Monday, April 21, 2008

Defamation


In law, defamation (also called vilification, slander, and libel) is the communication of a statement that makes a false claim, expressively stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person.[1] "Unlike libel or slander, truth is not a defense for invasion of privacy."[2]

False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being."[3] If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading then a tort of false light might have occurred.[3]

Contents

[hide]

History

In the later Roman jurisprudence, from which many of modern laws descend, verbal defamations are dealt with in the edict under two heads. The first comprehended defamatory and injurious statements made in a public manner (convicium contra bonos mores). In this case the essence of the offense lay in the unwarrantable public proclamation. In such a case the truth of the statements was no justification for the unnecessarily public and insulting manner in which they had been made. The second head included defamatory statements made in private, and in this case the offense lay in the imputation itself, not in the manner of its publication. The truth was therefore a sufficient defense, for no man had a right to demand legal protection for a false reputation. Even belief in the truth was enough, because it took away the intention which was essential to the notion of injuria.[citation needed]

The law thus aimed at giving sufficient scope for the discussion of a man's character, while it protected him from needless insult and pain. The remedy for verbal defamation was long confined to a civil action for a monetary penalty, which was estimated according to the significance of the case, and which, although vindictive in its character, doubtless included practically the element of compensation. But a new remedy was introduced with the extension of the criminal law, under which many kinds of defamation were punished with great severity. At the same time increased importance attached to the publication of defamatory books and writings, the libri or libelli famosi, from which we derive our modern use of the word libel; and under the later emperors the latter term came to be specially applied to anonymous accusations or pasquils, the dissemination of which was regarded as particularly dangerous, and visited with very severe punishment, whether the matter contained in them were true or false.

Types of torts

Slander and libel

The common law origins of defamation lie in the torts of slander (harmful statement in a transitory form, especially speech) and libel[4][5] (harmful statement in a fixed medium, especially writing but also a picture, sign, or electronic broadcast), each of which gives a common law right of action.

"Defamation" is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel". Libel and slander both require publication.[6] The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander. If it is published in more durable form, for example in written words, film, compact disc (CD), DVD, blogging and the like, then it is considered libel.

Criminal defamation

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred. ARTICLE 19, Global Campaign for Free Expression, has published global maps [2] charting the existence of criminal defamation law across the globe. The law is used predominantly to defend political leaders or functionaries of the state. In Britain, the Italian anarchist Errico Malatesta was convicted of criminal libel for denouncing the Italian state agent Ennio Belelli in 1912. While, in Canada, though the law has been applied on only six occasions in the past century, all of those cases involve libellants attached to the state (police officers, judges, prison guards). In the most recent case, Bradley Waugh and Ravin Gill were charged with criminal libel for publicly accusing six prison guards of the racially motivated murder of a black inmate (http://netk.net.au/Canada/Canada15.asp. In Zimbabwe, "insulting the President" is, by statute, (Public Order and Security Act 2001) a criminal offense.

Defenses

Even if a statement is derogatory, there are circumstances in which such statements are permissible in law.

Truth

In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libel. Proving adverse, public character statements to be true is often the best defense against a prosecution for libel and/or defamation. Statements of opinion that cannot be proven true or false will likely need to apply some other kind of defense. The use of the defense of justification has dangers, however; if the defendant libels the plaintiff and then runs the defense of truth and fails, he may be said to have aggravated the harm.

Another important aspect of defamation is the difference between fact and opinion. Statements made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. In order to win damages in a libel case, the plaintiff must first show that the statements were "statements of fact or mixed statements of opinion and fact" and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. If the statement cannot be proved true or false, the court may dismiss the libel case without it ever going to a jury to find facts in the case.

In some systems, however, notably the Philippines, truth alone is not a defense.[7] Some U.S. statutes preserve historical common law exceptions to the defense of truth to libel actions. These exceptions were for statements "tending to blacken the memory of one who is dead" or "expose the natural defects of one who is alive." [8]

It is also necessary in these cases to show that there is a well-founded public interest in the specific information being widely known, and this may be the case even for public figures. Public interest is generally not "that which the public is interested in," but rather that which is in the interest of the public.[9] [10]

See also: Substantial truth

Privilege and malice

Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted.

There are two types of privilege in the common law tradition:

  • "Absolute privilege" has the effect that a statement cannot be sued on as defamatory, even if it were made maliciously; a typical example is evidence given in court (although this may give rise to different claims, such as an action for malicious prosecution or perjury) or statements made in a session of the legislature (known as 'Parliamentary privilege' in Commonwealth countries).
  • "Qualified privilege" may be available to the journalist as a defense in circumstances where it is considered important that the facts be known in the public interest; an example would be public meetings, local government documents, and information relating to public bodies such as the police and fire departments. Qualified privilege has the same effect as absolute privilege, but does not protect statements that can be proven to have been made with malicious intent.

Other defenses

Defenses to claims of defamation include:

  • Truth is an absolute defense in the United States as well as in the common law jurisdictions of Canada. In some other countries it is also necessary to show a benefit to the public good in having the information brought to light.
  • Statements made in a good faith and reasonable belief that they were true are generally treated the same as true statements; however, the court may inquire into the reasonableness of the belief. The degree of care expected will vary with the nature of the defendant: an ordinary person might safely rely on a single newspaper report, while the newspaper would be expected to carefully check multiple sources.
  • Privilege is a defense when witness testimony, attorneys' arguments, and judges' decisions, rulings, and statements made in court, or statements by legislators on the floor of the legislature, or statements made by a person to their spouse, are the cause for the claim. These statements are said to be privileged and cannot be cause for a defamation claim.
  • Opinion is a defense recognized in nearly every jurisdiction. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.
  • Fair comment on a matter of public interest, statements made with an honest belief in their truth on a matter of public interest (official acts) are defenses to a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected.
  • Consent is an uncommon defense and makes the claim that the claimant consented to the dissemination of the statement.
  • Innocent dissemination is a defense available when a defendant had no actual knowledge of the defamatory statement or no reason to believe the statement was defamatory. The defense can be defeated if the lack of knowledge was due to negligence. Thus, a delivery service cannot be held liable for delivering a sealed defamatory letter.
  • Claimant is incapable of further defamation–e.g., the claimant's position in the community is so poor that defamation could not do further damage to the plaintiff. Such a claimant could be said to be "libel-proof," since in most jurisdictions, actual damage is an essential element for a libel claim.

In addition to the above, the defendant may claim that the allegedly defamatory statement is not actually capable of being defamatory—an insulting statement that does not actually harm someone's reputation is prima facie not libelous.

Special rules apply in the case of statements made in the press concerning public figures. A series of court rulings led by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) established that for a public official (or other legitimate public figure) to win a libel case, the statement must have been published knowing it to be false or with reckless disregard to its truth, (also known as actual malice).

Under United States law, libel generally requires five key elements. The plaintiff must prove that the information was published, the plaintiff was directly or indirectly identified, the remarks were defamatory towards the plaintiff's reputation, the published information is false, and that the defendant is at fault.

The Associated Press estimates that 95% of libel cases involving news stories do not arise from high-profile news stories, but "run of the mill" local stories like news coverage of local criminal investigations or trials, or business profiles. Media liability insurance is available to newspapers to cover potential damage awards from libel lawsuits.

Defamation and freedom of speech

Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits, or loss of reputation where individuals have no effective protection against reckless or unfounded allegations. Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech which are necessary for the protection of the reputation or the rights of others[11].

Jurisdictions resolve this tension in different ways, in particular in determining where the burden of proof lies when unfounded allegations are made. The power of the internet to disseminate comment, which may include malicious comment, has brought a new focus to the issue. [12]

There is a broader consensus against laws which criminalize defamation. Human rights organizations, and other organizations such as the Council of Europe and Organization for Security and Co-operation in Europe, have campaigned against strict defamation laws which criminalize defamation.[13][14] The European Court of Human Rights has placed restrictions on criminal libel laws because of the freedom of expression provisions of the European Convention on Human Rights. One notable case was Lingens v. Austria (1986).

Defamation laws by jurisdiction

Europe

England

Main article: English defamation law

Modern libel and slander laws as implemented in many but not all Commonwealth nations, in the United States, and in the Republic of Ireland, are originally descended from English defamation law. The history of defamation law in England is somewhat obscure. Civil actions for damages seem to have been relatively frequent so far back as the reign of Edward I (1272–1307),[citation needed] though it is unknown whether any generally applicable criminal process was in use. The first fully-reported case in which libel is affirmed generally to be punishable at common law was tried during the reign of James I.[citation needed] From that time we find both the criminal and civil remedies in full operation.

