Mereworth v Ministry of Justice

MR JUSTICE LEWISON: In 1926, King George V created the Barony of Mereworth by Letters Patent. The Letters Patent conferred upon the first Lord Mereworth and the heirs male of his body, lawfully begotten, “A Seat, Place and Voice in Parliament’s Public Assembly and Councils” of the Crown in the United Kingdom as Barons of Parliament.

The last Lord Mereworth died in 2002 and the present Lord Mereworth succeeded to the title. On 16 August 2010, he wrote to Her Majesty the Queen stating that he was entitled to a Seat, Place and Voice in Parliament and requesting Her Majesty to issue him a Writ of Summons for the Parliamentary sittings in September 2010.

The response of the Crown Office of the House of Lords was that the result of section 1 of the House of Lords Act 1999 was that Lord Mereworth was not entitled to a Writ of Summons because he was a hereditary peer. Lord Mereworth persisted with his request and by letter of 22 October 2010, the Head of the Crown Office said that:

“If you consider that the Crown Office has withheld a writ of summons which you are entitled to receive, then, given that this is a matter relating to the membership of the House of Lords, you should contact the Chairman of the Committee for Privileges and Conduct, House of Lords, London SW1A OPW.”

Lord Mereworth declined to follow that advice and instead issued a Part 8 claim form on 20 December 2010. The claim form is accompanied by Particulars of Claim verified by a Statement of Truth which constitute the matters on which Lord Mereworth wishes to rely.

The first declaration that he claims is a declaration that in consequence of the Letters Patent creating the Barony of Mereworth, he possesses and holds a seat and place in the House of Lords and has the right to have a voice in the House of Lords, that he is entitled to demand a Writ of Summons and is entitled, as of right, to receive a Writ of Summons.

The second declaration that he claims is a declaration that the court has jurisdiction to interpret the House of Lords Act 1999 and to determine whether the Act repealed Lord Mereworth’s Letters Patent.

The Crown Office says that the court has no jurisdiction to grant this relief because it is within the exclusive cognisance of Parliament; but that if that is wrong, then the claim is bound to fail because the right to a Writ of Summons was removed by section 1 of the House of Lords Act 1999. Logically, the question of jurisdiction comes first because if this court does not have jurisdiction, that is the end of the matter.

The separation of powers, although not in quite the pure form that Montesquieu imagined, has always been part of our constitution. Although much of our constitution remains unwritten, part of the demarcation line between the province of the courts and the province of Parliament is written down, notably in article 9 of the Bill of Rights 1688 which provides that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. Article 9 protects not only freedom of speech in Parliament but also proceedings in Parliament.

Existing in parallel with Article 9 is the principle of exclusive cognisance. The ambit of both article 9 and the principle of exclusive cognisance were recently considered by the Supreme Court in R v Chaytor [2010] UKSC 52. In relation to exclusive cognisance, Lord Phillips, with whom the rest of the Justices of the Supreme Court agreed, said:

Where a matter falls within the internal affairs of Parliament, it is within the area of Parliament’s exclusive cognisance except where legislation provides to the contrary. In my judgment, the ordinary civil and criminal jurisdiction of the courts does not extend to determining the rights of members to sit in either House of Parliament and the courts equally have nothing to do with questions affecting its membership except insofar as they have been specially designated by law to act in such matters. One example of special designation is the power of an Election Court to decide whether a Member of Parliament has been duly elected. But even in that case, an Election Court is not one of the ordinary civil courts of this country; it is a special court mandated by a specific Act of Parliament. Apart from special cases like this, in my judgment, it is a matter for Parliament whether a person is entitled to sit and vote in either House.

This principle applies even where entitlement or disentitlement to sit and vote depends on a statute. As Stephen J put it in Bradlaugh v Gosset [1884] 12 QBD 271, referred to with approval in R v Chaytor:

“I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the Statute Law which has relation to its own internal proceedings and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable.”

What applies to the House of Commons applies equally to the House of Lords. This is illustrated by Viscountess Rhondda’s claim [1922] 2 AC 339 where the House of Lords’ Committee for Privileges considered the claim of Viscountess Rhondda to sit in the House of Lords. Her claim was based on the Sex Disqualification (Removal) Act 1919. Lord Birkenhead, the Lord Chancellor, said that it was the duty of the Committee to report into the question whether Viscountess Rhondda was entitled to receive a Writ of Summons. As he put it:

“The writ is not to be issued capriciously or withheld capriciously at the pleasure of the Sovereign or of this House. It is to be issued, or withheld, according to the law relating to the matter, and if, under that law, it appears that there is a debt of justice to the petitioner in that matter, the writ will issue and, if not, it cannot issue.”

Thus, the decision in that case about whether the law required a writ to be issued was a matter for the Committee for Privileges to decide. Lord Birkenhead also referred to the earlier decision of the Committee for Privileges in the Wensleydale Peerage Case [1856]. This was the case in which Sir James Parke, the distinguished judge of the Court of the Exchequer, was created a Life Peer but the House of Lords refused to allow him to sit and vote in the House because, they decided, that as the law then stood, the creation of Life Peers was not within the Crown’s prerogative powers. It was in consequence of that that the law was changed by Act of Parliament to allow creation of Life Peers as the first Law Lords. The validity of the original creation was decided by the Committee for Privileges because it was a question of entitlement to sit and vote in the House.

