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British Law Lords

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Description: Great Britain's court of last resort, composed of eleven distinguished jurists named by the British prime minister to life peerage in the House of Lords.


Significance: Unlike the U.S. Supreme Court, the British Law Lords lack the power to declare the actions of other British national institutions unconstitutional, but they do have a modest power of judicial review by interpreting statutes and treaties.


The Law Lords are the court of last resort in Great Britain and, in this way, they are the closest institution in Britain to the U.S. Supreme Court. Despite the similarities between the British and U.S. common law systems in both theory and practice, the differences between the Law Lords and the Supreme Court are significant. At the top of the U.S. court system is the nine-member Supreme Court, while the British court of last resort contains eleven Law Lords. The Law Lords are distinguished judges appointed by the prime minister to be life peers in the House of Lords. With life tenure, the Law Lords have nearly the same immunity from removal that U.S. justices have, except that there is no regularly recognized power of impeachment in Britain. Instead of sitting as a unified bank of jurists, the Law Lords sit on cases in panels of three to five judges. The remainder of the Law Lords use a convention that regards the judgment of the three- or five-member panels as equivalent to rulings produced by all eleven lords. In theory, all the members of the House of Lords serve as the court of last resort, so this convention actually extends to the entire body. If an unusually large number of cases arise, the House of Lords may delegate its judicial power to the Lord Chancellor, retired law lords, or even other distinguished jurists among their members. The Law Lords are simply appointed by the Prime Minister in contrast to the American procedure of the president nominating and the Senate confirming the appointments of justices. Despite what might seem to be the more politicized process in Britain, the Law Lords appointed so far have not been narrow partisans; for customary practice requires them to be very distinguished in the law. Both Britain and the United States accept basic principles of the common law, relying on judge-made decisions to a greater degree than they do on detailed codes as in Roman or code systems. Within that common-law tradition, Britain and the United States diverged after the American revolution and the ratification of the U.S. Constitution in that the United States came to rely more on statutory law than common law. The most obvious example is the decision to have a written constitution, or a “super” statute, replacing common law on the federal level and setting a “super” statutory standard against which all other statutes could be measured. Although the British refer to themselves as a constitutional government, the British have no single document that can form the basis for judicial review.


Judicial Review

Clearly the U.S. and British judicial system differ in the United States’ use of judicial review, which allows courts to strike down laws as being at variance with the Constitution. Unlike the U.S. system of separation of powers, the British maintain that Parliament is supreme; therefore, no constitution is higher and no institution exists to declare laws unconstitutional. Because there is no British constitution, there is naturally no Bill of Rights to protect the rights of the accused as there is in the United States. For example, the Constitution provides the guarantee of a writ of habeas corpus that does not exist in Britain. Britain's accused are not normally incarcerated for long periods without a trial, but occasionally people have been held for long periods without being charged with a crime. In such cases, no British court could declare the government's action unconstitutional. To say that British courts cannot declare a law unconstitutional is not to say the courts are powerless, for they have the common-law power to interpret parliamentary statutes. Although they never declare parliamentary enactments unconstitutional, their interpretation is broad enough to include limits they derive from the “traditional” constitution included in the common law. Judicial review is also present in the British system in that the entire British government has signed treaties making it a part of the European Community and accepting the authority of the Court of Justice of the European Community and the European Court of Human Rights to enforce Britain's obligations under the treaties. Some antecedents to judicial review existed in Britain before the founding of the United States, but the United States carried judicial review much further with the U.S. Constitution. As judicial review becomes more popular globally, the concept is slowly being introduced into Britain in a form never previously seen.



Further Reading

  • Cappelletti, Mario. The Judicial Process in Comparative Perspective. Oxford: Clarendon Press, 1989.
  • Glendon, Mary Ann, Michael Wallace Gordon, and Christopher Osakwe. Comparative Constitutional Legal Traditions in a Nutshell. St. Paul. Minn.: West Publishing, 1982.
  • Kommers, Donald, and John Finn. American Constitutional Law: Essays, Cases, and Comparative Notes. Belmont, Calif.: Wadsworth, 1998.
  • Murphy, Walter F., and Joseph Tanenhaus. Comparative Constitutional Law: Cases and Commentaries. New York: St. Martin s Press, 1977.
  • Rasmussen, Joel, and Joel C. Moses. Major European Governments. 9th ed. Belmont, Calif.: Wadsworth, 1995.