English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual or individuals in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. Allowable defenses are justification (the truth of the statement), fair comment (whether statement was a view that a reasonable person could have held), and privilege (whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest). An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not using due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.

Scotland

In Scots law, as in other jurisdictions which base themselves on the civil law tradition, there is no distinction between libel and slander, and all cases are simply defamation. The equivalent of the defence of justification is "veritas".

Germany

In German law, there is no distinction between libel and slander. Germany is a leader in Europe in enforcement of its defamation law,[citation needed], and lawsuits are increasing.[15] The relevant sections of Germany's law are §90 (Denigration of the President of State), §90a (Denigration of the State and its Symbols), §90b (Unconstitutional denigration of the Organs of the Constitution), §185 ("insult"), §186 (Defamation of character), §187 (Defamation with deliberate untruths), §188 (Political defamation with increased penalties for offending against paras 186 and 187), §189 (Denigration of a deceased person), §190 (Defamation by means of a non-proven criminal conviction), §192 ("insult" with true statements), §193 (Claim to defamation by rightful interests), §194 (The Application for a criminal prosecution under these paragraphs), §199 (Cases of exchange of verbal abuse), and §200 (Method of proclamation). Paragraph 188 has been criticized for allowing certain public figures additional protection against criticism.

United States

Main article: United States defamation law

The origins of US defamation law pre-date the American Revolution; one famous 1734 case involving John Peter Zenger established some precedent that the truth should be an absolute defense against libel charges. (Previous English defamation law had not provided this guarantee.) Though the First Amendment of the U.S. Constitution was designed to protect freedom of the press, for most of the history of the United States, the Supreme Court neglected to use it to rule on libel cases. This left libel laws, based upon the traditional common law of defamation inherited from the English legal system, mixed across the states. The 1964 case New York Times Co. v. Sullivan, however, dramatically changed the nature of libel law in the United States by establishing that public officials could win a suit for libel only if they could demonstrate publishers' "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not". Later Supreme Court cases dismissed the claim for libel and forbade libel claims for statements that are so ridiculous to be clearly not true, or are involving opinionated subjects such as one's physical state of being. Recent cases have addressed defamation law and the internet.

Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries, due to the enforcement of the First Amendment. In the United States, a comprehensive discussion of what is and is not libel or slander is difficult, because the definition differs between different states, and under federal law. Some states codify what constitutes slander and libel together into the same set of laws. Criminal libel is rare or nonexistent, depending on the state. Defenses to libel that can result in dismissal before trial include the statement being one of opinion rather than fact or being "fair comment and criticism". Truth is always a defense.

Most states recognize that some categories of statements are considered to be defamatory per se, such that people making a defamation claim for these statements do not need to prove that the statement was defamatory.

Singapore

Singapore has perhaps the world's strongest libel laws. The country's leaders have clearly indicated to the public that libel, as they choose to define it from time to time, on the Internet will not be tolerated and that those they deem responsible will be severely punished. On March 6, 1996, the government made providers and publishers liable for the content placed on the Internet. Even the owners of cybercafes may be held liable for libelous statements posted or possibly viewed in their establishments.[16]

In 2001, a Singapore bank was fined SG$2 million (approx. 1 million euros or 1 million US$ at the time) for accidentally publishing a mildly libelous statement during the heated discussion of a takeover bid. The mistake was corrected very quickly, and there was no intent to do harm. In fact, it was reported that no harm seems to have been done. Nevertheless, the offended parties were awarded SG$1 million each. Apparently confirming the stringency of Singapore’s defamation law, Business Times declined to report on the matter because one of the libeled parties objected.[17]

Australia

Australian law tends to follow English law on defamation issues, although there are differences introduced by statute and by an implied constitutional limitation on governmental powers to limit speech of a political nature. As with England, Australia defines slander as communicating false or insulting words about someone directly or indirectly, verbally or through script.

A recent judgment of the High Court of Australia has significant consequences on interpretation of the law. On 10 December 2002, the High Court of Australia handed down its judgment in the Internet defamation dispute in the case of Gutnick v Dow Jones. The judgment, which established that Internet-published foreign publications that defamed an Australian in his or her Australian reputation could be held accountable under Australian libel law, has gained worldwide attention and is often (although inaccurately, see for example Berezovsky v Forbes in England[18]) said to be the first of its kind; the case was subsequently settled.

Slander has been occasionally used to justify (and with some success) physical reaction, however usually the punishment for assault is only slightly reduced when there is evidence of provocation.

Among the various common law jurisdictions, some Americans have presented a visceral and vocal reaction to the Gutnick decision.[19] On the other hand, the decision mirrors similar decisions in many other jurisdictions such as England, Scotland, France, Canada and Italy.

Controversial uniform legislation was passed in Australia in 2005 severely restricting the right of corporations to sue for defamation (see, eg, Defamation Act 2005 (Vic), s 9). The only corporations excluded from the general ban are those not for profit or those with less than 10 employees and not affiliated with another company.

Canada

Main article: Canadian defamation law

As is the case for most Commonwealth jurisdictions, Canada follows English law on defamation issues (although the law in the province of Quebec has roots in both the English and the French tradition). At common law, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public.[20] Probably true statements are not excluded, nor are political opinions. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame. In Hill v. Church of Scientology of Toronto (1995), the Supreme Court of Canada rejected the actual malice test adopted in the US case New York Times Co. v. Sullivan. Once a claim has been made, the defendant may avail him or herself to a defense of justification (the truth), fair comment, or privilege. Publishers of defamatory comments may also use the defense of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.

In Quebec, defamation was originally grounded in the law inherited from France. To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Defamation in Quebec is governed by a reasonableness standard, as opposed to strict liability; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true.[21]

Religious law

Main articles: Lashon hara and Detraction

Related torts

Some jurisdictions have a separate tort or delict of "verbal injury," "intentional infliction of emotional distress," or "convicium," involving the making of a statement, even if truthful, intended to harm the claimant out of malice; some have a separate tort or delict of "invasion of privacy" in which the making of a true statement may give rise to liability: but neither of these comes under the general heading of "defamation". Some jurisdictions also have the tort of "false light", in which a statement may be technically true, but so misleading as to be defamatory. There is also, in almost all jurisdictions, a tort or delict of "misrepresentation", involving the making of a statement which is untrue even though not defamatory; thus if a surveyor states that a house is free from the risk of flooding, he or she has not defamed anyone, but may still be liable to someone who purchases the house in reliance on this statement. Other increasingly common claims similar to defamation in U.S. law are claims that a famous trademark has been diluted through tarnishment, see generally trademark dilution, "intentional interference with contract," and "negligent misrepresentation."

Criminal laws prohibiting protests at funerals, sedition, false statements in connection with elections, and the use of profanity in public, are also often used in contexts similar to criminal libel actions.

The boundaries of a court's power to hold individuals in "contempt of court" for what amounts to alleged defamatory statements about judges or the court process by attorneys or other people involved in court cases is also not well established in many common law countries.

References

  1. ^ Common Law Privacy Torts
  2. ^ Invasion of Privacy [1]
  3. ^ a b FALSE LIGHT by Professor Edward C. Martin - Cumberland School of Law, Samford University
  4. ^ from Latin : libellus ("little book") (Webster's 1828 Dictionary, Electronic Version. Christian Technologies, Inc. (1828). Retrieved on 2006-12-31.
  5. ^ Online Etymology Dictionary. Retrieved on 2006-12-31.)
  6. ^ 50 Am.Jur.2d libel and slander 1-546
  7. ^ Republic of the Philippines. The Revised Penal Code. Chan Robles law Firm. Retrieved on 2006-11-24. “Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”
  8. ^ See, for example, Section 18-13-105, Colorado Revised Statutes
  9. ^ Legal dictionary. findlaw.com. Retrieved on 2006-11-24.
  10. ^ Legal Terms. legal.org. Retrieved on 2004-10-22.
  11. ^ Article 10 of the European Convention on Human Rights
  12. ^ BBC News, reporting the comments of Professor Michael Geist, July 31, 2006
  13. ^ IRIS 2006-10:2/1: Ilia Dohel, Office of the OSCE Representative on Freedom of the Media. Representative on Freedom of the Media: Report on Achievements in the Decriminalization of Defamation
  14. ^ PACE Resolution 1577 (2007): Towards decriminalisation of defamation
  15. ^ Bundeskriminalamt ( Federal Police) Yearly Statistics 2006 http://www.bka.de/pks/pks2006/download/pks-jb_2006_bka.pdf
  16. ^ Libel On The Internet: An International Problem
  17. ^ The recent spat by the DBS bank is proof that the libel law in Singapore needs to be reformed
  18. ^ House of Lords - Berezovsky v. Michaels and Others Glouchkov v. Michaels and Others (Consolidated Appeals)
  19. ^ Letter From the Editor - Barron's Online
  20. ^ Murphy v. LaMarsh (1970), 73 W.W.R. 114
  21. ^ Société Radio-Canada c. Radio Sept-Îles inc., [1994] R.J.Q. 1811 <http://www.canlii.org/fr/qc/qcca/doc/1994/1994canlii5883/1994canlii5883.html>

Defamation Cases

(From R. H. Helmholz, ed. Select Cases on Defamation to 1600. Selden Society Publications. vol. 101. 1985.)

Defamation. Vernycome v. Fawell.

(Common Pleas 40/1024, m. 352. Easter term 1519.)

Devon. Thomas Fawell, late of Broad Clyst in the aforesaid county was attached to answer Nicholas Vernycome in a plea why, although he...[writ om.] the same Nicholas is a free man and has been of free condition from the time of his birth, the aforesaid Thomas, not ignorant of the foregoing, scheming without right to injure the said Nicholas, and utterly to destroy and undo the selfsame Nicholas, on the twenty-fourth day of October in the tenth year of the reign of the present lord king did falsely impute, speak, and utter against the same Nicholas the name and fame of servile condition, namely `bond-churl', that is, villein by blood. By which the same Nicholas has been gravely injured, weakened and made the worse in his name, fame, and in the dealings to which before then he was accustomed with honest persons in buying, selling and lawfully bargaining; to the damage of the same Nicholas L20; whereby he says that he is the worse and has damage to the value of L25. And thereof he produces suit etc.

And the aforesaid Thomas by Bartholomew Prouz his attorney comes and denies force and wrong when etc. And he says that the aforesaid Nicholas should not have his action aforesaid against him therein because he says that at that time when etc. the aforesaid Nicholas was a villein of a certain Lewis Pollard, knight, Peter Caslegh, S.T.D., John Gilbert, esquire, and of John Bodley, regardant to their manor of Broad Clyst in the county aforesaid, and that the same Lewis, Peter, John and John and all their predecessors as lords of the aforesaid manor and all those who [held] the estate in the same manor which the same Lewis, Peter, John and John now hold, are and were seised of the aforesaid Nicholas and of all his predecessors as of their villeins regardant to the aforesaid manor from time out of mind, by which the aforesaid Thomas at that time when etc. said and uttered that the aforesaid Nicholas was a neif of the aforesaid Lewis, Peter, John and John, regardant to the aforesaid manor in the form aforesaid, as he was well entitled to. And this he is ready to verify; wherefore he prays judgment whether the aforesaid Nicholas should have or maintain his action aforesaid therein against him etc.

And the aforesaid Nicholas says that he should not be barred from having his aforesaid action against the selfsame Thomas by anything alleged above because he says that he is [now] and at the same time when etc. was a free man and of free condition and not the villein of the aforesaid Lewis, Peter, John and John regardant to their manor aforesaid in the form that the aforesaid Thomas has alleged above. And he prays that this may be inquired into by the country; and the aforesaid Thomas likewise etc. Therefore the sheriff is commanded to cause to come here on the morrow of the Ascension twelve etc. by whom etc., and who neither etc., to make recognition etc., because both etc. At which day the parties come here etc. And the sheriff has not sent the writ. Therefore as before the sheriff is commanded to come here in the octaves of Holy Trinity twelve etc. to make recognition in the form aforesaid etc. From which day the aforesaid jury between the parties aforesaid in the aforesaid plea was put in respite here until that day, namely in the octaves of St Michael then next following unless the justices of the lord king assigned to take the assizes in the aforesaid county by form of the statute etc. should have come beforehand to Exeter in the county aforesaid on the Thursday next following the feast of St James the Apostle just past. And now here on that day comes the aforesaid Nicholas by his attorney aforesaid. And the aforesaid justices of assize before whom etc. have sent their record in these words;

Afterwards at the day and place stated within, before Richard Elyot, knight, and Thomas Pygot, justices of the lord king assigned to take the assizes in the aforesaid county by form of the statute etc. the within-named Nicholas Vernicome comes in person. And the within-mentioned Thomas Fawell although solemnly called does not come but makes default. Therefore let the oath of the within-recorded jury be taken against him by default. The jurors, being called, come; who being chosen, tried and sworn to tell the truth concerning the matters stated within, say on their oath that the aforesaid Nicholas is, and at the time of the within-recorded utterance was, a free man and of free condition and not the villein of the within-recorded Lewis Pollard, knight, Peter Caslegh, John Gilbert and John Bodley regardant to the within-recorded manor as the aforesaid Thomas Fawell alleges against him within. And they assess the damages of the aforesaid Nicholas by reason of the false imputation and the utterance of the fame of servile condition, beyond the charges and costs laid out relating to his suit in this matter, at L10, and for those charges and costs 66s. 8d.

Therefore it is determined that the aforesaid Nicholas should recover against the aforesaid Thomas his damages aforesaid assessed by the aforesaid jurors in the form aforesaid. And the aforesaid Thomas in mercy etc.

Defamation (sorcery). Netlingham v. Ode.

(King's Bench 27/1266, m.770. Trinity term 1578. )

Surrey. Be it remembered that at another time, namely last Easter term, before the lady the queen at Westminster, came William Netlingham by John Coxe his attorney and brought here in the court of the said lady the queen, then and there, a certain bill of his against Ralph Ode in custody of the marshal etc. in a plea of trespass on the case. And there are pledges for prosecuting, namely John Doo and Richard Roo. Which bill follows in these words:

Surrey. William Netlingham complains of Ralph Ode in custody of the marshal of the Marshalsea of the lady the queen, being before the queen herself, in that although the aforesaid William is a good, true, faithful and honest liegeman and subject of the lady the present queen, and is of good name, fame, conversation and condition, and has been held, spoken of, named, reputed and taken [to be] of such estate and bearing both among many magnates and all other subjects and liegemen as well of the said lady the present queen as of her progenitors the past kings of England from the time of his birth to the present, and has remained and continued unspotted and untainted by any stain of theft, felony, sorcery, falsity or whatsoever other magic or noxious art for the entire time aforesaid, and has never used or undertaken and sorcery or magic art or ever fallen under any suspicion of any such crime, by reason of which the same William has led a peaceful, honest, and praiseworthy life to his own great comfort; nevertheless the aforesaid Ralph, not ignorant of the foregoing, inflamed by malice and envy and stirred up by diabolical inspiration, scheming unjustly and without cause entirely to cut off, impair and denigrate the name, estate and fame of the same William, with which he had previously been imbued, and to cause the same William to be proclaimed and to fall into the reproach, contempt and vituperation of all liegemen of the said lady the present queen, so that all faithful subjects of the said lady the present queen would entirely withdraw from the company of the selfsame William, on the first day of April in the twentieth year of the reign of the said lady the present queen, at Camberwell in the county aforesaid, in the presence and hearing of divers faithful subjects of the said lady the present queen, then and there jpresent, did speak, assert and publish these false, slanderous Englist words following of the said William Netlingham, namely, `If there ever were any witch, thou (speaking to the aforesaid William the present plaintiff) art one.' And the aforesaid William says that there were many sorcerers, called witches, within this realm of England, and that the aforesaid art or sorcery, called witchcraft, is a monstrous transgression and offence against the word of God and the laws and statutes of this realm of England, and also that all those who practise the same art, called witchcraft, offend not only against the word of God and the laws and statutes of this realm of England aforesaid, but also are punished in various ways by the laws of this realm of England. By reason of the utterance and recitation of which words not only is the aforesaid William Nitlingham grievously injured and harmed in his good estate and name, in his dealings to which he was accustomed, and in the company which he had with honest persons and subjects of the said lady the present queen, but also the same William has been compelled and coerced to lay out and spend divers sums of money for clearing himself in this matter; whereof he says that he is the worse and has damage to the value of L100. And therein he produces suit.

And now, at this day, namely Friday next after the morrow of Holy Trinity this same term, until which day the aforesaid Ralph Ode had leave to imparl to the aforesaid bill and then to answer etc., before the lady the queen at Westminster come both the aforesaid William by his attorney aforesaid and the aforesaid Ralph Ode by Thomas Lane his attorney. And the same Ralph denies force and wrong when etc. And he says that the aforesaid William should not have or maintain his action aforesaid therein against him, because he says that at the aforesaid time when the utterance and speaking of the aforesaid English words specified in the aforesaid bill is supposed, he spoke and uttered these words following to the said William, namely, `I (meaning the same Ralph) will not say that thou (meaning the aforesaid William) art a witch, but if there is any witch on earth, as some say there are, I think in my conscience that thou art one;' without this, that he, the same Ralph, did speak of the said William the aforesaid English words specified in the aforesaid declaration, namely, `If there ever were any witch, thou (speaking to the aforesaid William the present plaintiff) art one,' in the manner and form that the aforesaid William complains against him above. And this he is ready to verify; wherefore he prays judgment whether the aforesaid William should have or maintain his action aforesaid against him therein etc.

And the aforesaid William Netlingham says that he should not be barred from having his action aforesaid against the selfsame Ralph by anything alleged above in plea by the aforesaid Ralph Ode, because, as before, he says that the same Ralph spoke the aforesaid English words of the said William Netlingham specified above in the aforesaid declaration, namely, `If there were ever any witch, thou (speaking to the aforesaid William the present plaintiff) art one,' in the manner and form that the aforesaid William Netlingham complains against him above. And he prays that this may be inquired by the country. And the aforesaid Ralph Ode likewise etc. Therefore let a jury therein come before the lady the queen at Westminster the Saturday next after the quindene of Holy Trinity; and who neither etc., to make recognition etc., because both etc. The same day is given to the parties aforesaid there etc., ...[common adjournments om.].

Afterwards, at the day and place mentioned within, before John Southcote, one of the justices of the lady the queen assigned to hold pleas before the lady the queen herself, and Thomas Gawdy, another justice of the said lady the queen assigned to hold pleas before the lady the queen herself, justices assigned to take the assizes in the county of Surrey by form of the statute etc., come both the within-named William Netlingham by his attorney and the within-mentioned Ralph Ode by his attorney. And the jurors of the jury of which mention is made within, being called, some of them. namely John Allen and Robert Hiller, come and are sworn on that jury. And because the rest of the jurors of that jury do not appear, therefore others from the bystanders, being chosen by the sheriff at the request of the said William and by command of the aforesaid justices, are newly selected, whose names are attached to the within-recorded panel according to the form of the statute made and provided for such cases; and certain jurors [who] are newly appointed, namely Thomas Goone, James Goulston, Milo Hooker, Geoffrey Payce, Alan Colcook, Richard Mannsfield, William Bristowe, Richard Cuddington, John Repley and Thomas Stone come, who being chosen, tried and sworn to tell the truth about the matter within together with the aforesaid jurors previously impanelled and sworn, they say on their oath that the within-recorded Ralph did speak the within-recorded false slanderous words specified in the declaration within of the said William Netlingham, namely, `If there were ever any witch, thou (speaking to the aforesaid William Netlingham) art one,' in the manner and form that the aforesaid WIlliam Netlingham has alleged in replication within. And they assess the damages of the selfsame William, by reason of the within-recorded matter, beyond the charges and costs laid out by him relating to his suit in this matter, at L6, and for those charges and costs 5s.

Therefore it is determined that the aforesaid William Netlingham should recover his damages against the said Ralph Ode assessed by the aforesaid jurors in the form aforesaid, and also L5 for his charges and costs awarded with his assent by the court of the lady the queen here in addition; which damages in all amount to L11 5s. And the aforesaid Ralph Ode in mercy.

Damages L11 5s.

House of Lords


The House of Lords is the second house of the Parliament of the United Kingdom and is also commonly referred to as "the Lords". The Parliament comprises the Sovereign, the House of Commons (which is the lower house of Parliament and referred to as "the Commons"), and the Lords. In Parliament the 738 members of the House of Lords currently outnumber the members of the 646 seat House of Commons.

The full, formal style of the House of Lords is The Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled. The formal style of individual members of the House of Lords is The Right Honourable the Lord X (of Y). Lords who are Privy Counsellors place "PC" after their title: all Privy Counsellors are in any case entitled to the epithet The Right Honourable.

Contents

[hide]

History

Parliament developed from the council that advised the King during medieval times. This royal council came to be composed of ecclesiastics, noblemen, and representatives of the counties (afterwards, representatives of the boroughs as well). The first Parliament is often considered to be the "Model Parliament" (held in 1295), which included archbishops, bishops, abbots, earls, barons, and representatives of the shires and boroughs. The power of Parliament grew slowly, fluctuating as the strength of the monarchy grew or declined. For example, during much of the reign of Edward II (1307–1327), the nobility was supreme, the Crown weak, and the shire and borough representatives entirely powerless. In 1322, the authority of Parliament was for the first time recognised not simply by custom or royal charter, but by an authoritative statute, passed by Parliament itself. Further developments occurred during the reign of Edward II's successor, Edward III. Most importantly, it was during this King's reign that Parliament clearly separated into two distinct chambers: the House of Commons (consisting of the shire and borough representatives) and the House of Lords (consisting of the senior clergy and the nobility). The authority of Parliament continued to grow, and, during the early fifteenth century, both Houses exercised powers to an extent not seen before. The Lords were far more powerful than the Commons because of the great influence of the aristocrats and prelates of the realm.

The power of the nobility suffered a decline during the civil wars of the late fifteenth century, known as the Wars of the Roses. Much of the nobility was killed on the battlefield or executed for participation in the war, and many aristocratic estates were lost to the Crown. Moreover, feudalism was dying, and the feudal armies controlled by the barons became obsolete. Hence, the Crown easily re-established its absolute supremacy in the realm. The domination of the Sovereign continued to grow during the reigns of the Tudor monarchs in the 16th century. The Crown was at the height of its power during the reign of Henry VIII (1509-1547).

The House of Lords remained more powerful than the House of Commons, but the Lower House did continue to grow in influence, reaching a zenith in relation to the House of Lords during the middle 17th century. Conflicts between the King and the Parliament (for the most part, the House of Commons) ultimately led to the English Civil War during the 1640s. In 1649, after the defeat and execution of King Charles I, a republic (the Commonwealth of England) was declared, but the nation was effectively under the overall control of Oliver Cromwell, Lord Protector of England. The House of Lords was reduced to a largely powerless body, with Cromwell and his supporters in the Commons dominating the Government. On 19 March 1649, the House of Lords was abolished by an Act of Parliament, which declared that "The Commons of England [find] by too long experience that the House of Lords is useless and dangerous to the people of England." The House of Lords did not assemble again until the Convention Parliament met in 1660 and the monarchy was restored. It returned to its former position as the more powerful chamber of Parliament—a position it would occupy until the 19th century.

An important vote: the House of Lords voting for the 1911 Parliament Act. From the Drawing by S. Begg

The 19th century was marked by several changes to the House of Lords. The House, once a body of only about 50 members, had been greatly enlarged by the liberality of George III and his successors in creating peerages. The individual influence of a Lord of Parliament was thus diminished. Moreover, the power of the House as a whole experienced a decrease, whilst that of the House of Commons grew. Particularly notable in the development of the Lower House's superiority was the Reform Bill of 1832. The electoral system of the House of Commons was not, at the time, democratic: property qualifications greatly restricted the size of the electorate, and the boundaries of many constituencies had not been changed for centuries. Entire cities such as Manchester were not represented by a single individual in the House of Commons, but the 11 voters of Old Sarum retained their ancient right to elect two Members of Parliament. A small borough was susceptible to bribery, and was often under the control of a patron, whose nominee was guaranteed to win an election. Some aristocrats were patrons of numerous "pocket boroughs", and therefore controlled a considerable part of the membership of the House of Commons.

