The House Of Lords
The House of Lords is the highest court in the United Kingdom, in which its judicial decisions can be overruled only by statute or by a refusal of the house to follow them in later cases. The Appellate Jurisdiction Act 1876 established the House of Lords as the supreme appeal court. It was traditionally bound by its decisions and in 1966 a practice statement was issued by the Lord Chancellor announcing that the House of Lords was no longer to be bound by its previous decisions. As seen in the case of R v R (1991),the House of Lords can overrule previous decisions, but does so rarely. The decision in this particular case concerned the issue of marital rape and it was decided that rape within a marriage was a crime. Thus, resulting in a legal principle being overturned after standing for centuries. Scorsch Mier Gmbh v Hennin (1975) and Miliangos v George Frank (Textiles) Ltd (1975) show that the House of Lords are not bound by their own decisions.
Currently the jurisdiction of the House of Lords is mainly appellate and remains the final appeal court in civil and criminal matters for England, Wales, Northern Ireland, and civil cases only in Scotland. The House of Lords is not supreme for Scottish criminal appeals as they are heard in Edinburgh in the High Court of Justiciary.
The House of Lords is constituted by the Lord Chancellor and Lords of Appeal in Ordinary (known as Law Lords).
Between nine and twelve Law Lords can sit at any one time, two are normally from the Scottish judiciary. When appointed to the House of Lords their term of office is for life. A minimum of three Law Lords are required to sit to form a court, however, in practice five usually sit to hear appeals and their decisions are made by majority judgement. However, seven sat in Cassell Co. Ltd v Broome (1972), and DPP v Majewski (1977).
Civil appeal cases are heard by the House of Lords that have been referred from the Court of Appeal (Civil Division), the Court of Session in Scotland and the Supreme Court of Northern Ireland. Judgements delivered in the House are given to the parties in a printed form without being heard aloud and are otherwise known as ‘opinions’. This practice dates back to November 1963 prior to judgements being heard orally, known as speeches. Any law lord who wishes to express himself orally may still make speeches.
Through The Administration of Justice Act 1969 there are provisions for appeals from a single judge of the High Court, or from a Divisional Court made on a point of law of general importance. In certain circumstances allowances can be made for cases which are of public importance and go directly to the House of Lords (known as the ‘leap-frog’ procedure). A High Court judge may certify that a sufficient case for direct appeal to the House of Lords has been made out, giving justification for the application of leave to appeal. The point of law must relate to the construction of an Act or statutory instrument or it must be a point where the judge is bound by a previous decision of the Court of Appeal or House of Lords.
Criminal appeals to the House of Lords lie both from divisions of the Court of Appeal (Criminal Division) and the divisional court of the Queen’s Bench Division. An appeal can be made only on a point of law can be instituted by either the defendant or the prosecution. Both sides can only appeal if the court below certifies that there is a point of law of general public importance involved, and either the lower court or the Appeal Committee of the House of Lords must give leave. Appeals to the House of Lords in criminal cases are few in number as the conditions are strict to take such an appeal there.
The United Kingdom became a member of the European Communities in January 1973 by the European Communities Act 1972. In doing so the Court of Justice of the European Communities stood above the House of Lords as the Supreme Court. However, this is only in cases with European flavour, otherwise leaving the House of Lords as the final appeal court in the UK. After signing the Treaty of Rome in 1957, the EU affected the domestic sources of law.
The court was renamed in 1958 and is now known as the European Court of Justice (ECJ), which sits in Luxembourg and hears civil cases only.
The ECJ has thirteen judges who are assisted by six advocates general. The great majority of cases heard by the ECJ are brought forward by member states or by the institutions of the European Union or are referred to it by national courts. It has limitations in its powers to deal with cases, which have been brought forward by individual citizens.
The ECJ gives definitive interpretations of European Law in response to questions referred to it by national courts for a preliminary hearing. Thus, the national court then decide the case in light of the ruling from the ECJ. This emphasises the fact that the ECJ interprets the European law and it is the national courts of Member States whom apply it.
The guidelines set out in the case of Bulmer v Bollinger (1974) able our English courts to decide whether a ruling is not necessary where the ECJ has previously given a ruling on the point in question, for example, where the point may be determined on referring to the case law of the ECJ or where the point is reasonably clear and free from doubt.
The ECJ is one of four major institutions that were created by the Treaties establishing the European Communities and on conclusion, it was agreed that there should be one court for the other three communities. The Single European Act 1986 made provisions for the founding of a Court of First Instance to help ease the Court’s work load. It consists of twelve members who normally sit in chambers of three or five judges, but may exceptionally sit in plenary session. The court is to exercise a first instance jurisdiction, giving the right to appeal on a point of law to the ECJ.
Criminal cases with European flavour are heard in the European Court of Human Rights (ECHR), which was created in 1959 and sits in Strasbourg. It was set up by the Convention for the Protection of Human Rights and Fundamental Freedoms. It is now possible for the Court to be approached directly by the person who is alleging a violation in human rights, by bringing an action against the State responsible. After which a panel of three judges then decide whether the case should be heard. The ECHR does have the power to grant ‘just satisfaction’ of a pecuniary nature to the injured party.
The supremacy of the EC law can be seen to be upheld in the case of Commission v UK (Tachographs) (1979), the UK government were forced to introduce tachographs into cargo and frate, had they not done so it would have had serious consequences to follow. In the case of Francovich v Italy (1992), Francovich suffered a financial loss due to his employer(s) going bankrupt and not paying his wages. A directive was passed to protect employees from that situation and Italy did not comply, therefore action could be brought against the state to compensate this.
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