Mereworth v Ministry of Justice

This is a renewed application for permission to appeal against the order of Lewison J made on 23 May 2001. The judge had before him an application to strike out these proceedings. They are proceedings commenced by Baron Mereworth against the Ministry of Justice for declarations about his Letters Patent as a baron. He sought certain declarations: first, that, in consequence of the Letters Patent creating his barony, he possessed and held a seat and place in the House of Lords and had a right to have a voice in the House of Lords; secondly, that the court had jurisdiction to interpret the House of Lords Act 1999 (“the 1999 Act”) and to determine whether the 1999 Act had repealed his Letters Patent; and, thirdly, that section 1 of the 1999 Act did not prohibit him from having, holding and possessing the seat, place and voice granted to him by the monarch set out in his Letters Patent. I need not recite the Letters Patent. No issue arises as to them in the sense that it is clear that, at the date of the grant of the Letters Patent, Baron Mereworth was granted the right to take part in the proceedings in the House of Lords. Section 1 of the 1999 Act, however, provides that “No one may be a member of the House of Lords by virtue of a hereditary peerage.” It was for that reason that the present dispute has arisen.

The Ministry of Justice took out an application to have the proceedings struck out, and that (as explained above) was the matter before the judge. The judge held in his judgment that as a result of the Bill of Rights Act 1688, Article 9 and the principle of exclusive cognisance, certain matters fell within the exclusive competence of Parliament and not within the competence of the courts. They included questions affecting the membership of the House of Lords unless there was legislation to contrary. Accordingly, so far as the issue of a writ of summons was concerned, that was a matter for the Committee of Privileges of Parliament, and not for the court. If the Committee did not issue such a writ when it ought to have done so, then that was a matter to be raised in Parliament and not in the courts.

It is convenient to give at this point some explanation about the principles of Parliamentary privilege contained in article 9 of the Bill of Rights and of the exclusive cognisance of Parliament. They were considered recently by the Supreme Court in R v Chaytor and others [2011] 1 AC 684. The issue in that case was whether the courts had jurisdiction in  the case of offences arising out of the submission of claims for expenses alleged to have been committed by the defendants while Members of Parliament. Parliament had adopted a scheme whereby Members of Parliament could claim expenses.  I need only refer to that part of the decision which deals with exclusive cognisance. Lord Phillips explained the scope of the principle of exclusive cognisance in these terms :

 “63. This phrase describes areas where the courts have ruled that any issues should be left to be resolved by Parliament rather than determined judicially. Exclusive cognisance refers not simply to Parliament, but to the exclusive right of each House to manage its own affairs without interference from the other or from outside Parliament. The boundaries of exclusive cognisance result from accord between the two Houses and the courts as to what falls within the exclusive province of the former. Unlike the absolute privilege imposed by article 9, exclusive cognisance can be waived or relinquished by Parliament…”

As Lord Rodger pointed at paragraph 131, in some areas the courts and Parliament have overlapping jurisdiction.In those cases, the jurisdiction of Parliament is not exclusive.  Accordingly, Parliament could find that a Member committed a contempt of Parliament as a result of some act done in the course of submitting a claim for expenses.  The same act might also contravene the criminal law of the land.  In contrast, as Lord Phillips pointed out, the courts would not entertain proceedings for judicial review of the decision to adopt the scheme (see paragraphs 76, 77 and 92 of his judgment). 

The present case, however, raises a question concerning the right of Parliament to determine without interference from the courts the persons who are entitled to a writ of summons to participate in its proceedings. There is no doubt on the authorities cited by the judge that that question falls within the exclusive cognisance of Parliament. In those circumstances, it is unnecessary to say anything about Parliamentary privilege.

The judge noted that it was stated in Halsbury’s Laws of England, Volume 34, paragraph 535 that a person who succeeded to a peerage was entitled to receive “in virtue of his peerage” a writ of summons to sit and vote in the House of Lords. The judge went on to hold that the use of the expression “by virtue of” in section 1 of the 1999 Act made it clear that that section removed the right to receive a writ of summons, which allowed hereditary peers to be members of the House of Lords and thus removed one of the privileges. The judge also considered the application of Articles 6, 8 and 14 of the European Convention on Human Rights and Article 1 of the First Protocol. No argument has been addressed to me on Convention rights, and I propose to say no more about them.

At the very end of his judgment the judge expressed the following conclusions:

“24.

Finally, Lord Mereworth argues that the House of Lords Act has not repealed his Letters Patent. In a narrow sense, that is correct, contrary to the rather incautious view expressed by the Treasury Solicitor in an email written long after this claim was issued. The Letters Patent have not been repealed, so Lord Mereworth is entitled to the dignity of the peerage created by those Letters Patent. He is entitled to call himself "Lord Mereworth" but I asked Ms Gore what right attaching to the peerage was being asserted in these proceedings other than the right to receive a writ and the right to sit and vote in Parliament. She said that no other right was being asserted. But what the 1999 Act did do, and did clearly, was to remove one of the former privileges that attached to a hereditary peerage, namely the right to sit and vote in the House of Lords.”

