Where will the judges sit?

Stephen Sedley

• The House of Lords: Its Parliamentary and Judicial Roles edited by Brice Dickson and Paul Carmichael
  Hart, 258 pp, £30.00, December 1998, ISBN 1 84113 020 6
• Constitutional Futures: A History of the Next Ten Years edited by Robert Hazell
  Oxford, 263 pp, £17.99, January 1999, ISBN 0 19 829801 3
• The Law and Parliament edited by Dawn Olivier and Gavin Drewry
  Butterworth, 219 pp, £15.95, September 1998, ISBN 0 406 98092 6
• Crown Powers: Subject and Citizens by Christopher Vincenzi
  Pinter, 343 pp, £47.50, April 1998, ISBN 1 85567 454 8

When, some years ago, the Bar’s dining room at the House of Lords was closed and barristers appearing before the Law Lords were given permission to use the Peers’ dining room, younger barristers became quite badly disoriented by seeing elder statesmen who they were confident had been dead for many years lunching at the next table. What they didn’t always appreciate was that it was thanks to a similar cryogenic process that the Law Lords themselves were hearing appeals – as they still are. When the Victorians set about rearranging the legal furniture, they legislated to abolish the appellate jurisdiction of the Upper House (a particular anomaly at that time, since it was only by convention that non-lawyers in the House abstained from sitting on appeals). They created a Supreme Court with a Court of Appeal at its apex for England and Wales, leaving Scotland and Ireland with their own separate systems. Limiting the majority of appeals to a one-stop process seemed a logical way of professionalising the judiciary and saving costs. The Supreme Court of Judicature Act, abolishing the Lords’ appellate jurisdiction, was accordingly passed in 1873; but before it came into force, in 1876, a further Act was pushed through, against the advice of both the Liberal reformer Lord Selborne and the Conservative reformer Lord Cairns, restoring the Lords’ nationwide appellate jurisdiction (apart from criminal appeals from Scotland) and creating the office of Lord of Appeal in Ordinary to ensure that only real judges would sit in future. That it was, in Robert Stevens’s words in the Dickson and Carmichael volume, ‘the work of a group of right-wing Tory MPs who cared nothing for law, the courts or litigants, but were anxious to prop up the hereditary principle by creating a group of judges who might balance the bishops’ is of less importance now than the fact that the Appellate Committees of the House of Lords have established themselves as one of the world’s major constitutional courts.

Vol. 21 No. 18 · 16 September 1999 » Stephen Sedley » Where will the judges sit? (print version)
Pages 3-6 | 4662 words