Opinion – The House of Lords and the High Court of Australia

Introduction

uring argument in the matter DJL v The Central Authority 1  before the High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) the following was stated in transcript2 :

“HAYNE J:  …  Do you point to any practice, for example in the House of Lords, where questions can be certified from intermediate courts, showing that the final appellate court does not retain control over the matter that is certified by an intermediate court to the point where the final court can revoke the certificate granted?  … MR BASTEN:  …  The final document … relates to … Justice Hayne’s question about the UK analogy.  The extracts from the Administration of Justice Act 1969, and in particular section 12, indicate that what, as I understand it, happens here is that a certificate is given by the trial judge which permits leave to appeal to be sought from the House of Lords.  The House of Lords then determines, at section 13(2), whether leave is to be granted or not.  If that is — … MR BENNETT:  …  Pinochet’s Case is, of course, a clear example of it, but Justice Gummow has indicated some problems with drawing analogies about entered and unentered orders and, indeed, even comparing it to a court in the traditional sense.  … KIRBY J:  But I think that that is certainly how the House of Lords is treated in the English hierarchy.  I mean, it is, it is true, part of the legislature, but it is not acting in a legislative fashion, it is a court, and it delivers reasons of people who are not judges.  So that, I think, there is an analogy.  They at least thought that they had the power, in that case, to set aside what was a very important order, for all appearances completed.  … McHUGH J:  The House of Lords do treat it as a legislative chamber; the Lord says, ‘I move, let this appeal be allowed’; it reflects — its emotion. KIRBY J:  I do not think they concede themselves there as acting in a legislative fashion.  Indeed, they move into another mode, they go into another place when they act legislatively. MR BENNETT:  Yes, but it may be relevant to the application of rules of this nature. KIRBY:  It may be. GLEESON CJ:  When you say they go to another place, I thought they actually stood up in the House of Lords and announced their decision in the House of Parliament. MR BENNETT:  That I cannot assist your Honour with. GLEESON CJ:  I thought they were actually televised doing that in the case of Pinochet. McHUGH J:  And the Chancellor is on the woolsack when he is sitting. MR BENNETT:  Yes.  Well, that emphasises that one — McHUGH J:  I mean, they hear them in a committee room, but there is nothing unusual about that. MR BENNETT:  Yes. GLEESON CJ:  That is why they begin their speeches, ‘My Lords’. MR BENNETT:  Yes, and that is why they are called speeches and not judgments when one refers to them. McHUGH J:  Yes. KIRBY J:  Yes, but I think this is all concentration on form rather than substance.  The substance is it is the final appellate court of England and Wales. MR BENNETT:  Well, when one looks at what rules apply to it, it may be necessary to look beyond — KIRBY J:  It may be.  That, I think, is a fair observation. MR BENNETT:  Yes, and the fact that it did not refer to the question of entry rather means that it is being treated in a different way to the way the other cases are treated. McHUGH J:  But is not the order of the House entered in the journals of the Lords? MR BENNETT:  Yes. McHUGH J:  It is entered in the journals of the Lords. MR BENNETT:  Yes. McHUGH J:  It is not entered as a judgment. MR BENNETT:  Yes, but it is a different form of entry. McHUGH J:  Yes.”

The uncertainty contained within that extract from the transcript of the High Court of Australia, provides the basis for this article3.  This article examines the Judicial Committee of the House of Lords in the context of its relevance for the purpose of precedent in the High Court of Australia.

History of the House of Lords

During the Middle Ages, petitions of many kinds seeking the King’s justice were addressed to the King or to the King in Council4.  Early legal appeals were brought from the Court of King’s Bench by way of a petition to the King or by way of a writ issued by the Crown, where error had occurred in the Court of King’s Bench5.  The jurisdiction to hear these appeals was exercised by the House of Lords.  Although this jurisdiction fell into abeyance, in the 17th century the House of Lords relied upon earlier precedent to justify the resumption of an active judicial role not only upon reference from the Crown, but also over causes in equity 6.  In 1873 the jurisdiction of the House of Lords with respect to English appeals was to be abolished by the Supreme Court of Judicature Act 7, however, the then government lost office before that Act came into effect8. 

Jurisdiction

The House of Lords is the final court of appeal for the United Kingdom; it hears appeals from the Court of Appeal in England and Wales and Northern Ireland in both civil and criminal matters and from the Court of Sessions of Scotland in civil matters9.  Each appeal is now subject to statutory provisions either confirming or creating the right to appeal10. 

