This volume celebrates 130 years of the Appellate Committee of the House of Lords as the final court of appeal of the United Kingdom. A stellar list of contributors is assembled within its 40 chapters, including Law Lords past and present, judges from around the world and senior lawyers and academics. They provide an assessment of the judicial life of the House of Lords. A significant insight is provided by this book into the creation of the new UK Supreme Court and the delicate negotiations between the Blair government and the Law Lords. In these negotiations, Lord Bingham of Cornhill, who until his sad recent death occupied a position of the highest moral standing and integrity in the life of the nation, played a leading role.
It is difficult in this short review to give full attention to all the stimulating contributions. However, two common themes unite them. Firstly, as noted, the judicial House of Lords is assessed as an institution. This view follows to some extent the approach of Blom-Cooper et al in their pioneering book, Final Appeal—A Study of the House of Lords in its Judicial Capacity (OUP, Oxford, 1972). In this vein, two historians—David Jones and David Steel—examine the judicial role of the House of Lords before 1870; the politics surrounding the abolition of the judicial House of Lords by Gladstone in 1874, and its subsequent restoration by Disraeli in 1876. Similarly, James Vallance White, penultimate clerk of the Judicial Office of the House of Lords, gives an insider's account of the internal administration before the advent of the 1997 Labour government, which was widely expected to radically reform the Upper House. The actual reform process itself is considered in greater depth in a chapter by Andrew Le Sueur. A further chapter by Drewry and Blom-Cooper considers the ‘two-tier’ relationship between the Court of Appeal and the House of Lords, concluding that it is one of ‘review and supervision’.
The second theme of the book is the judges themselves. Much historical data has been collated within four appendices; including a list of all Lord Chancellors and Law Lords past and present, analysis of their periods of service, their relationship with their successors, and short biographical pen portraits. Although obscure, much of this detail is fascinating, and reveals the Law Lords to be a more diverse group than might be assumed—although there was admittedly only one woman ever appointed to their ranks (Baroness Hale of Richmond in 2004). At times, the court was composed of a truly international body of lawyers drawn from jurisdictions including South Africa, Ireland, Scotland and New Zealand. This diverse representation of legal cultures and traditions forms the subject of Lord Bingham's chapter on ‘who has served’. Bingham notes, however, that two early trends which have since fallen away—perhaps for the best—are the appointment to the Appellate Committee of lawyers with a previous political career and those with no prior judicial experience. In this regard, the history of the Appellate Committee shows increasing judicial depoliticization and more rigorous merit-based appointment to the highest levels. Another point of interest is the relatively short ‘half-life’ of the Law Lords—since a new Law Lord can be well into his 60s at the time of his appointment, periods of service in the Lords tend to be short, and curtailed either by death or the statutory retirement age of 75. Lord Bingham criticizes the recent reduction of the judicial retirement age in the UK to 70 as an error that will exacerbate this problem.
There are also individual chapters on the influence of the judicial House of Lords on particular areas of substantive law, including European and international law. Francis Jacobs and David Anderson suggest that the House of Lords has had considerable influence as a court of European law, despite the UK's late entry to the EU. However, they conclude that whilst the House of Lords was willing to give effect to European law, this was not always mirrored by a willingness to adapt substantive principles of domestic law to European standards, most notably in the refusal to regard propotionality as a standard of review in English administrative law.
Another highlight is Professor Paul Craig's chapter on administrative law. Unfortunately, this chapter does not include a discussion of perhaps the most important case in recent times, in which the Appellate Committee divided 3:2 to uphold an Order-in-Council that prevented exiled Chagos Islanders from returning to a British colony in the Indian ocean, now used as an American Naval base (R (Bancoult) [2008] UKHL 61). This is true of a number of the individual chapters, as the editors took the view that the final legal year of 2008 to 2009 would not be covered in order to publish the book at the moment of the court's demise. It is in some respects a shame that this book does not cover the developments of that final year, because many leading judgments are missing from its pages. To name only the most prominent of the private law cases, 2009 saw two important judgments by Lord Hoffmann in his retirement year on contractual interpretation (Persimmon v Chartbrook [2009] UKHL 38; Attorney General of Belize v Belize Telecom [2009] UKPC 11); a landmark case on proprietary estoppel (Thorner v Major [2009] UKHL 18); and the Appellate Committee again divided 3:2 on the application of the ex turpi causa principle to a claim in negligence against the auditors of a company used as a vehicle for fraud (Moore Stephens (a firm) v Stone & Rolls Ltd [2009] UKHL 39). On the public law side, this book sadly misses an important case on the requirement of the Government to disclose sufficient detail of the allegations against individuals subject to a control order, (Control Orders [2009] UKHL 28) and the decision of the Privy Council on the effect of a judge's conduct on his ability to discharge the functions of his office (Chief Justice of Gibraltar [2009] UKPC 43).
Despite this, this book will be of interest to any lawyer with a curiosity in recent constitutional reform. Academics and students will also find it a valuable resource. Readers from an international audience may marvel at this story of Britain's slow process towards a modern constitutional settlement.
