House of Lords(Hereditary Peers) Bill

[malcolm davies]

In the King's Speech the Government announced that the right of hereditary peers to be elected as members of the House would be removed.There was no mention of a mandatory retirement age for life peers.

When this comes into effect,the House of Lords will have no powers over hereditary peers and disputes over succession will be dealt with by the Sovereign under the prerogatives of the Crown.No doubt in cases of disputed succession the King will appoint lawyers to advise him on whether the claim should be allowed-who they will be is not clear and they need not be members of the Supreme Court.

Incidentally,apart from convention,there is no legal reason why the Duke of Edinburgh cannot sit and vote in the House of Lords as he holds a life peerage.

[S. S.]

I think as to the phasing out of hereditary peers, they may move onto a retirement age for life peers or entirely eject them as a group as well from being entitled to sit in the House of Lords. We will have to wait and see what comes of it.

I thought after the Wensleydale Case that it was established you couldn't take your seat in the House of Lords by a peerage created for life other than those under the Appellate Jurisdiction and the Life Peerages Act? Prince Edward would hypothetically sit as Earl of Wessex no?

S.S.

[Shachar Raz]

I think it is to do with the wording of the letters patent. Looking at the London Gazette, a typical Life Peerage notice reads " THE KING has been pleased by Letters Patent under the Great Seal of the Realm dated XX-XX-XXXX to to confer the dignity of a Barony of the United Kingdom for life upon X by the name, style and title of of Baron X." Meanwhile, Prince Edward's appointment as the Duke of Edinburgh reads "HIS MAJESTY THE KING has been pleased to direct Letters Patent to be passed under the Great Seal of the United Kingdom of Great Britain and Northern Ireland, granting unto His Majesty’s Brother, His Royal Highness Prince Edward Antony Richard Louis, Earl of Wessex and Forfar, K.G., G.C.V.O., for life the dignity of Duke of Edinburgh." No mention of a name, style or title in the latter case.

[S. S.]

Shachar, bear in mind the last peerage created for life by the Crown other than under the Life Peerages Act or the Appellate Jurisdiction Act (which explicitly gave the power to the Crown in order to create life peerages that gave their holders a seat in the House of Lords) was the Barony of Wensleydale of Wensleydale on 16 Jan 1856.

The Wensleydale Peerage Case ruled that the grantee was not entitled to sit in the House of Lords under that title. The grantee was then created Baron Wensleydale of Walton on 23 July 1856 with regular remainder to his heirs male. The first barony’s London Gazette notice went as follows” “The Queen has been pleased to direct letters patent to be passed under the Great Seal, granting the dignity of a Baron… unto The Right Honourable Sir James Parke… for the term of his natural life, by the name, style and title of Baron Wensleydale…” (LG, No 21837, 11 Jan 1856, p 112).

The reason Prince Edward’s notice reads oddly the way it does is probably down to the fact the London Gazette publishers never had to come up with a specific wording for such a creation of a peerage for life outside the two acts of parliament above that created life peerages. In any case, the notice is actually the notice to confer, not the actual notice that the letters patent for the peerage was sealed. The wording in the London Gazette is of no significance other than the fact that Prince Edward could not sit in the House of Lords as Duke of Edinburgh (indeed even more so if the Lords indeed objected the same way the Wensleydale case individuals did so many decades ago), he would instead sit at Earl of Wessex, same way Lord Wensleydale held two baronies, but could only sit in the one created with ordinary remainder to his heirs male. 

I searched through the website of the London Gazette and could not find a reference to the LG notice that the actual letters patent was sealed. The index for 2023 has not been uploaded yet either for me to search through. The letters patent have been actually sealed though.

S.S.

[Shachar Raz]

The London Gazette did publish a notice saying that the letters patent were sealed a few weeks later https://www.thegazette.co.uk/notice/4327535

[malcolm davies]

SS,

     As to the Wensleydale peerage case-that arose  because at that time one of the privileges of a peer was his entitlement to a summons to sit in the House of Lords.It is part of the House of Lords's privileges to determine who receives summons.

By this means,the House of Lords,with the acceptance of the Crown,determined who was entitled to succeed to a hereditary peerage.Now hereditary peers,after the legislation is passed,will not have the privilege of being entitled to a summons or being eligible to being elected as a peer and receive a summons.The House of Lords will then have no power to determine who succeeds to a hereditary peerage,as it does not involve any privilege of the House of Lords.The power will revert to the Crown.How the Crown will determine disputed claims is yet to be ascertained.Probably the King will nominate persons to advise him-some may be lawyers,but not necessarily all.

Now to the Duke of Edinburgh.

