellate Committees
4 Present concerns
5 The Law Lords in 2003
6 External link:

Lords of Appeal

These judges are generally known as the Law Lords and consist of Lords of Appeal in Ordinary, senior judges who have been created life peers for the sole purpose of being a judge in the House of Lords, and other Lords of Appeal. The twelve Lords of Appeal in Ordinary are paid a salary to work full time on judicial business. The other Lords of Appeal include all members of the House of Lords who have served as senior judges, such as the Lord Chief Justice, Master of the Rolls, former Lords of Appeal in Ordinary and former Lord Chancellors, as well as peers who hold or who have held positions in superior courts within the Commonwealth, and can be called upon to help with judicial business until they reach the age of 75.

The same judges in their role as Privy Counsellors (all judges of the Courts of Appeal of England and Wales, New Zealand, etc. and above are appointed to the Council) form the Judicial Committee of the Privy Council which is the court of last resort for smaller Commonwealth countries such as Trinidad and was formerly the court of last resort in larger British Commonwealth countries as Canada and Australia where some of the Privy Council judgments are still binding legal precedent.

Jurisdiction of the House of Lords

The House of Lords has no jurisdiction to hear cases at first instance, except on peerage claims, and mainly hears cases which are appealed from lower courts. Generally a case must be of great importance, due to its severity, complexity, level of money involved, public interest or other factors, before the Lords will hear it. For example, the Lords were asked to decide whether General Pinochet who was the former head of state of Chile had state immunity from prosecution on torture charges when he was detained in the United Kingdom.

The House of Lords is the highest court in England, but has no power to declare laws invalid or unconstitutional, as do supreme courts elsewhere, due to the doctrine of the Supremacy of Parliament.

In common with every other court in the European Union they have the power to refer points of law to the European Court of Justice and as a result of such a case the Lords declared the Maritime Shipping Act 1990 unenforceable in part. In addition they can declare a law to be inconsistent with the European Convention on Human Rights, although it is then up to Parliament to decide whether to amend it.

The jurisdiction of the Lords is as follows:

From the Court of Appeal of England and Wales and the Court of Appeal of Northern Ireland
From the Court of Session of Scotland (which hears only civil cases)
From the High Court of England and Wales and the High Court of Northern Ireland ("leapfrogging" the Court of Appeal)
From the Court-Martial Appeal Court

An appeal from a lower court will be heard only by leave (permission) of that lower court or of the Lords, except for appeals from the Court of Session, which only require that two counsel certify that they are reasonable.

Appeal and Appellate Committees

A petition for leave for appeal will be heard by an Appeal Committee, which consists of three lords.

Generally five lords will hear a case, but in more serious matters even more may be present — the Pinochet case had seven judges participating in the judgment. Before 1948 cases were heard in the chamber of the House of Lords, in theory before the whole House. During the Second World War the House of Commons was destroyed by bombing. Noise from reconstruction work after the war caused the Law Lords to move elsewhere, and constituted themselves into an Appellate Committee. The experiment proved so successful that most cases are now heard by one of two appellate committees. Although since 1948 cases have normally been heard by the appellate committees, judgments continue to be given in the chamber of the House of Lords.

Present concerns

The senior judge and president of the appellate committees is the Lord Chancellor who is also speaker of the House of Lords and a minister in the cabinet. Because of concerns relating to the modern doctrine of separation of the powers, the Lord Chancellor does not sit in cases where the government is a party to the action. The current Lord Chancellor, Lord Falconer of Thoroton, has said he does not intend to sit as a judge at all.

The government has announced its intention to abolish the judicial functions of the House of Lords and replace them with a separate Supreme Court.

The Law Lords in 2003

In order of seniority:

Lord Bingham of Cornhill (Senior Lord of Appeal in Ordinary)

Lord Nicholls of Birkenhead (Second senior Lord of Appeal in Ordinary)

Lord Steyn

Lord Hoffmann

Lord Hope of Craighead

Lord Hutton of Bresagh

Lord Saville of Newdigate

Lord Hobhouse of Woodborough

Lord Millett

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe