Wednesday, 26 October 2011

Is Viscount Monckton a member of the House of Lords?

It is quite well known by now that Christopher Monckton, the 3rd Viscount Monckton of Brenchley, claims to be a member of the House of Lords, albeit without the right to sit or vote.  This claim has received widespread attention because Lord Monckton - who is best described a Wodehousian British eccentric - is a leading advocate of climate change denial.

Lord Monckton is a hereditary peer, and he succeeded to his peerage in 2006.  It is well known that the House of Lords Act 1999 removed all hereditary peers from the House of Lords, with the exception of 92 peers who were allowed to remain under special transitional arrangements.  So what gives?

His lordship's case is as follows:
The House of Lords Act 1999 debarred all but 92 of the 650 Hereditary Peers, including my father, from sitting or voting, and purported to – but did not – remove membership of the Upper House. Letters Patent granting peerages, and consequently membership, are the personal gift of the Monarch. Only a specific law can annul a grant. The 1999 Act was a general law. The then Government, realizing this defect, took three maladroit steps: it wrote asking expelled Peers to return their Letters Patent (though that does not annul them); in 2009 it withdrew the passes admitting expelled Peers to the House (and implying they were members); and it told the enquiry clerks to deny they were members: but a written Parliamentary Answer by the Lord President of the Council admits that general legislation cannot annul Letters Patent, so I am The Viscount Monckton of Brenchley (as my passport shows), a member of the Upper House but without the right to sit or vote, and I have never pretended otherwise.
There is, incidentally, a more extreme version of this theory promoted by the former UKIP MEP Ashley Mote which claims that all legislation passed since the 1999 Act is null and void.

Monckton's case is based on two propositions:
  • Letters patent grant entitlement to a peerage
  • Membership of the House of Lords flows from possession of a peerage
The first is true, but the second is not.  Membership of the Lords flows from the Monarch's writ of summons to a particular peer to attend the House.  This is a separate instrument from the letters patent that create the peerage itself.  What the 1999 Act did was to break the link between a peerage (and the letters patent that create it) and the right to membership of the House of Lords (as conferred by a writ of summons).

It might be useful to review what the parliamentary answer that Monckton refers to actually said:
The effect of Letters Patent creating peerages can be changed by legislation which has that specific effect. It cannot be changed by legislation of general application. Thus, the Peerage Act 1963 allowed Peeresses in their own right to sit in the House of Lords regardless of the terms of any Letters Patent creating the peerage. The House of Lords Act 1999 removed the right of anyone to sit in the House by virtue of a hereditary peerage unless they were specifically excepted from the provisions. Conversely, the House of Lords decided in 1922 in the case of Viscountess Rhondda that the terms of the Sex Disqualification (Removal) Act 1919 were not sufficiently specific to allow her to take her seat in the Lords when her Letters Patent allowed her to inherit the peerage, but not the seat in the Lords. I am aware of only one case in which the effect of individual Letters Patent has been changed by Act of Parliament, which is that of the Duke of Marlborough in 1706.
It seems to me that this actually affirms what Monckton is seeking to deny - i.e. that the 1999 Act successfully broke the link between a peer's letters patent and membership of the Lords.  Incidentally, the Rhondda case provides an earlier example of the separability of a peerage and the right to membership of the Lords, albeit in that case the separation arose from the original letters patent rather than from an Act of Parliament.

One of Monckton's fellow peers, Lord Mereworth, has tried to advance a similar argument.  Last year, he wrote to the Queen asking for a writ of summons for the parliamentary term beginning in September 2010.  The Crown Office directed him to the Lords' Committee for Privileges.  It is long established that it is for the House itself, and specifically its Committee for Privileges, to decide who is and isn't entitled to a writ of summons (Wensleydale Peerage Case [1856]; Viscountess Rhondda's Claim [1922] 2 AC 339, the case referred to above).  If the Queen refuses to issue a writ when the House thinks that she should, the remedy is apparently for the House to go on strike until the writ is forthcoming.

Mereworth didn't apply to the Committee for Privileges, and nor has Monckton.  Instead, Mereworth instructed m'learned friends and went off to the High Court.  He sought a declaration that, in consequence of the letters patent creating the Barony of Mereworth, he held a seat in the House of Lords and was entitled to receive a writ of summons.

Lewison J struck out the action before it reached trial (Mereworth v Ministry of Justice [2011] EWHC 1589 (Ch)).  His primary ground was that the courts cannot interfere in the internal workings of Parliament - an entirely orthodox doctrine, based on the 1689 Bill of Rights and the principle of exclusive cognisance.  The learned judge also, however, made some comments on the substance of Mereworth's case.  Note that Mereworth was not advancing the same argument as Monckton - the Viscount doesn't claim to be entitled to sit in the Lords, as Mereworth did - but the judge's reasoning is equally destructive of Monckton's claim.

Lewison J did not deny that Mereworth was a peer: "The Letters Patent have not been repealed, so Lord Mereworth is entitled to the dignity of the peerage created by those Letters Patent."  However, this was a separate question from his parliamentary status.  The legal position prior to the enactment of the 1999 Act was summed up in Halsbury's Laws (34, para. 535) as follows:
[A]ny person who succeeds to a peerage... and proves his rights to such peerage... is entitled to receive, in virtue of his peerage, a Writ of Summons to sit and vote in the House of Lords.
Section 1 of the House of Lords Act 1999 provided:
No one shall be a member of the House of Lords by virtue of a hereditary peerage.
Lewison J drew attention to the common use of the "in/by virtue of" phrase, and held that the Act intended to remove the right to a writ of summons, "which alone would entitle a hereditary peer to sit and vote in and hence be a member of the House of Lords".  The judge affirmed explicitly that "membership of the House of Lords means the right to sit and vote in that House" - nothing more and nothing less.

Monckton's case would therefore seem to be without merit.  This is why David Beamish, the Clerk of the Parliaments, took the highly unusual step of publishing a letter to him on 15 July 2011 in which he said:
I must repeat my predecessor's statement that you are not and have never been a Member of the House of Lords. Your assertion that you are a Member, but without the right to sit or vote, is a contradiction in terms. No-one denies that you are, by virtue of your letters Patent, a Peer. That is an entirely separate issue to membership of the House.