When, in 1831, the House of Commons passed a Reform Bill to correct some of these anomalies, the House of Lords rejected the proposal. The popular cause of reform, however, was not abandoned by the ministry, despite a second rejection of the bill in the Lords in 1832. The Prime Minister, Earl Grey, then advised the King to overwhelm the opposition to the bill in the House of Lords by creating about 80 new pro-Reform peers. William IV originally balked at the proposal, which effectively threatened the opposition of the House of Lords, but at length relented. Before the new peers were created, however, the Lords who opposed the bill admitted defeat, and abstained from the vote, allowing the passage of the bill. The crisis damaged the political influence of the House of Lords, but did not altogether end it. Over the course of the century, however, the power of the Upper House experienced further erosion, and the Commons gradually became the stronger House of Parliament.

The rejection of the People's Budget, proposed by David Lloyd George (above), precipitated a political crisis in 1909.

The status of the House of Lords returned to the forefront of debate after the election of a Liberal Government in 1906. In 1909, the Chancellor of the Exchequer, David Lloyd George, introduced into the House of Commons the "People's Budget", which proposed a land tax targeting wealthy landowners. The popular measure, however, was defeated in the heavily Conservative House of Lords. Having made the powers of the House of Lords a primary campaign issue, the Liberals were narrowly re-elected in January 1910. Asquith then proposed that the powers of the House of Lords be severely curtailed. After a general election in December 1910, the Asquith Government secured the passage of a bill to curtail the powers of the House of Lords. The Parliament Act 1911 effectively abolished the power of the House of Lords to reject legislation, or to amend in a way unacceptable to the House of Commons: most bills could be delayed for no more than three parliamentary sessions or two calendar years. It was not meant to be a permanent solution; more comprehensive reforms were planned. Neither party, however, pursued the matter with much enthusiasm, and the House of Lords remained primarily hereditary. In 1949, the Parliament Act reduced the delaying power of the House of Lords further to two sessions or one year.

In 1958, the predominantly hereditary nature of the House of Lords was changed by the Life Peerages Act 1958, which authorised the creation of life baronies, with no numerical limits. The number of Life Peers then gradually increased, though not at a constant rate.

The Labour Party had for most of the twentieth century a class-war commitment to abolish the House of Lords or at least expel the hereditary element. In 1968, the Labour Government of Harold Wilson attempted to reform the House of Lords by introducing a system under which hereditary peers would be allowed to remain in the House and take part in debate, but would be unable to vote. This plan, however, was defeated in the House of Commons by a coalition of traditionalist Conservatives (such as Enoch Powell), and Labour members who continued to advocate the outright abolition of the Upper House (such as Michael Foot). When Michael Foot attained the leadership of the Labour Party, abolition of the House of Lords became a part of the party's agenda; under Neil Kinnock, however, a reformed Upper House was proposed instead. In the meantime, the creation of hereditary peerages (except for members of the Royal Family) has been arrested, with the exception of three creations during the administration of the Conservative Margaret Thatcher in the 1980s.

Whilst some hereditary peers were at best apathetic the Labour Party's clear commitments were not lost on Baron Sudeley who for decades had been considered an expert on the House of Lords. In December 1979 the Conservative Monday Club published his extensive paper entitled Lords Reform - Why tamper with the House of Lords? and in July 1980 The Monarchist (no. 57, p.27 - 34) carried another article by Lord Sudeley entitled Why Reform or Abolish the House of Lords?. In 1990 he authored a further booklet for The Monday Club entitled The Preservation of the House of Lords.

The Labour Party included in its 1997 General Election Manifesto a commitment to remove the hereditary peerage from the House of Lords. Their subsequent election victory in 1997 under Tony Blair finally heralded the demise of the traditional House of Lords. The Labour Government introduced legislation to expel all hereditary peers from the Upper House as a first step in Lords reform. As a part of a compromise, however, it agreed to permit 92 hereditary peers to remain until the reforms were complete. Thus all but 92 hereditary peers were expelled under the House of Lords Act 1999 (see below for its provisions), making the House of Lords predominantly an appointed house.

Since 1999 however, no further reform has taken place (see Lords Reform). The Wakeham Commission proposed introducing a 20% elected element to the Lords, but this plan was widely criticised. A Joint Committee was established in 2001 to resolve the issue, but it reached no conclusion and instead gave Parliament seven options to choose from (fully appointed, 20% elected, 40% elected, 50% elected, 60% elected, 80%, and fully elected). In a confusing series of votes in February 2003, all of these options were defeated although the 80% elected option fell by just three votes in the Commons. Socialist MPs favouring outright abolition voted against all the options.

In 2005 a cross-party group of senior MPs (Ken Clarke, Paul Tyler, Tony Wright, Sir George Young and the late Robin Cook) published a report proposing that 70% of members of the House of Lords should be elected - each member for a single long term - by the single transferable vote system. Most of the remainder were to be appointed by a Commission to ensure a mix of "skills, knowledge and experience". This proposal was also not implemented. A cross-party campaign initiative called "Elect the Lords" was set up to make the case for a predominantly elected Second Chamber in the run up to the 2005 general election.

At the 2005 election, the Labour Party proposed further reform of the Lords, but without specific details. The Conservative Party, which had, prior to 1997, opposed any tampering with the House of Lords, favoured an 80% elected Second Chamber, while the Liberal Democrats called for a fully elected Senate. During 2006, a cross-party committee discussed Lords reform, with the aim of reaching a consensus: its findings were published in early 2007.

On 7 March 2007, Members of the House of Commons voted ten times on a variety of alternative compositions for the upper chamber. Outright abolition, a wholly appointed house, a 20% elected house, a 40% elected house, a 50% elected house and a 60% elected house were all defeated in turn. Finally the vote for an 80% elected chamber was won by 305 votes to 267, and the vote for a wholly elected chamber was won by an even greater margin: 337 to 224. Significantly this last vote represented an overall majority of MPs, giving it huge political authority. Furthermore, examination of the names of MPs voting at each division shows that, of the 305 who voted for the 80% elected option, 211 went on to vote for the 100% elected option. Given that this vote took place after the vote on 80% – whose result was already known when the vote on 100% took place – this shows a clear preference for a fully elected upper house among those who voted for the only other option that passed. But this was nevertheless only an indicative vote and many political and legislative hurdles remained to be overcome for supporters of an elected second chamber. The House of Lords, soon after, rejected this proposal and voted for an entirely appointed House of Lords.

Lords Spiritual


Main article: Lords Spiritual

Members of the House of Lords who sit by virtue of their ecclesiastical offices are known as Lords Spiritual. Formerly, the Lords Spiritual were the majority in the House of Lords, including the Church of England's archbishops, diocesan bishops, abbots, and priors. After 1539, however, only the archbishops and bishops continued to attend, for the Dissolution of the Monasteries suppressed the positions of abbot and prior. In 1642, during the English Civil War, the Lords Spiritual were excluded altogether, but they returned under the Clergy Act 1661. The number of Lords Spiritual was further restricted by the Bishopric of Manchester Act 1847, and by later acts. Now, there can be no more than 26 Lords Spiritual, always including the five most ancient dioceses of the Church: the Archbishop of Canterbury, the Archbishop of York, the Bishop of London, the Bishop of Durham, and the Bishop of Winchester. Membership of the House of Lords also extends to the 21 longest-serving other diocesan bishops of the Church of England.

The Church of Scotland is not represented by any Lords Spiritual; being a Presbyterian institution, it has no archbishops or bishops. The Church of Ireland did obtain representation in the House of Lords after the union of Ireland and Great Britain in 1801. Of the Church of Ireland's ecclesiastics, four (one archbishop and three bishops) were to sit at any one time, with the members rotating at the end of every parliamentary session (which normally lasted approximately one year). The Church of Ireland, however, was disestablished in 1871, and ceased to be represented by Lords Spiritual. The same is true for the Church in Wales which was disestablished in 1920. The current Lords Spiritual, therefore, represent only the Church of England.

