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British highest judicial court is still house of lords Original Source Link: (May no longer be active)
http://www.parliament.uk/documents/upload/HofLBpJudicial.pdfhttp://www.parliament.uk/documents/upload/HofLBpJudicial.pdf
HOUSE OF LORDS
BRIEFING
THE JUDICIAL WORK OF THE HOUSE OF LORDS
The House of Lords is the highest court in the land - the supreme court of appeal. It acts as the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bind all courts below.
This is an unusual role for a legislative body that is part of Parliament. In most other democracies, the judiciary is separate from the legislature - usually in the form of a supreme court of appeal. For this reason the Government is legislating to establish a United Kingdom Supreme Court that will be constitutionally and physically separate from Parliament. Until October 2008, when the new UK Supreme Court is expected to come into being, the present system will continue. The reasons for the present set up are historical - the House of Lords has done this work for more than 600 years as part of the High Court of Parliament. The House of Commons has not been involved in judicial work since 1399.Today only highly qualified judges appointed to be professional law lords take part in the judicial function of the House.
Jurisdiction
The jurisdiction of the House is ancient but the conditions under which an appeal can be made from the courts to the House have become closely defined since 1876.The Appellate Jurisdiction Act 1876 was passed to regulate the basics of how the House hears appeals. In addition to the statutory provisions the House regulates its own work through its standing orders and practice directions.
Leave to Appeal
For every civil appeal from England, Wales and Northern Ireland, leave to appeal (permission for a case to be heard by the House of Lords) must be granted by the court appealed from or, more usually, by the House itself. Most civil appeals from Scotland do not require leave. Criminal appeals from England, Wales and Northern Ireland not only require leave but also a certificate from the court appealed from setting out that a point of law of general public importance is involved and stating that point. The House does not hear criminal appeals from Scotland.
A party seeks leave to appeal by petition (all judicial business is conducted by petition to the House). Petitions are referred to an Appeal Committee of three law lords (see below). The Committee’s decision to allow or refuse a petition is made depending on whether the case involves a point of law of general public importance that ought to be considered by the House.
The Appeal Committee may ask the other party (the respondents) for their observations on the petition, but they work mainly on the basis of written submissions, without a hearing. Only if the law lords cannot agree is there an oral hearing at which submissions are heard about whether or not to grant leave to appeal. The law lords deal with about 350 applications for leave to appeal each year; and allow about 100.
The Law Lords
It used to be the case that all lords could take part in judicial work but since the 1876 Act the judicial work of the House has been done only by professional Lords of Appeal. At one time the Lord Chancellor sometimes sat, but this is no longer in practice.
There are twelve Lords of Appeal in Ordinary (or law lords). They are equivalent to supreme court judges in other countries. They are appointed by The Queen on the advice of the Prime Minister usually from the ranks of the senior appeal court judges in each part of the United Kingdom. They were, in fact, the first life peers to be created, 82 years before the Life Peerages Act 1958.
"In Ordinary" means that the lords work full time at the judicial business of the House and receive a salary. It is not paid by the House of Lords but direct from the "Consolidated Fund" (the revenues held in the Exchequer account at the Bank of England). That helps to ensure their independence.
Law lords are full members of the House and may speak and vote on all business. In practice they rarely do so. A law lord chairs the Committee on the law and institutions of the European Union. Serving law lords, however, do not engage in matters where there is a strong element of party political controversy; and they bear in mind that they may render themselves ineligible to sit judicially if they express an opinion on a matter which might later be relevant to an appeal to the House. When a law lord retires, he remains a member of the House and is then much more free to participate in debates on legislation and public policy: several do so regularly. Beyond their judicial work, law lords are often asked to chair major public inquiries. Recent topics of inquiry have included the events of "Bloody Sunday" in Northern Ireland and the death of the MOD scientist Dr David Kelly. Law lords regularly give lectures and talks; and many are involved with law faculties of universities. They have a diplomatic function in acting as ambassadors for the British legal system and common law: travelling overseas and receiving distinguished foreign and Commonwealth judges.
Other Lords may participate in judicial business if they meet the criteria set out by the Appellate Jurisdiction Act 1876.The main criterion is to have held high judicial office, subject to not being allowed to participate after reaching the age of 75. All such lords are described as Lords of Appeal. This means that the House can call on retired law lords and other senior judges who happen to be members of the House. These usually include the Lord Chief Justice, the Master of the Rolls and the President of the Court of Session in Scotland. In recent years, they have also included a New Zealand Court of Appeal judge.
