Judicial sittings

Lord Norton

440871In response to my previous post, a number of readers asked about the role of the law lords.  Croft raised the question as to whether other peers could participate in judicial business.

The judicial work of the House is conducted by an Appellate Committee, comprising Lords of Appeal: these comprise the Lords of Appeal in Ordinary (the law lords) and other peers who hold or have held high judicial office (such as judges of the Court of session in Edinburgh).  An Appellate Committee normally comprises five Lords of Appeal, though in exceptional cases (as in the Pinochet case) it may be more.  Hearings are held in one of the committee rooms in the Lords (usually Committee Room 1 or 2), but judgements continue to be delivered in the chamber.   When they are delivered, the senior law lord, now Lord Phillips of Worth Matravers, occupies the Woolsack and puts the motions; the other law lords participating sit on the two front benches. 

Other members of the House may attend the sitting, though they may not participate, nor are they entitled to claim expenses for attending.   Erskine May, the bible of parliamentary procedure, states the position succinctly:

“While the right of lay peers to participate in the judicial business of the House has not been abolished by statute or standing order, it is the longstanding practice of the House that only those Lords designated 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.”

The case in 1883 was Bradlaugh v Clarke, when Lord Denman gave his judgement in agreement with the dissenting judgement of Lord Blackburn. 

In other words, the judicial work of the House is carried out exclusively by the Lords of Appeal.  Lay peers do not participate in judicial business and the law lords refrain from participating in proceedings in the chamber that could create a conflict of interest.  There has thus tended to be a reasonably clear, if not precise, separation of the House operating in its legislative and its judicial capacities.

This will change in October when the law lords leave the Palace of Westminster and move across Parliament Square to the new Supreme Court.    The House of Lords will thus cease to exercise its judicial capacity.  For some of us, it is not a move that has much to commend it.

5 comments for “Judicial sittings

  1. 19/02/2009 at 9:48 pm

    It would be interesting to have your view on the Supreme Court. Do you believe that this is to “conform” to European rules and create a separation of powers or that it is more political than constitutional in motivation?

    Also do you think that a quasi US approach will work in the UK which doesn’t have a written constitution?

    It may only my view but we only seem to hear what are the advantages but not really the disadvantages of moving to a Supreme Court. Often we forget what a strong brand the Law Lords is across the rest of the world – I wonder whether in the UK we don’t understand the strengths that we have until we have removed it. (Speaks the royalist!)

    Looking forward to hearing your thoughts

  2. Bedd Gelert
    20/02/2009 at 9:58 am

    Interesting to hear Baroness Warsi sticking up for community cohesion this morning.


    Her piece was interesting, as it does pose the question as to how much of a ‘derogation’ there can ever be to the law of the land for people of faith or over issues of conscience.

    We are all supposed to be ‘equal before the law’ and she is blindfolded to prevent prejudice. One is reminded of the people who vandalised the Hawk Trainer jets because they disagreed with the purpose to which it was going to be put.

    But this is a much wider question – do we need more flexibility or more rigidity ? More legislation against ‘hate speech’ or more freedom of speech ? Can, for example, Catholics opt out of legislation on ‘women’s right to choose’ or equal treatment for homosexuals ?

  3. Adrian Kidney
    20/02/2009 at 9:58 am

    What do you think motivated the government to make this change, Lord Norton?

    What impact do you think it’ll have, for good and ill?

    I smell a dissertation subject being formed…

    On a side note: Lord Norton, I enjoy these posts of yours explicating the work of the House. Could you make a post regarding devolution? What function does the House have in working with the devolved Assemblies/House of Commons in devolved affairs? What mechanisms does the government/parliament have to resolve conflicts between Westminster and the Assemblies? And what role would the Supreme Court have in it?

  4. Croft
    20/02/2009 at 10:40 am

    Thank you for that clarification. I was fairly sure the technical possibility of lay peers sitting had not been abolished (in theory if not in practice) but there’s nothing worse than relying on your memory!

    The present law lords will obviously retain their titles but has there been a statement to confirm if future LLs will be given peerages so they may sit after retirement from active judicial work?

    I’m with, I think, the majority who couldn’t see the point of the Law Lords leaving. It seemed a change driven solely for ideological reasons not for any practical benefit to justice – perhaps in one very odd circumstance I can think of it is significantly worse.

    I’d be very interested if you know the answer as I’ve never seen an one given. The Lords retain a quasi-judicial capacity as far as to determine succession for a hereditary peer a role undertaken up to ’99 by the Cttee for Privileges. The ’99 reform act made no mention or change of proceedings in this area. Under standing orders I believe the Cttee has to have 4 Law Lords to determine such claims. Now with the Law Lords going those SOs can’t be fulfilled.

    We seem, without any law/SO/rule changes, to be going from a Cttee of the house with the expertise of the law lords to some mysterious and unexplained determination by Lord Chancellor and
    Secretary of State for Constitutional Affairs subject to what review or oversight no one seems to know. Perhaps I’ve missed something.

  5. lordnorton
    20/02/2009 at 6:03 pm

    There’s a very useful paper produced by the Parliament and Constitution Centre in the Library of the House of Commons on the Constitutional Reform Act 2005 and the case for a new supreme court:


    The arguments advanced strike me as rather lightweight, based on (a) the presumed failure of people to be able to distinguish between the judicial role of the Law Lords and the House of Lords as a chamber of the legislature; (b) the cramped conditions in which the Law Lords operate within the Palace of Westminster, and (c) a possible challenge under Article 6 of the ECHR. No empirical evidence was presented in support of the first claim; the Government just took it as given. And if the conditions were that cramped, why did six of the Law Lords publish a paper making the case for staying where they were? No argument was advanced concerning the delivery of justice and that this would be enhanced by the change. As Lord Mackay of Clashfern pointed out last year (see my earlier post on this), the change to the new Supreme Court means that the cost of delivering justice has increased, but without any increase in the quality. Given that the work of the Appellate Committee operated as a distinct entity, I gather any challenge that the position breached Article 6 of the ECHR was unlikely to get anywhere.

    What benefit will we derive from the new Supreme Court? It will increase the cost of the highest court, a cost to be borne by the courts. It has a name that will confuse people. There have been no changes in the power of the court, but people will assume (wrongly) that it is similar to the US Supreme Court. So what precisely is the point of moving the Law Lords across Parliament Square, at considerable expense, to a relatively small building, in order to carry on doing what they are doing at the moment?

    Croft: On whether future Justices of the Supreme Court will be offered peerages when they retire, there has been no clarification on the point. We do not know whether it will be decided on a case by case basis (which could be somewhat invidious) or whether a convention will develop that a peerage is conferred on each Justice on retirement.

    Adrian Kidney: I have made a note to do a post about Parliament and devolution.

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