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Reviewing this masterful volume is a daunting task.  Daunting because of both the sheer volume of material – 40 contributions spread over nearly 750 pages, not to mention the various useful appendices – and the combined wisdom and experience of the editors, never mind the stellar line-up of contributors – 41 in total, excluding the editors, of which 14 are serving or retired full-time judges from various jurisdictions.  Two current Supreme Court justices (Lord Hope and Lady Hale) are among them, as is Lord Bingham, Senior Law Lord from 2000 until 2008.

The book is split into five parts.  It commences with several very interesting chapters on the formation, day-to-day functioning and end of the institution itself; Part B, enticingly entitled “The Judges”, takes a look at various Law Lords, how they got to the highest level of the judiciary and the way they have approached their tasks – be it that of handling the role of Lord Chancellor, the approach to precedent or the way in which they have written judgments.  Next, there follows a magisterial 100-page historical tour d’horizon, split into five chapters, charting successive eras of the Appellate Committee.  Part D gives voice to the thoughts of the ‘outsiders’, including perspectives from Scotland and Northern Ireland, a number of Commonwealth countries, the US and the EU.  Quite rightly, this section also includes (not uncritical) views from two distinguished ‘users’ in the legal community; indeed, there may have been a case for soliciting more pieces from those at the ‘coalface’ of litigation before their Lordships.  Finally, Part E is dedicated to an examination of the Lords’ contribution to various areas of law; naturally it is not (and could not realistically be) exhaustive, but the content is extensive and rich in detail, and various pieces in this section will no doubt merit inclusion in key reading lists for the subjects on which they focus.

If one theme emerges particularly strongly (if unsurprisingly) from this collection of essays, it is that of change.  Here are three examples: two of considerable change; and one where change might fairly be said to have hardly taken place at all.

First, a striking feature in the evolution of the House of Lords, captured by the book, has been in the make-up of its caseload, which has generally reflected the principal legal controversies of the day.  As Drewry and Blom-Cooper themselves note in their piece on “The House of Lords and the Court of Appeal” at p 53:

“if it was only a slight exaggeration to suggest that the House of Lords in the 1950s and 1960s functioned substantially as a specialist tax tribunal, it is surely no more of an exaggeration to suggest that it has now become a court specialising substantially in public law.”

The Judicial House of Lords bears ample testimony to this particular evolution.  We are reminded on numerous occasions how far the Lords have fashioned administrative law: for example, it is now inconceivable that the Supreme Court would decide a case à la Franklin v Minister of Town and Country Planning [1948] AC 87, in which, despite the Minister having clearly pre-judged the outcome of a public inquiry into whether Stevenage should become the first new town in post-war Britain, their Lordships dismissed the applicant’s appeal on the basis that the decision was “purely administrative” and that any bias was irrelevant –see chapter 14, p 210.  This chapter, also by Blom-Cooper and Drewry, draws attention to the pioneering work of the Lords in this area during the Reid and Wilberforce era, many of which cases are routinely cited and relied upon in judicial review proceedings today.  Other contributions, such as those by Dickson (ch 16), Hadfield (ch 28), Craig (ch 29) and Feldman (ch 30), consider the more recent output in public law cases, in particular the slew of cases in which their Lordships grappled with human rights issues following the entry into force of the Human Rights Act.  A substantial minority of the Lords’ docket in the last few years of its existence comprised public law and human rights appeals – some 35 per cent of all appeals, according to Drewry and Blom-Cooper (p 53) – and it will be no surprise if the statistics for the first few years of the Supreme Court end up painting a similar picture.  As others have noted, it was perhaps fitting that the Supreme Court chose to commence life with an important human rights case concerning the use of freezing orders against suspected terrorists: A v HM Treasury (pending).

Another obvious change – more revolution than evolution – was the process by which the House of Lords was stripped of its Appellate Committee and, in its place, the Supreme Court was born.  The extraordinary chain of events is detailed by Andrew Le Sueur, who acted as specialist adviser to both the House of Commons Constitutional Affairs Committee and the ad hoc House of Lords Select Committee on the Constitutional Reform Bill in 2004 and who in 2008 co-organised a series of seminars for the senior judiciary, practitioners and academics on the Supreme Court – clearly as qualified an author as any to guide the reader through the politics and implementation of constitutional reform.  Le Sueur’s piece brings out the tensions within the Cabinet – in particular Lord Irvine’s opposition to reform –the fact that the process was handled particularly badly, with the senior judiciary not even being consulted on the proposals, and the conservative approach adopted to reform of the highest court.

Countless other examples of change are documented and commented on in the collection, including the increased use in recent times of “considered opinions” of the Appellate Committee (and even, in Norris v United States of America [2008] UKHL 16, a “composite” opinion drafted by various members of the Committee hearing that case); the welcome introduction of judicial assistants to help the judges with research and petitions for leave to appeal; and the growing trend in their Opinions of referring to academic materials and undertaking comparative law analyses.

One area in which change has not been forthcoming to any material extent, however, is in the composition of the Court.  As is well known, the first female member of the Appellate Committee was appointed only in 2004, and we have yet to see an ethnic minority Appeal Court judge, let alone a Supreme Court justice.  In “Appointments to the Lords: Who Goes Upstairs” Kate Malleson argues that it will now be (even) more difficult to defend the homogeneity of the justices selected to sit in the highest court of the land.  The need for greater diversity to ensure institutional legitimacy does not, however, simply suggest a need to rectify the gender and ethnic imbalance; it points to the importance of having a range of professional backgrounds among the Supreme Court’s composition, including solicitors and academics (as, respectively, Lord Collins and Lady Hale were before being elevated to the Bench). 

There is also the thorny issue – apparently being grappled with at the moment by the selection panel chaired by Lord Philips, the President of the Supreme Court – of whether appointments ought to be made directly from practice.  Whilst the panel should undoubtedly focus principally on merit and, perhaps, current ‘gaps’ in the collective expertise of the serving Justices (as to which see Louis Blom-Cooper’s article in The Times on 29 October), there are those who say that the incentive to join the judiciary, thereby often making a considerable financial sacrifice, will be diminished if practitioners are able to leap-frog serving judges, for some if not all of whom the prospect of promotion to the highest court in the land may have been a prime motivation.  There arises also the question whether practitioners have the skills and experience necessary for appellate judging, although that did not seem to hinder the small number of Law Lords who were appointed without prior judicial experience, most notably Lord Reid.  Only time will tell whether the panel will heed the advice of Lord Bingham, who writes that the selection panel’s task should be to

“choose outstandingly able younger candidates who would have time to mature and develop in office.  There would be obvious risks in this more adventurous approach, and it might well lead to more appointments direct from professional practice and from academe.  But it may be an approach worth considering in order to achieve a blend of youthful energy with seasoned experience in a court fully attuned to the contemporary world” (p 125).

Change may be a key theme, but this collection will serve as a permanent reminder of the judicial work of the House of Lords.  The overall quality, in terms of both presentation and content, is first-class, and no discourtesy is intended to those contributors not specifically mentioned in this review.  The editors and publisher are to be congratulated on achieving what must have been a Herculean task. It is undoubtedly a fitting tribute to a mighty institution.

The Judicial House of Lords 1876-2009, is published by Oxford University Press.