Other ecclesiastics have sat in the House of Lords in recent times: Immanuel Jakobovits, was appointed to the House of Lords with the consent of the Queen, who acted on the advice of Prime Minister Margaret Thatcher while he was Chief Rabbi. In recognition of his work at reconciliation and in the Peace Process, the Archbishop of Armagh (the senior Anglican bishop in Northern Ireland), Lord Eames was appointed to the Lords by John Major. Other clergymen appointed include Reverend Donald Soper, Reverend Timothy Beaumont, and some Scottish clerics. There have been no Roman Catholic clergymen appointed, though it was rumoured that Cardinal Basil Hume was offered a peerage, but refused, and accepted instead the Order of Merit, a personal appointment of the Queen, shortly before his death. Roman Catholics who have received Holy Orders are forbidden by Canon Law from holding offices connected with the government of any state (aside from the Holy See) and so no Catholic cleric will likely ever sit in the House of Lords.

In practice, however, although the Free Churches have never been represented as of right in the Lords, some Methodist and other ministers sit as Lords Temporal. Other clerics such as the Chief Rabbi are also often elevated as Lords Temporal; and indeed the heads of various professions and learned societies, and notably the military, academic and legal professions, are customarily considered.

Lords Temporal

Since the Dissolution of the Monasteries, the Lords Temporal have been the most numerous group in the House of Lords. Unlike the Lords Spiritual, they may be publicly partisan. Publicly non-partisan Lords are called cross-benchers. Originally, the Lords Temporal included several hundred hereditary peers (that is, those whose peerages may be inherited), who ranked variously as dukes, marquesses, earls, viscounts, and barons (as well as Scottish Lords of Parliament). Such hereditary dignities can be created by the Crown, in modern times on the advice of the Prime Minister of the day.

In 1999, the Labour government brought forward the House of Lords Act expelling several hundred hereditary peers from the House. The Act provided a temporary measure that only 92 individuals may continue to sit in the Upper House by virtue of hereditary peerages. Two hereditary peers remain in the House of Lords because they hold hereditary offices connected with Parliament: the Earl Marshal and the Lord Great Chamberlain. Of the remaining 90 hereditary peers in the House of Lords, 15 are elected by the whole House. Seventy-five hereditary peers are chosen by fellow hereditary in the House of Lords, grouped by party. The number of peers to be chosen by a party reflects the proportion of hereditary peers that belongs to that party (see current composition below). When an elected hereditary peer dies, a by-election is held, with a variant of the Alternative Vote system being used. If the recently deceased hereditary peer was elected by the whole House, then so is his or her replacement; a hereditary peer elected by a specific party is replaced by a vote of elected hereditary peers belonging to that party (whether elected as part of that party group or by the whole house).

The Lords Temporal also include the Lords of Appeal in Ordinary, a group of individuals appointed to the House of Lords so that they may exercise its judicial functions. Lords of Appeal in Ordinary, more commonly known as Law Lords, were first appointed under the Appellate Jurisdiction Act 1876. They are selected by the Prime Minister, but are formally appointed by the Sovereign. A Lord of Appeal in Ordinary must retire at the age of 70, or, if his or her term is extended by the government, at the age of 75; after reaching such an age, the Law Lord cannot hear any further legal cases. The number of Lords of Appeal in Ordinary (excluding those who are no longer able to hear cases because of age restrictions) is limited to twelve, but may be changed by statutory instrument. Lords of Appeal in Ordinary traditionally do not participate in political debates, so as to maintain judicial independence. Lords of Appeal in Ordinary hold seats in the House of Lords for life, remaining members even after reaching the retirement age of 70 or 75. Former Lord Chancellors and holders of other high judicial office may also sit as Law Lords under the Appellate Jurisdiction Act, although in practice this right is infrequently exercised. After the coming into force of the Constitutional Reform Act 2005, the Lords of Appeal in Ordinary will become judges of the Supreme Court of the United Kingdom and will be barred from sitting or voting until they retire as judges.

The largest group of Lords Temporal, and indeed of the whole House, are life peers. Life peers with seats in the House of Lords rank only as barons or baronesses, and are created under the Life Peerages Act 1958. Like all other peers, life peers are created by the Sovereign, who acts on the advice of the Prime Minister. By convention, however, the Prime Minister allows leaders of other parties to select some life peers so as to maintain a political balance in the House of Lords. Moreover, some non-party life peers (the number being determined by the Prime Minister) are nominated by an independent House of Lords Appointments Commission. If an hereditary peer also holds a life peerage, he or she remains a member of the House of Lords without a need for an election. In 2000, the government announced it would set up an Independent Appointments Commission, under Lord Stevenson of Coddenham, to select fifteen so-called "People's Peers" for life peerages. However, when the choices were announced in April 2001, from a list of 3,000 applicants, the choices were treated with criticism in the media, as all were distinguished in their field, and none were "ordinary people" as some had originally hoped.

In many historical instances, some peers were not permitted to sit in the Upper House. When Scotland united with England to form Great Britain in 1707, it was provided that the Scottish hereditary peers would only be able to elect 16 representative peers to sit in the House of Lords; the term of a representative was to extend until the next general election. A similar provision was enacted in respect of Ireland when that kingdom merged with Great Britain in 1801; the Irish peers were allowed to elect 28 representatives, who were to retain office for life. Elections for Irish representatives ended in 1922, when most of Ireland became an independent state; elections for Scottish representatives ended with the passage of the Peerage Act 1963, under which all Scottish peers obtained seats in the Upper House.

Qualifications

Several different qualifications apply for membership of the House of Lords. No person may sit in the House of Lords if under the age of 21. Furthermore, only Commonwealth citizens and citizens of the Republic of Ireland may sit in the House of Lords. The nationality restrictions were previously more stringent: under the Act of Settlement 1701, and prior to the British Nationality Act 1948, only natural-born subjects were qualified.

Additionally, some bankruptcy-related restrictions apply to members of the Upper House. A person may not sit in the House of Lords if he or she is the subject of a Bankruptcy Restrictions Order (applicable in England and Wales only), or if he or she is adjudged bankrupt (in Northern Ireland), or if his or her estate is sequestered (in Scotland). A final restriction bars an individual convicted of high treason from sitting in the House of Lords until completing his or her full term of imprisonment. An exception applies, however, if the individual convicted of high treason receives a full pardon. Note that an individual serving a prison sentence for an offence other than high treason is not automatically disqualified.

Finally, some qualifications apply only in the case of the Lords of Appeal in Ordinary. No person may be created a Lord of Appeal in Ordinary unless he or she has either held "high judicial office" for two years, or has been a practicing barrister for fifteen years. The term "high judicial office" encompasses membership of the Court of Appeal of England and Wales, of the Inner House of the Court of Session (Scotland), or of the Court of Appeal in Northern Ireland. Women were excluded from the House of Lords until the Life Peerages Act, passed in 1958 to address the declining number of active members, facilitated the creation of peerages for life. Women were immediately eligible and four were among the first life peers appointed. However, hereditary peeresses, whose existence had long been a constitutional anomaly, continued to be excluded until the passage of the Peerage Act 1963. Since the passage of the House of Lords Act 1999, hereditary peeresses remain eligible for election to the Upper House; there are three among the 92 hereditary who continue to sit.

Officers

Traditionally the House of Lords did not elect its own speaker, unlike the House of Commons; rather, the ex officio presiding officer was the Lord Chancellor. With the passage of the Constitutional Reform Act 2005, the post of Lord Speaker was created, a position to which a peer is elected by the House and subsequently appointed by The Crown. The first Lord Speaker to be elected, on May 4, 2006, is Baroness Hayman, a former Labour peer. As the Speaker is expected to be an impartial presiding officer, Baroness Hayman has resigned from the Labour Party.

This reform of the post of Lord Chancellor was made due to the perceived constitutional anomalies inherent in the role. The Lord Chancellor was not only the Speaker of the House of Lords, but also a member of the Cabinet; his or her department, formerly the Lord Chancellor's Department, is now called the Ministry of Justice. The Lord Chancellor is no longer the head of the judiciary of England and Wales. Hitherto, the Lord Chancellor was part of all three branches of government: the legislative, the executive, and the judicial. The overlap of the legislative and executive roles is a characteristic of the Westminster system, as the entire cabinet consists of members of the House of Commons or the House of Lords; however, in June 2003, the Blair Government announced its intention to abolish the post of Lord Chancellor because of the office's mixed executive and judicial responsibilities. The abolition of the office was rejected by the House of Lords, and the Constitutional Reform Act 2005 was thus amended to preserve the office of Lord Chancellor. The Act no longer guarantees that the office holder of Lord Chancellor is the presiding officer of the House of Lords, and therefore allows the House of Lords to elect a speaker of their own.