The Law Lords

The composition of the House of Lords for the purpose of exercising its judicial function is now restricted to those ‘qualified’ to take part11.  In the case of Bradlaugh v Clarke (1883) 8 AC 354, Lord Denman, a lay peer, intervened at judgment; although it is not clear whether his vote was counted12.  In the past ‘lay’ participation in judicial decisions seems to have been rare13. 

Significantly, in 1856 Sir James Parke, a Baron of the Exchequer, was raised to the peerage as Lord Wensleydale with the purpose of enabling him to assist in the hearing of appeals14.  His original Letters Patent purported to create him a Baron for his natural life15.  This life appointment as a ‘law Lord’ was given statutory expression in the Appellate Jurisdiction Act 1876 (UK) 16. 

Today there are currently twelve Lords of Appeal in Ordinary.  Additionally, former Lords of Appeal in Ordinary, former Lord Chancellors and holders of other high judicial office are entitled to sit as Law Lords under the relevant Act17. 

The Court

The Appellate Jurisdiction Act 1876 (UK) authorised the House to sit for judicial business not only on days when Parliament was itself sitting, but also on days during periods of dissolution18. 

The Law Lords now seldom meet in the Chamber of the House itself to hear appeals.  The use of a Committee Room (by necessity, during the Second World War) led to the constitution of an Appellate Committee, which first sat in 194819.  In 1960 a second Appellate Committee was appointed20.  In 1962 two Appellate Committees sat for the first time concurrently21.

For the purpose of hearing appeals, an Appellate Committee usually consists of five Law Lords, though in exceptional or important cases a Committee has (often) comprised of seven members22. 

Some matters are still heard in the Chamber of the House itself23.  Of relevance to the comments of the High Court of Australia in the transcript in DJL referred to above, is the fact that the judgment of an appeal is always given in the Chamber itself, usually on Thursday afternoons, by way of a vote upon the report of the Appellate Committee which heard the appeal in question24.  Relevantly, these sittings, serve as a reminder that it is the ‘Court of Parliament’ that hears and determines the appeals25.  Although the House may only be sitting for judicial business, it is listed as a Parliamentary sitting day in the calendar26. 

Leave to Appeal

A Court below can grant leave to appeal to the House of Lords.  If the Court below refuses leave to appeal, a party may seek leave to appeal from the House itself by presenting a petition for leave to appeal within one month (fourteen days in criminal matters) from the making of the order27 .  Every admissible petition is then referred to an Appeal Committee, consisting of three Lords of Appeal28.  In similarity to special leave applications in the High Court, these Appeal Committees consisting of three Lords will often sit concurrently29.  If a Committee is unanimously of the view that a petition should provisionally be allowed, then the respondents to the petition are invited to submit objections within one month as to why leave should not be granted30. 

The Hearing

The Law Lords sit in a semi-circle around a ‘horse-shoe’ table with the senior Law Lord present presiding as Chairman31.  The Lords do not wear robes.  Counsel do appear robed with wig32.  The average duration is just over two and a half days33.  Significantly, there are few ex-tempore judgments, for the simple reason that the opinions of the Committee are of no binding force until they are agreed to by the House34.

Judgment

The sittings for judgments, even though only the Law Lords are present, are full meetings of the House35.  The presiding Law Lord sits as Speaker, the Mace is present on the woolsack and a Bishop reads the prayers36.  The Principal Clerk of the Judicial Office summons Counsel and others to the Bar of the House, and announces the consideration by the House of the report of the Appellate Committee in that appeal37. 

In the past, each Law Lord read out the whole of his speech in full38.  Now, printed ‘speeches’ are distributed before the House meets and each Law Lord merely states whether he ‘allows’ or ‘dismisses’ the appeal in writing39.  From the woolsack, the presiding Law Lord will state the orders to be made40.  Those Law Lords of that opinion will use the term “Content” or “Not-Content” if in dissent41. 

After the House has given its judgment, a written order is signed by the Clerk of the Parliament, as the Registrar of the court42. 

The political role

The Law Lords remain members of the House, even after their retirement as Law Lords43.  Many retired Law Lords have played a significant role in the examination of legislation44.  Many of the current Law Lords have become involved in political issues within the House45.  As Lord Bingham, recently stated:  “The Law Lords are judges not legislators and do not belong in a House to whose business they can make only a slight contribution”46.     

The Lord Chancellor

Previously, the Lord Chancellor was entitled to sit judicially in the House of Lords and in the JJudicial Committee of the Privy Council47.  When the Lord Chancellor sat, he took the presiding chair48.  Lord Falconer of Thoroton, as Lord Chancellor, has indicated that he “will not participate in the judicial business of the House”49.  The Lord Chancellor is also a (senior) member of the Cabinet as the Secretary of State for Constitutional Affairs50.