Lord Lyndhurst, who spoke for the majority of the Committee, explained the procedure in column 1156 of the full text of the debate in the Committee for Privileges (which does not appear in the Law Reports themselves). What Lord Lyndhurst said was this:

“If a Writ of Summons is improperly withheld, your Lordships can insist upon its being issued. You may address the Crown for that purpose if you think proper. If that address to the Crown is unavailing, there is a remedy that in a remarkable case has been resorted to and which was effectual to attain its object. The Peers in Parliament, in that case, refused to proceed to business until the Writ of Summons was issued and until the House was properly constituted, and the historian who records this fact says that the means adopted were so effectual that the King was induced to issue the Writ of Summons and that the abuse of which they complained never occurred again. That is a remedy when the Writ of Summons is withheld. On the other hand, when a party has obtruded himself upon the House in which he has no right to sit, the remedy is equally plain. It is your duty to direct your Officers to refuse to administer the oaths, or allow the party to take his seat.”

Lord Lyndhurst also asserted, in clear terms, the right of the Committee to decide who was entitled to receive the Writ of Summons and, as indicated, he said that if a person is entitled to a writ, but the Crown does not issue one, then his remedy is to petition the House. That is the advice that the Crown Office gave Lord Mereworth in the present case and, in my judgment, that advice was correct. If the Committee for Privileges has jurisdiction, it seems to me that must be an exclusive jurisdiction to decide upon entitlement to sit and vote in the House, otherwise there would be a risk of conflicting decisions: on the one hand, those of the courts and, on the other, those of the Committee for Privileges which would not be conducive to the separation of powers inherent in our constitution.

I hold, therefore, that this court has no jurisdiction to decide whether Lord Mereworth is, or is not, entitled to receive a Writ of Summons. In view of my conclusion on that question, I can deal with the substantive claim shortly and I do so in case I am wrong on the question of jurisdiction.

Before the passing of the House of Lords Act 1999, the legal position was as stated in the then current volume of Halsburys’ Laws in England, Volume 34, paragraph 535 as follows:

“… any person who succeeds to a peerage of England, Scotland, Great Britain or the United Kingdom and proves his rights to such peerage, and any person who is created a hereditary peer of the United Kingdom is entitled to receive, in virtue of his peerage, a Writ of Summons to sit and vote in the House of Lords.”

Thus the right to a Writ of Summons was “in virtue of” the peerage. Section 1 of the House of Lords Act 1999 says:

“No one shall be a member of the House of Lords by virtue of a hereditary peerage.”

In my judgment, it is clear from the use of the same phrase, “by virtue of”, that this section was intended to remove the right to receive 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. In my judgment, the reference to “a member of the House of Lords” is simply a reference to the right to sit and vote in that House. If that were not clear from the Act itself, it would have been made abundantly clear, both by the explanatory notes which accompanied the Bill and by the speech of the Lord Chancellor in support of the Bill. In a nutshell, membership of the House of Lords means the right to sit and vote in that House. It does not mean entitlement to the dignity of a peerage.

Lord Mereworth based arguments on allegations that his human rights were engaged and had been infringed. The first right he relied on was that conferred by Article 6 of the Convention on Human Rights. That relates to a person’s civil rights and obligations. However, in the case of X v United Kingdom, Application number 8208/78, the Commission for Human Rights decided that the right to participate in the work of the House of Lords cannot be regarded as a civil right within the meaning of Article 6. The Commission stated:

“It is of the opinion that such a right, connected as it is to the composition of part of the legislature, falls into the sphere of public law rights outside the scope of Article 6. Insofar as the participation in the work of the House of Lords involves an obligation, the Commission considers that mutatis mutandis the same reasoning applies.”

Ms Gore, on behalf of Lord Mereworth, argued that the right to receive a Writ of Summons is a private right, even though acting on that Writ of Summons and sitting and voting in the House of Lords might be a public right. I do not consider that is a valid distinction. The issue of a Writ of Summons is simply a precursor to the exercise of that public right and, in my judgment, it is outside the scope of Article 6. Article 6, therefore, is not engaged.

The next article relied upon is Article 8, which confers a right to respect for a person’s family and private life. But just as the right to sit and vote in Parliament is a public right for the purposes of Article 6, so by the same process of reasoning, it is no part of private life for the purposes of Article 8.

Lastly, the Particulars of Claim refer to Article 1 of the first protocol, which deals with peaceful enjoyment of possessions. In my judgment, the right to sit and vote in Parliament by virtue of a hereditary peerage cannot be described as a possession no matter how generously that expression is interpreted. In addition, the decision of the European Court of Human Rights in De la Cierva Osorio de Moscoso and Others v Spain, ECHR 1999-VII, decided in terms that a nobiliary title cannot be regarded as amounting to a possession.

Quite apart from that point, on the facts, Lord Mereworth succeeded to the Barony after the House of Lords Act 1999 came into force, so nothing was taken away from him. The fact was that the Barony to which he succeeded no longer carried with it the right to sit and vote in the House of Lords.

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.

In my judgment, even if I had had jurisdiction to decide the case, it was bound to fail. No useful purpose would be served by a trial. There is no need for this case to go any further and every reason why it should not. I will, therefore, strike it out.