The Lord Chancellor wore black and gold robes whilst presiding over the House of Lords.

The Lord Speaker may be replaced as presiding officer by one of his or her deputies. The Chairman of Committees, the Principal Deputy Chairman of Committees, and several Deputy Chairmen of Committees are all deputies to the Lord Speaker, and are all appointed by the House of Lords itself. By custom, the Crown appoints each Chairman, Principal Deputy Chairman, or Deputy Chairman to the additional office of Deputy Speaker of the House of Lords. There was previously no legal requirement that the Lord Chancellor or a Deputy Speaker be a member of the House of Lords, though the same has long been customary; thus the Woolsack upon which the Lord Chancellor sat was notionally not in the House of Lords, although situated in the middle of it.

Whilst presiding over the House of Lords, the Lord Chancellor traditionally wore ceremonial black and gold robes. This is no longer a requirement for the Speaker except for State occasions outside of the chamber. The Speaker or Deputy Speaker sits on the Woolsack, a large red seat stuffed with wool, at the front of the Lords Chamber. When the House of Lords resolves itself into committee (see below), the Chairman or a Deputy Chairman presides, not from the Woolsack, but from a chair at the Table of the House. The presiding officer has little power compared to the Speaker of the House of Commons. He or she only acts as the mouthpiece of the House, performing duties such as announcing the results of votes. This is because, unlike in the House of Commons where all statements are directed to "Mr/Madam Speaker", in the House of Lords they are directed to "My Lords", i.e. the entire body of the House. The Lord Speaker or Deputy Speaker cannot determine which members may speak, or discipline members for violating the rules of the House; these measures may be taken only by the House itself. Unlike the politically neutral Speaker of the House of Commons, the Lord Chancellor and Deputy Speakers originally remained members of their respective parties, and may participate in debate, however this is no longer true of the new role of Lord Speaker.

Another officer of the body is the Leader of the House of Lords, a peer selected by the Prime Minister. The Leader of the House is responsible for steering Government bills through the House of Lords, and is a member of the Cabinet. The Leader also advises the House on proper procedure when necessary, but such advice is merely informal, rather than official and binding. A Deputy Leader is also appointed by the Prime Minister, and takes the place of an absent or unavailable Leader.

The Clerk of the Parliaments is the chief clerk and officer of the House of Lords (but is not a member of the House itself). The Clerk, who is appointed by the Crown, advises the presiding officer on the rules of the House, signs orders and official communications, endorses bills, and is the keeper of the official records of both Houses of Parliament. Moreover, the Clerk of the Parliaments is responsible for arranging by-elections of hereditary peers when necessary. The deputies of the Clerk of the Parliaments (the Clerk Assistant and the Reading Clerk) are appointed by the Lord Speaker, subject to the House's approval.

The Gentleman Usher of the Black Rod is also an officer of the House; he takes his title from the symbol of his office, a black rod. Black Rod (as the Gentleman Usher is normally known) is responsible for ceremonial arrangements, is in charge of the House's doorkeepers, and may (upon the order of the House) take action to end disorder or disturbance in the Chamber. Black Rod also holds the office of Serjeant-at-Arms of the House of Lords, and in this capacity attends upon the Lord Speaker. The Gentleman Usher of the Black Rod's duties may be delegated to the Yeoman Usher of the Black Rod or to the Assistant Sergeant-at-Arms.

Procedure

Benches in the House of Lords Chamber are coloured red. In contrast, the House of Commons is decorated in green.

The House of Lords and the House of Commons assemble in the Palace of Westminster. The Lords Chamber is lavishly decorated, in contrast with the more modestly furnished Commons Chamber. Benches in the Lords Chamber are coloured red; thus, the House of Lords is sometimes referred to as the "Red Chamber". The Woolsack is at the front of the Chamber; supporters of the Government sit on benches on the right of the Woolsack, whilst members of the Opposition sit on the left. Neutral members, known as Cross-benchers, sit on the benches immediately opposite the Woolsack.

The Lords Chamber is the site of many formal ceremonies, the most famous of which is the State Opening of Parliament, held at the beginning of each new parliamentary session. During the State Opening, the Sovereign, seated on the Throne in the Lords Chamber and in the presence of both Houses of Parliament, delivers a speech outlining the Government's agenda for the upcoming parliamentary session.

In the House of Lords, members need not seek the recognition of the presiding officer before speaking, as is done in the House of Commons. If two or more Lords simultaneously rise to speak, the House decides which one is to be heard by acclamation, or, if necessary, by voting on a motion. Often, however, the Leader of the House will suggest an order, which is thereafter generally followed. Speeches in the House of Lords are addressed to the House as a whole ("My Lords") rather than to the presiding officer alone (as is the custom in the Lower House). Members may not refer to each other in the second person (as "you"), but rather use third person forms such as "the noble Duke", "the noble Earl", "the noble Lord", "my noble friend", etc.

Each member may make no more than one speech on a motion, except that the mover of the motion may make one speech at the beginning of the debate and another at the end. Speeches are not subject to any time limits in the House; however, the House may put an end to a speech by approving a motion "that the noble Lord be no longer heard". It is also possible for the House to end the debate entirely, by approving a motion "that the Question be now put". This procedure is known as Closure, and is extremely rare.

Once all speeches on a motion have concluded, or Closure invoked, the motion may be put to a vote. The House first votes by voice vote; the Lord Speaker or Deputy Speaker puts the question, and the Lords respond either "Content" (in favour of the motion) or "Not-Content" (against the motion). The presiding officer then announces the result of the voice vote, but if his assessment is challenged by any Lord, a recorded vote known as a division follows. Members of the House enter one of two lobbies (the "Content" lobby or the "Not-Content" lobby) on either side of the Chamber, where their names are recorded by clerks. At each lobby are two Tellers (themselves members of the House) who count the votes of the Lords. The Lord Speaker may not take part in the vote. Once the division concludes, the Tellers provide the results thereof to the presiding officer, who then announces them to the House. If there is an equality of votes, the motion is decided according to the following principles: legislation may proceed in its present form, unless there is a majority in favour of amending or rejecting it; any other motions are rejected, unless there is a majority in favour of approving it. The quorum of the House of Lords is just three members for a general or procedural vote, and 30 members for a vote on legislation. If fewer than three or 30 members (as appropriate) are present, the division is invalid.

Committees

The Parliament of the United Kingdom uses committees for a variety of purposes; one common use is for the review of bills. Committees of both Houses consider bills in detail, and may make amendments. In the House of Lords, the committee most commonly used for the consideration of bills is the Committee of the Whole House, which, as its name suggests, includes all members of the House. The Committee meets in the Lords Chamber, and is presided over not by the Lord Speaker, but by the Chairman of Committees or a Deputy Chairman. Different procedural rules apply in the Committee of the Whole House than in normal sessions of the Lords; in particular, members are allowed to make more than one speech each on a motion. Similar to the Committee of the Whole House are the Grand Committees, bodies in which any member of the House may participate. A Grand Committee does not meet in the Lords Chamber, but in a separate committee room. No divisions are held in Grand Committees, and any amendments to the bill require the unanimous consent of the body. Hence, the Grand Committee procedure is used only for uncontroversial bills.

Bills may also be committed to Public Bill Committees, which consist of between twelve and sixteen members each. A Public Bill Committee is specifically constituted for a particular bill. A bill may also be referred to a Special Public Bill Committee, which, unlike the Public Bill Committee, has the power to hold hearings and collect evidence. These committees are used much less frequently than the Committee of the Whole House and Grand Committees.

The House of Lords also has several Select Committees. The members of these committees are appointed by the House at the beginning of each session, and continue to serve until the next parliamentary session begins. The House of Lords may appoint a chairman for a committee; if it does not do so, the Chairman of Committees or a Deputy Chairman of Committees may preside instead. Most Select Committees are permanent, but the House may also establish ad hoc committees, which cease to exist upon the completion of a particular task (for instance, investigating the reform of the House of Lords). The primary function of Select Committees is to scrutinise and investigate Government activities; to fulfil these aims, they are permitted to hold hearings and collect evidence. Bills may be referred to Select Committees, but are more often sent to the Committee of the Whole House and Grand Committees.

The committee system of the House of Lords also includes several Domestic Committees, which supervise or consider the House's procedures and administration. One of the Domestic Committees is the Committee of Selection, which is responsible for assigning members to many of the House's other committees.