The Relationship

In Piro v W. Foster & Co. Ltd (1943) 68 CLR 313 Latham CJ stated that where there is legal conflict between the High Court of Australia and the Judicial Committee of the House of Lords, the High Court should defer to the House of Lords.   Later, in Parker v The Queen51, his Honour Dixon CJ stated:

“In Stapleton v The Queen (1952) 86 CLR 358 we said:  ‘The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous’ (1952) 86 CLR 365.  That was some years before the decision in Director of Public Prosecutions v Smith (1961) AC 290, which seems only to unfortunately to confirm the observation.  I say to unfortunately, for I think it forces a critical situation in our (Dominion) relation to the judicial authority as precedents of decisions in England.  Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith’s case (1961) AC 290 I think that we cannot adhere to that view or policy.  There are propositions laid down in the judgment which I believe to be misconceived and wrong.  They are fundamental and they are propositions which I would never bring myself to accept.  I shall not discuss the case.”

In cases as recent as Lifesavers (Australasia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431, decisions of the House of Lords have been applied where there were no conflicting decisions of the Privy Council or the High Court52.  However, there have been a number of recent decisions of the High Court where the court did not consider follow a decision of the House of Lords.  For example, in R v O’Connor (1980) 146 CLR 64 at par 45 per Wilson J, his Honour referred to the decision of the House of Lords in Public Prosecutions, Director of v Majewski [1977] AC 443, however, the High Court did not follow that earlier decision.

Reforming the House of Lords

There have been (relatively) recent announcements as to constitutional reform in the United Kingdom — the new Supreme Court of the United Kingdom rules can be downloaded from the UK parliament website.  These reforms may also reduce the uncertainty as identified by the transcript from DJL v Central Authority referred to above. 

Conclusion

The transcript in DJL v The Central Authority is indicative of the unique judicial role of the House of Lords.  When the Queensland-born53  Lord Atkin of Aberdovey delivered judgment in Donohue v Stevenson54, little was His Lordship to know that uncertainty regarding the judicial function of the House of Lords would continue to ‘permeate’ High Court transcript over 50 years later.  Perhaps, this uncertainty may be fully remedied by reform, whether liked or disliked.

 Joshua Clifford

 Dominic Katter

Endnotes:

1. (2000) 201 CLR 226; 74 ALJR 706; 170 ALR 659; 26 FAM LR 1; [2000] FLC 87, 262 (93-015).
2. See http://www.austlii.edu.au/au/other/hca/transcripts/1999/s75/2.html.   
3. See http://www.austlii.edu.au/au/other/hca/transcripts/1999/s75/2.html.  
4. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
5. See Demison and Scott, Practice and Procedure of the House of Lords, London (1879).
6.  See Blom-Cooper and Drewry, Final Appeal: A Study of The House of Lords in its Judicial Capacity, Oxford (1972).
7. See Stevens, Law and Politics: The House of Lords As a Judicial Body 1800-1976, Weidenfeld and Nicolson (1979). 
8. In this regard see Robert Stevens in Brice Dickson and Paul Carmichael (eds) The House of Lords:  Its Parliamentary and Judicial Roles (Oxford: Hart Publishing, 1999) at 112.
9. Dickson, B, Carmichael, P. The House of Lords Its Parliamentary and Judicial Roles (1999) at 112.
10. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
11. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
12. See Stevens, “The Final Appeal: Reform of the House of Lords and Privy Council, 1867-1876” Law Quarterly Review Ixxx (1964) at 343.
13. There was an attempt made by some lay Peers to vote against the quashing of Daniel O’Connell’s conviction in 1844.  The then Lord President of the Council, Lord Wharncliffe, said on that occasion: “I cannot help suggesting that your lordships should not divide the House upon a question of this kind, when the opinion of the law lords have already been given upon it, and the majority is in favour of reversing the judgment.  In point of fact my lords, they constitute the Court of Appeal, and if noble lords unlearned in the law should interfere to decide such questions by their votes instead of leaving them to the decision of the law lords, I very much fear that the authority of this House as a court of justice would be greatly impaired”:  see Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
14. Peterson, The Law Lords (1982).  See also Judicial Work of the House of Lords at               http://www.publications.parliament.uk/pa/ld199697/ldinfo/ld08judg/ld08judg.htm accessed 20/6/03.
15. See Peterson, The Law Lords (1982).   
16. See May, The Law, Privileges, Proceedings and Usage of Parliament, ed Boulton, 21st ed (London 1989) at 64, 176 and 417.
17. The Judicial Pensions and Retirements Act 1993 (UK), which came into force in 1995, lowered the age of retirement of new Lords of Appeal in Ordinary from 75 to 70.  In this regard, see the composition of the Judicial Committee in Re Pinochet No 2:  Lord Browne-Wilkinson, Lord Goff of Chieveley, Lord Nolan, Lord Hope of Craighead and Lord Hutton.
18. See House of Lords Briefing linked to homepage of United Kingdom Parliament via     http://www.publications.parliament.uk/pa/ld199798/ldbrief/ldjuduc.htm accessed 21/6/03.
19. See The Judicial Work of the House of Lords – House of Lords Briefing at http://www.parliament.uk/documents/upload/HofLBpJudicial.pdf.
20. See Demison and Scott, Practice and Procedure of the House of Lords, London (1879).
21. These Committee Rooms are described quite simply as Room 1 and Room 2:  Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.  See also The Judicial Work of the House of Lords – House of Lords Briefing at http://www.parliament.uk/documents/upload/HofLBpJudicial.pdf. 
22. See Pepper v Hart [1993] AC 593 and R v Bow Street Metropolitan Stipendiary Magistrate & Ors, ex parte Pinochet Ugarte (No 3) [1999] 2 All ER 97.
23. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
24. See for example the Judicial Work of the House of Lords at               http://www.publications.parliament.uk/pa/ld199697/ldinfo/ld08judg/ld08judg.htm accessed 20/6/03.
25. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
26. See the website of the United Kingdom Parliament:   http://www.parliament.uk/judicial_work/judicial_work.cfm.
27.    See House of Lords Briefing linked to homepage of United Kingdom Parliament at      http://www.publications.parliament.uk/pa/ld199798/ldbrief/ldjuduc.htm accessed 21/6/03.
28. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
29. See House of Lords Form of Appeal, Practice Directions and Standing Orders applicable to Civil Appeals and House of Lords Form of Appeal and Practice Directions applicable to Criminal Appeals.
30.  For a note on a successful petition see R v Home Secretary, ex p. Pierson [1996] 3 WLR 547 at 562; for a note of an unsuccessful petition see Coca-Cola Financial Corp v Finsat Ltd [1996] 3 WLR 849 at 859.
31.  See Judicial Work of the House of Lords at http://www.publications.parliament.uk/pa/ld199697/ldinfo/ld08judg/ld08judg.htm accessed 20/6/03.
32. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
33. See Judicial Work of the House of Lords at http://www.publications.parliament.uk/pa/ld199697/ldinfo/ld08judg/ld08judg.htm accessed 20/6/03.
34. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
35. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
36. See Stevens, Law and Politics: The House Of Lords As a Judicial Body 1800-1976, Weidenfeld and Nicolson (1979).
37. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
38. See Demison and Scott, Practice and Procedure of the House of Lords, London (1879).
39. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
40. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
41. Since November 1996, House of Lords judgments have been available on the internet.
42. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
43. See Royal Commission, Reform of the House of Lords: A Consultation Paper, March 1999.
44. See Modernising Parliament:  Reforming the House of Lords, Cm 4183, January 1999 at Chapter 7, par 20.
45. Several serving Law Lords, including Lord Bingham of Cornhill, supported a Private Member’s Bill to incorporate the European Convention on Human Rights into United Kingdom law.  Lord Hoffmann introduced and moved a government-sponsored amendment to the Defamation Bill 1996 (UK).  Lord Woolf MR (as he then was) opposed the provision in the Criminal Justice Bill 1997 for mandatory sentences.
46. Hazell, “Supreme Court UK-Style” (2003) 47 Amicus Curiae:  Journal of the Society for Advanced Legal Studies, May/June at 1.
47. Hazell, “Supreme Court UK-Style” (2003) 47 Amicus Curiae:  Journal of the Society for Advanced Legal Studies, May/June at 1.
48. See Robert Stevens, The Independence of the Judiciary:  The View From the Lord Chancellor’s Office (1993). 
49.  http://www.parliament.uk/about_lords/the_law_lords.cfm.
50. http://www.parliament.uk/about_lords/the_law_lords.cfm.
51. (1963) 111 CLR 610 at par [17].
52.  In that case, the decision of the House of Lords in Photo Production Limited v Securacorp Transport Ltd [1980] AC 827 was applied.
53. James Richard Atkin was born in Queensland on 28 November 1867, his father, Robert Travers Atkin died soon after James, the eldest son, was born.  The widow, Mary Atkin, returned to Wales in 1872 with James:  see Lewis, Lord Atkin, Butterworths, London (1983).
54. [1932] AC 562, 580.