Mr Philip Coppel QC appears today on this application for the appellant. He submits that the word “repeal”, as used by the judge in paragraph 24 (set out above) meant “extinguished”. In other words he says that the judge clearly held that the 1999 Act had not extinguished, in effect, the Letters Patent. As I see it, that cannot stand with the final sentence of paragraph 24 in which the judge recognises that one of the privileges which stems from the Letters Patent was removed, namely the right to sit and vote in the House of Lords. Much of the difficulty, it seems to me, has been derived from the fact that the word “repealed” is used. More commonly that word is used to describe the effect of legislation on earlier legislation. I should say that there is no dispute that, but for section 1 of the 1999 Act, the claimant would be entitled to receive a writ of summons. I take that from a summary in the bundle of a letter of 30 September 2010 from Mr Charles Denyer, the Head of the Crown Office. The judge observed, after giving judgment, that the question of whether or not there had been a repeal of the Letters Patent was what he called a very minor success, because it had not been the subject of any real argument, meaning, as it seems to me, that it had not really been a question in issue.

As I see it, what the judge decided was clearly that, in a narrow sense, there was no repeal. However, it is necessary to read paragraph 24 in full. The judge was clearly saying that, as a matter of substance, there was an alteration to the enjoyment of the rights of the Letters Patent. That is because the right to sit and vote in the House of Lords was taken away by section 1 of the 1999 Act. That is the only fair way of reading paragraph 24 of the judge’s judgment.

When the word “repealed” is used in relation to enactments, we speak of both express and implied repeal. Express repeal occurs where one statute expressly states that it repeals another, but a statute can also impliedly repeal another. In such a case there is no reference in terms to the enactment being repealed in the repealing instrument but, nonetheless, the courts interpret the statute as having that effect. Thus it is not essential, if the enjoyment of the rights of the Letters Patent is to be affected, that there should be some express reference in the statute to the Letters Patent. Parliament can achieve that effect by a statute which, by implication, cannot be read otherwise than having that effect.

As I see it, this application before me today simply seeks to build on the interpretation placed on the judge’s statement that, in a narrow sense, the Letters Patent has not been repealed. Mr Coppel’s submission to me is that it is very important to the appellant that the court should ascertain the effect of the Act on the rights conferred by his Letters Patent, but I would point out in response to that that these are proceedings in which he has taken upon himself the obligation of satisfying the court that it is right to give certain specified declarations. It is not a construction summons, as one finds where a person comes to the court asking for directions as to the meaning of a document. That occurs, for instance, where a trustee of a charity, or a private trust, seeks the guidance of the court. The position in this case is that the claimant sought certain specified declarations which he failed to obtain. I might add that no application was made after delivery of judgment below that there should be a declaration to reflect paragraph 24 of the judge’s judgment. Had that application been made, the judge would have had an opportunity of considering it. It is difficult to say that the judge was in error for not having reflected paragraph 24 in a declaration when he was not asked to give such a declaration and there was no application to amend the proceedings.

Mr Coppel submits on this application that he would seek to amend the proceedings so as to seek declarations in terms of paragraph 23 of his advocate’s statement prepared for the hearing of this application. Those declarations would be as follows: that having established his succession to the barony, the appellant, under the Letters Patent, (1) has and holds the name, state, degree, style, dignity, title and honour of Baron Mereworth of Mereworth Castle in the county of Kent; (2) has, holds and possesses a seat, place and voice in the parliaments of the United Kingdom of Great Britain and Northern Ireland; and (3) may enjoy and use all and singular the rights, privileges, pre-eminences, immunities and advantages to the degree of a baron in all things duly and of right belonging to other barons.

The issue arising from these declarations is whether the Court of Appeal should consider an application before it effectively to re-work the proceedings and seek declarations which were not put before the judge. As I have said, it is difficult to say that the judge was in error in not dealing with matters which were not before him. In any event, however, in my judgment the declarations are not an appropriate form because they speak in the present tense about a document which was granted in the past. The Letters Patent were granted many years ago and subsequent events have intervened. The position, as Mr Coppel candidly put it, is that what the appellant seeks is to know from the court what remains of the rights conferred by the Letters Patent, but that is different from the application in paragraph 23. The appellant would have to set out the rights which he contended still remain notwithstanding section 1 of the 1999 Act or indeed any other legislation which had effect upon it. The appellant would have to be candid with the court as to what those difficulties were. If that was done, then, of course, account would have to be taken of the effect of the principle of exclusive cognisance, which would mean that there were a very large number of matters over which the court had no jurisdiction whatever. In its present form, however, paragraph 23, in my judgment, does not set out declarations in a form which this court would consider granting.

It is difficult to see how the court could go further than the judge did. Lewison J expressed the position in paragraph 24. He set out clearly that there was no repeal of the Letters Patent in the narrow sense, by which I think he meant something akin to legislation expressly repealing other legislation, but then went on to say that, clearly, the 1999 Act had had an effect on the rights conferred by the Letters Patent, whether on the rights themselves or on the enjoyment of the rights. Mr Coppel sought to make a distinction between those concepts, but for the present purposes I do not think any difference is material. It would have been different if the appellant had pointed to some issue of interpretation on the 1999 Act. Then the court could have considered the meaning of the statute in the conventional way. No such point of interpretation is, however, identified.

In those circumstances, I do not consider that this is a case with a real prospect of success on appeal. The case is not in an appropriate form to be placed with the Court of Appeal and no error on the part of the judge has been shown. I am mindful of Mr Coppel’s opening submissions in which he submitted that there is a compelling reason why an appeal should be heard. The claims in these proceedings are of great concern to persons who may claim a right to sit in the legislature of Great Britain. That right is undoubtedly an important constitutional matter but it does not follow that it is a matter which is in a form in which the courts can deal with it. While I have no doubt as to the force of Mr Coppel’s submissions, in my judgment there is no issue here on which I can properly give permission to appeal. These are not proceedings which could be dealt with in the Court of Appeal in the course of its appellate jurisdiction.

I direct that this judgment may be cited notwithstanding that it is given on an application for permission to appeal.