Legislative functions

Further information: Act of Parliament

The House of Lords meets in a lavishly decorated chamber in the Palace of Westminster (above).

Most legislation may be introduced in either House, but, most commonly, is introduced in the House of Commons.

The power of the Lords to reject a bill passed by the House of Commons is severely restricted by the Parliament Acts. Under those Acts, certain types of bills may be presented for the Royal Assent without the consent of the House of Lords. The House of Lords cannot delay a money bill (a bill that, in the view of the Speaker of the House of Commons, solely concerns national taxation or public funds) for more than one month. Other public bills cannot be delayed by the House of Lords for more than two parliamentary sessions, or one calendar year. These provisions, however, only apply to public bills that originate in the House of Commons, and cannot have the effect of extending a parliamentary term beyond five years. A further restriction is a constitutional convention known as the Salisbury Convention, which means that the House of Lords does not oppose legislation promised in the Government's election manifesto.

By a custom that prevailed even before the Parliament Acts, the House of Lords is further restrained insofar as financial bills are concerned. The House of Lords may neither originate a bill concerning taxation or Supply (supply of treasury or exchequer funds), nor amend a bill so as to insert a taxation or Supply-related provision. (The House of Commons, however, often waives its privileges and allows the Upper House to make amendments with financial implications.) Moreover, the Upper House may not amend any Supply Bill. The House of Lords formerly maintained the absolute power to reject a bill relating to revenue or Supply, but this power was curtailed by the Parliament Acts, as aforementioned.

Hence, as the power of the House of Lords has been severely curtailed by statute and by practice, the House of Commons is clearly the more powerful chamber of Parliament.

In March 2006, it was reported that, among other reforms, the Government are considering removing the ability of the Lords to delay legislation that arises as a result of manifesto commitments, and reducing their ability to delay other legislation to a period of 60 days[1].

Judicial functions

Main article: Judicial functions of the House of Lords

The judicial functions of the House of Lords originate from the ancient role of the Curia Regis as a body that addressed the petitions of the King's subjects.

The judicial functions of the House of Lords are exercised not by the whole House, but by a committee of "Law Lords". The bulk of the House's judicial business is conducted by the twelve Lords of Appeal in Ordinary, who are specifically appointed for this purpose under the Appellate Jurisdiction Act 1876. The judicial functions may also be exercised by Lords of Appeal (other members of the House who happen to have held high judicial office). No Lord of Appeal in Ordinary or Lord of Appeal may sit judicially beyond the age of seventy-five. The judicial business of the Lords is supervised by the Senior Lord of Appeal in Ordinary and his or her deputy, the Second Senior Lord of Appeal in Ordinary.

The jurisdiction of the House of Lords extends, in civil and in criminal cases, to appeals from the courts of England and Wales, and of Northern Ireland. From Scotland, appeals are possible only in civil cases; Scotland's High Court of Justiciary is the highest court in criminal matters. The House of Lords is not the United Kingdom's only court of last resort; in some cases, the Privy Council performs such a function. The jurisdiction of the Privy Council in the United Kingdom, however, is narrower than that of the House of Lords; it encompasses appeals from ecclesiastical courts, issues related to devolution, disputes under the House of Commons Disqualification Act 1975, and a few other minor matters.

Not all Law Lords sit to hear cases; rather, since World War II cases have been heard by panels known as Appellate Committees, each of which normally consists of five members (selected by the Senior Lord). An Appellate Committee hearing an important case may consist of even more members. Though Appellate Committees meet in separate committee rooms, judgement is given in the Lords Chamber itself. No further appeal lies from the House of Lords, although the House of Lords may refer a "preliminary question" to the European Court of Justice in cases involving an element of European Union law, and a case can be brought at the European Court of Human Rights if the House of Lords does not provide a satisfactory remedy in cases where the European Convention on Human Rights is relevant.

A distinct judicial function—one in which the whole House, rather than just the Law Lords, may participate—is that of trying impeachments. Impeachments were brought by the House of Commons, and tried in the House of Lords; a conviction required only a majority of the Lords voting. Impeachments, however, are to all intents and purposes obsolete; the last impeachment was that of Henry Dundas, 1st Viscount Melville in 1806.

Similarly, the House of Lords was once the court that tried peers charged with high treason or felony. The House would be presided over not by the Lord Chancellor, but by the Lord High Steward, an official especially appointed for the occasion of the trial. If Parliament was not in session, then peers could be tried in a separate court, known as the Lord High Steward's Court. Only peers, their wives, and their widows (unless remarried) were entitled to trials in the House of Lords or the Lord High Steward's Court; the Lords Spiritual were tried in Ecclesiastical Courts. In 1948, the right of peers and peeresses to be tried in such special courts was abolished; now, they are tried in the regular courts. The last such trial in the House was of Edward Southwell Russell, 26th Baron de Clifford in 1935.

The Constitutional Reform Act 2005 will lead to the creation of a separate Supreme Court of the United Kingdom, to which the judicial function of the House of Lords, and some of the judicial functions of the Judicial Committee of the Privy Council, will be transferred. In addition, the office of Lord Chancellor has been reformed by the act, to remove his ability to act as both a government minister and a judge. This is motivated in part by concerns that the historical admixture of legislative, judicial, and executive power, may not be in conformance with the requirements of the European Convention on Human Rights (a judicial officer having legislative or executive power not being likely to be considered sufficiently impartial to provide a fair trial), and in any case are considered undesirable according to modern constitutional theory concerning the separation of powers. The new Supreme Court will be located in Middlesex Guildhall.

Relationship with the Government

Unlike the House of Commons, the House of Lords does not control the term of the Prime Minister or of the Government. Only the Lower House may force the Prime Minister to resign or call elections by passing a motion of no-confidence or by withdrawing supply. Thus, the House of Lords' oversight of the government is limited.

Most Cabinet ministers are from the House of Commons, rather than the House of Lords. In particular, all Prime Ministers since 1902 have been members of the Lower House. (Alec Douglas-Home, who became Prime Minister in 1963 whilst still an Earl, disclaimed his peerage and was elected to the Commons soon after his term began.) No major cabinet position (except Lord Chancellor and Leader of the House of Lords) has been filled by a peer since 1982, when Lord Carrington was the Foreign Secretary and David Young was Secretary of State for Employment and then Secretary of State for Trade and Industry from 1984 to 1989. (Though Baroness Amos was briefly International Development Secretary until the death of Lord Williams of Mostyn in 2003).

The House of Lords does remain a source for junior ministers, such as Lord Hunt of Kings Heath (Department of Health). Since 1999 the Attorney-General has been a Lord; currently it is Baroness Scotland of Asthal. The House of Lords also has a Chief Whip - currently Baroness Royall of Blaisdon.

Current composition

The House of Lords, as of 11 April 2008:[2]

Affiliation

Life peers

Hereditary peers

Lords spiritual

Total

Elected by party

Elected by whole house

Royal office-holders

Labour

212

2

2

0

-

216

Conservative

154

39

9

0

-

202

Liberal Democrats

73

3

2

0

-

78

UKIP

1

1

-

-

-

2

Crossbenchers

168

29

2

2

-

201

Non-affiliated

10

2

0

0

-

12

Lords Spiritual

-

-

-

-

26

26

Total

619

75

15

2

26

737

Note: These figures exclude twelve peers who are on leave of absence.

†The number of hereditary peers "allocated" to each party, which is based on the proportion of hereditary peers that belongs to that party, is:

  • Conservative Party: 39 peers
  • Labour Party: 2 peers
  • Liberal Democrats: 3 peers
  • Cross-benchers: 29 peers

Of the initial 42 hereditary peers elected as Conservatives, one (Lord Brabazon of Tara) now sits as a Cross-bencher, having become the House of Lords' Chairman of Committees, and another (Lord Willoughby de Broke) now sits as a UKIP member.

A report in 2007 stated that many members of the Lords (particularly the life peers) do not attend regularly - the average attendance was around 408.[3]

Current political leaders in the Lords

References

  1. ^ ePolitix.com - Lords reform moves up the agenda
  2. ^ House of Lords: Analysis of Composition in the House of Lords (7 January, 2008). Retrieved on 2008-01-10.
  3. ^ Government White Paper, February 2007, The House of Lords: Reform, page 44