Judicial functions of the House of Lords
Whilst the House of Lords of the United Kingdom is the upper chamber of Parliament and has government ministers, for many centuries it had a judicial function. It functioned as a court of first instance for the trials of peers and for impeachments, and as a court of last resort in the United Kingdom and prior, the Kingdom of Great Britain and the Kingdom of England.
Appeals were technically not to the House of Lords, but rather to the King-in-Parliament. The Appellate Jurisdiction Act 1876 devolved the appellate functions of the House to an Appellate Committee, composed of Lords of Appeal in Ordinary. They were then appointed by the Lord Chancellor in the same manner as other judges.
During the 20th and early 21st century, the judicial functions were gradually removed. Its final trial of a peer was in 1935, and the use of special courts for such trials was abolished in 1948. The procedure of impeachment became seen as obsolete. In 2009, the Supreme Court of the United Kingdom became the new court of final appeal in the UK, with the extant Law Lords becoming Supreme Court Justices and the appointment of new Law Lords ceasing.
History
Parliament's role in deciding litigation originated from the similar role of the Royal Court, 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. Skinner had established his business's trading base in Asia while few English restrictions on trade existed; later the base was seized by the Honourable 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 afterwards the houses clashed over jurisdiction in 1675. The Commons felt that the upper house had breached its privileges by considering cases with members of the Commons as defendants. After the Lords considered one of these, Shirley v Fagg, the Commons warned them to "have regard for their Privileges". Soon the dispute became worse when two more such cases emerged. These included Thomas Dalmahoy and Arthur Onslow. One case was from the Court of Chancery, and the other was from the equity branch of the Court of the Exchequer. The Commons unsuccessfully contended the Lords could hear petitions challenging decisions of common law courts but not those from courts of equity.
The dispute rested during prorogation commencing 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 Acts of Union provided that "no causes in Scotland be 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 acts were silent on appeals to the House of Lords, unless they be deemed of 'like nature' to Westminster Hall, in which case, such appeals were banned. 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 Act 1808 empowering the lower court to determine if an appeal justified the stay of its 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 before the Union, no further appeal lay. The House agreed not to hear further Scottish criminal appeals.
The Kingdom of Ireland was politically separate from Great Britain and subordinate to it. The Irish House of Lords regarded itself as the final court of appeal for Ireland, but the British Declaratory Act 1719 asserted the right of further appeal from the Irish Lords to the British Lords. This was odious to the Irish Patriot Party and was eventually repealed as part of the Constitution of 1782. Appellate jurisdiction for Ireland returned to Westminster when the Acts of Union 1800 abolished the Parliament of Ireland.
A 1627 lunacy inquisition judgment was appealed from Chancery to the Privy Council of England rather than the House of Lords. Bypassing the Lords was repeated at the next such appeal, in 1826 from the Irish Chancery.
Appeals
Jurisdiction
The judicial business of the House of Lords was regulated by the Appellate Jurisdiction Act 1876. The Law Lords did not have the power to exercise judicial review over Acts of Parliament, and in general only important or particularly complex appeals came before the House of Lords. There was no further appeal from the House of Lords. However, in 1972 the United Kingdom signed the Treaty of Rome and became a member of the European Economic Community, and with this accepted European law to be supreme in certain areas, so long as Parliament does not explicitly override it. The doctrine of Parliamentary sovereignty still applied – under British constitutional law, Parliament could at any time have unilaterally decided to dismiss the supremacy of European law, but in common with other courts in the European Economic Community, the Law Lords referred points involving European law to the European Court of Justice. After 1998, the Lords could also declare a British law to be 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 struck down, and the courts are required to enforce them; it remained up to Parliament to amend the law.While the United Kingdom was subject to all European law, there was a further appeal from the House of Lords to the European courts, but then only in matters concerning either European Community law or the European Convention on Human Rights.
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 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.