Until 2009 the highest court in the United Kingdom was the Appellate Committee of the House of Lords. This made the House of Lords the highest judicial body in the United Kingdom. This has since been replaced by the UK Supreme Court. So, who were the Law Lords who sat in the Appellate Committee and how different was their role to that of the judges who now sit in the Supreme Court?

When was the Appellate Committee of the House of Lords formed?

Before 1876 where the highest court in the land lay was a somewhat unclear. The House of Lords had the responsibility for trying peers – it was considered that only a court made up of the nobility could hold judgement on their fellow nobles. However, petitions were also presented to them when there was believed to be some fault by a lower court. It was not until 1876 that a statute law was passed that made the House of Lords the final court of appeal for all civil and criminal cases in the UK.

Cases in which appeal lies to House of Lords

Subject as in this Act mentioned an appeal shall lie to the House of Lords from any order or judgment of any of the courts following; that is to say,

(1) Of Her Majesty’s Court of Appeal in England; and

(2) Of any Court in Scotland from which error or an appeal at or immediately before the commencement of this Act lay to the House of Lords by common law or by statute; and

(3) Of any Court in Ireland from which error or an appeal at or immediately before the commencement of this Act lay to the House of Lords by common law or by statute.

Section 3 of the 1876 Appellate Jurisdiction Act

The Act set out how the appointment of Lords of Appeal in Ordinary (what are were commonly known as the ‘Law Lords’). These were permanent professional judges who were made members of the House of Lords so that they could sit within it as judges. As Lords, they were given the title of Baron.

Importantly, it should be noted that whilst the Law Lords were full members of the House of Lords, there was a convention that they did not speak or vote. However, this convention was not always followed. For example, whilst Lady Hale never once gave a speech in the House of Lords during her five years as a Law Lord, Lord Mance gave a speeches, including in December 2008 about EU legislation and sat on the European Union Committee. This was a clear afront to the notion of separation of powers.

How did the Constitutional Reform Act (2005) reform the Law Lords?

Until 2009, this continued to be the way that the Law Lords operated. The only major change that was made was that the Law Lords stopped sitting in the House of Lords Chamber after World War Two and instead sat predominantly in a Committee Room as the Appellate Committee of the House of Lords. This meant that the Chamber, usually, did not have to be cleared for them.

However, as Britain moved into the twenty-first century the lack of clear judicial independence became increasingly difficult to defend in a modern liberal democracy. The first serious attempt to change this aspect of House of Lords was in 1873. The Government of William Gladstone attempted to remove the judicial function of the House of Lords entirely. However, when the Conservatives came back into power this was abandoned and demands for reform did not re-emerge for some time.

The fundamental problem with the existence of the House of Lords was that there was no separation powers. The highest judges in the country were also members of the legislature. They therefore (convention aside) had a say over the laws which they would later have to enforce and adjudge in their judicial decisions. Even if they did follow the convention and not vote on bills, they were still sharing a chamber with those that did and could have undue influence behind the scenes. In addition, there were also a logistical problem. The Law Lords took up valuable parliamentary space. There was an increasing consideration that constitutional reform needed to be made.

The impetus for the changes came from Tony Blair’s modernisation agenda. After reforming the House of Lords membership through the House of Lords Act (1999), the Labour Government went on to reform the judicial system in the Constitutional Reform Act (2005). This did three key things:

1. It removed the judicial function of the House of Lords. In its place it created the UK Supreme Court. The Law Lords then became the first justices of the UK Supreme Court. After 2009, as a result of the Constitutional Reform Act (2005), the Appellate Committee of the House of Lords, and the Law Lords that sat as it, no longer existed.

2. It changed the role of the Lord Chancellor. The Office, and the person holding it, traditionally had a role in all three branches of the Government as:

– The Speaker of the House of Lords (Legislature)

– A member of the Cabinet (Executive)

– The Head of the Judiciary (Judiciary)

However, after the reform the role of Head of the Judiciary was given to the Lord Chief Justice and the Speaker of the House of Lords was created as a separate office.

3. It created the Judicial Appointments Commission to allow for a fairer and more transparent system for the appointment of senior Judiciary.

How different in operation is the Supreme Court to the Appellate Committee of the House of Lords?

In terms of structural differences there is not a significant difference between the UK Supreme Court and Appellate Committee of the House of Lords:

• Its powers and jurisdiction are the same.
• There were the same number of judges.
• The way they were appointed was similar (although a new appointment process was bought in for the Supreme Court).
• The demographic make-up of the court was similar (indeed, 10 of first 12 justices of the Supreme Court transferred directly from the Appellate Committee).

However, there are some differences that the Supreme Court has had:

• It is far more transparent and visible. For example:

– There is a dedicated feed of the courts at The Supreme Court.

– Judgements are published openly with a shorter summary version for the press.

• There has been a greater sense of separation. The move to Middlesex Guildhall has raised the profile of the judicial branch and allowed it to develop its own character.

• It has allowed the judiciary to develop its own persona and do more outreach.

Whilst this cannot be clearly quantified, there is a distinct sense that the Supreme Court has acted in a more independent than the Appellate Committee of the House of Lords. Significant judgements like Miller vs Brexit and, even more so, Miller vs Prime Minister have shown the Supreme Court taking decisions on explicitly political issues that are contrary to the wishes of the Government.

Article Summary

The Law Lords is the informal term for Lord Ordinary-in-Appeal. These were the judges who occupied the Appellate Committee of the House of Lords. In 2005 the Constitutional Reform Act saw the creation the UK Supreme Court which meant to the transfer of the judicial functions of the House of Lords to the new institution.

Key Terms

Appellate Committee of the House of Lords – The Committee made up of judges in the House of Lords that acted as the highest court of appeal in the UK between 1876 and 2009.

Lords Ordinary-in-Appeal – The formal name of the judges that sat in the Appellate Committee of the House of Lords.

Law Lords – The informal term for Lords Ordinary-in-Appeal.

UK Supreme Court – The new court set up as part of the Constitutional Reform Act (2005) that now acts as the highest court of appeal in the UK.

Constitutional Reform Act (2005) – The Act of Parliament that created the UK Supreme Court.

Lord Chancellor – The figure who until the Constitutional Reform Act (2005) held a position in the Executive, Legislature and Judiciary.