Although the right of lay peers (i.e. all other members of the House, including the politicians, crossbenchers and bishops) to participate in the judicial business of the House remains in theory and has not been abolished by statute or standing order, it is the longstanding practice of the House that only Lords of Appeal participate in judicial business. The last occasion, itself an isolated one, when a lay peer voted on an appeal was in 1883.
Appeal hearings - when and where?
The law lords hear appeals from Monday to Thursday throughout the law terms, hearing about 85 appeals a year. The law lords sit on days when Parliament itself is sitting for public business and also during periods of parliamentary recess, prorogation and even (by special dispensation from The Queen) during a dissolution.
Before the Second World War the law lords used to hear appeals each day in the Chamber of the House before public business began at 4.15 p.m. When the Commons was bombed in the second World War, the Commons moved into the Lords Chamber and the Lords moved elsewhere. The law lords moved "temporarily" to a Committee room to escape the noise of the building repairs. They were constituted into an Appellate Committee for this purpose, which first met on 26 May 1948.
The experiment proved so successful that the arrangement continued after the repairs had been completed. Today, although the law lords occasionally hear appeals sitting as the House, in the Chamber, most appeals are heard by an Appellate Committee sitting in Committee Room 1.
Anyone may attend judicial business without prior arrangement. A person interested in seeing the law lords at work should tell the policeman at the public entrance to the Palace and, if the law lords are sitting, they will be directed to the right place. A notice at St Stephen's entrance shows what judicial business is going on each day; as does www.parliament.uk.
Appeal hearings - how?
An Appellate Committee usually consists of five law lords (but sometimes seven or nine). Proceedings are much less formal than in the lower courts. The five law lords sit round a horseshoe table and the senior law lord present acts as Chairman. They do not wear robes. Counsel appear in wig and gown at the Bar across the centre of the room, at which stands a lectern. Counsel for the Appellant is heard first, then counsel for the Respondent and finally counsel for the Appellant in reply. There are frequent questions from the law lords as arguments are developed and challenged. The length of hearing varies but the average is two and a half days.
Judgment
Once the hearing has finished, counsel leave the room and the law lords discuss the case, the junior giving his opinion first. Judgment is always given by putting questions to the House, in the Chamber. Sittings of the House for judgment are proper meetings of the House. Only the law lords take part in judgments, although any member of the House may attend. This serves as a reminder that it is the High Court of Parliament that determines appeals. Judgment is usually given at 9.45 on a Thursday morning a few weeks after the hearing. Each law lord who heard the appeal, starting with the senior, rises to state how he would dispose of the appeal. The law lords' speeches are called opinions and are the equivalent of a judge's reasoned judgment in the courts. The law lords stopped reading out their opinions in full in 1963 and now just indicate briefly how they would dispose of the appeal, referring to the speech which they have prepared, copies of which are available to all attending. (The full text is also posted at www.parliament.uk immediately after judgment.) Every word of an opinion is the law lord's own - no one else is involved in the drafting.
Once all five law lords have spoken, the law lord sitting on the woolsack as Speaker (i.e. the senior law lord present) puts the question to the House: "That the report from the Appellate Committee be agreed to"; and then further questions to dispose of the appeal. These orders form the judgment of the House.
Further Information
* The Judicial pages on www.parliament.uk contain:
- A list of all Lords of Appeal
- More background information on Judicial work
- The Standing Orders and practice directions for civil and criminal appeals
- All law lords' opinions at judgment on appeals since 1996
* For advice on how to conduct an appeal contact the Judicial Office
(House of Lords, London SW1A 0PW;Tel: 020 7219 3111)
NOTE
On 12 June 2003, the Government announced proposals for far-reaching constitutional changes. These included:
* The abolition of the office of Lord Chancellor (who, amongst other responsibilities, is head of the judiciary; appoints judges, and can sit as a member of the Appellate Committee).
* The establishment of a new UK Supreme Court separate from the House of Lords and the removal of the law lords from the legislature.
* A new independent Judicial Appointments Commission.
A new Department for Constitutional Affairs replaced the Lord Chancellor’s Department and has issued a number of consultation papers.
For further details on the consultation papers, go to www.dca.gov.uk The Constitutional Reform Bill is currently before Parliament.
NB This material may be reproduced for non-commercial use without permission but with acknowledgement.
Parliamentary Copyright House of Lords 2005
MARCH 2005
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