Section 1(1) of the Life Peerages Act 1958 enables the Crown to create life peerages.s1(2) states:-

"(2) A peerage conferred under this section shall, during the
life of the person on whom it is conferred, entitle him-
(a) to rank as a baron under such style as may be appointed
by the letters patent; and
(b) subject to subsection (4) of this section, to receive writs
of summons to attend the House of Lords and sit and
vote therein accordingly,
and shall expire on his death"

In s6 of the Appellate Jurisdiction Act 1876 there are these words:-

"Every Lord of Appeal in Ordinary,unless he is otherwise entitled to
sit as a member of the House of Lords,shall by virtue and according
to the date of his appointment be entitled during his life to rank as a
Baron by such style as Her Majesty may be pleased to appoint, and
shall during the time that he continues in his office as a Lord of
Appeal in Ordinary,and no longer,be entitled to a writ of summons
to attend, and to sit and vote in the House of Lords; his dignity
as a Lord of Parliament shall not descend to his heirs."

Note that the entitlement to a writ of summons ceased on ceasing to be a Law Lord.

The House of Lords Act 1999 says in s1:

"No-one shall be a member of the House of Lords by virtue of a hereditary peerage"

In s2 there are provisions for exceptions in the amount of 90 hereditary peers.This section will no doubt be repealed.

The link to the letters patent for Prince Edward is here:

https://www.whatdotheyknow.com/request/warrant_for_letters_patent_for_t/response/2293721/attach/6/Copy%20of%20Warrant%20Duke%20of%20Edinburgh%202.pdf?cookie_passthrough=1

The question is whether s1 of the House of Lords Act 1999 means that life peers can be created without the restrictions imposed by s6 of the Appellate Jurisdiction Act 1876 or s1(2) of the Life Peerages Act 1958.

I think it is arguable that they can,because it impliedly says you can be a member of the House of Lords if you have a peerage which is not an hereditary peerage.Prince Edward fits into that category in respect of his title as Duke of Edinburgh s1 could have said "No one shall be a member of the House of Lords except as provided under the Appellate Jurisdiction Act or the Life Peerages Act or the exceptions in this Act". The point is it did not. It is not going to be tested in the case of Prince Edward,by reason of convention.It may be tested if the King creates a person outside the Royal Family to a life peerage which is not under the Life Peerages Act.The House of Lords would then have to determine whether it would issue a writ of summons.

[colinp]

Piece in the Telegraph yesterday from our own Eleanor Doughty speculating that the cull of the hereditaries may not extend to the Earl Marshal and the Lord Great Chamberlain. I don't think the draft Bill has yet been published

Meet the ‘bullet-proof’ peers who will survive Labour’s House of Lords cull (msn.com)

[bx...@yahoo.com]

Kudos to Eleanor for writing such an interesting article and thanks, colinp, for posting the link here.

Brooke

[malcolm davies]

It will be interesting to see whether the bill simply provides for removal of all hereditary peers without exception and providing for Norfolk and Carrington to have life peerages,or whether the bill exempts them.If the former,then the replacement peerage for Norfolk could be a life dukedom-see my comments above as to life peerages.

Eleanor's reference to Prime Ministers who have descendants in the male line of their peerages is incomplete-the present Duke of Devonshire is descended from the 4th Duke of Devonshire(Prime Minister 1756-57),the Duke of Grafton is descended from the 3rd Duke of Grafton(Prime Minister 1768-1770),the Marquess of Lansdowne(descended from the 1st Marquess who was better known as Earl of Shelburne),the Marquess of Bute(Earl of Bute at the time), the Marquess of Aberdeen(Earl of Aberdeen at the time),the Marquess of Salisbury,the Earl of Guildford(Lord North as Prime Minister),the Earl Grey,the Earl of Derby,the Earl of Rosebery ,the Earl Baldwin,the Earl Lloyd George,the Earl of Oxford & Asquith,the Earl of Home and the Earl of Stockton.

[Shachar Raz]

And the Earl Russell who won a by-election to the Lords in 2023

[Eleanor Doughty]

Thanks Brooke and Colin! It was a nice commission to get. 

By no means was my list intended to be exhaustive, partly owing to space in the paper!

[Peter FitzGerald]

I took it in any event as referring only to those still in the Lords, and many of those in Malcolm's list no longer have seats (although Lord Salisbury and Lord Oxford do).

For completeness in respect of Malcolm's list, there are also a few peers who are the heirs male of PMs who did not hold peerages whilst in office: the Viscount Sidmouth (descended from Henry Addington), the Earl Peel (descended from Sir Robert Peel) and the Lord Coleraine (descended from Bonar Law).

[Eleanor Doughty]

Yes, that too! I don’t think Salisbury does, does he still? He certainly did have but took a leave of absence and hasn’t come back. He would, at any rate, say he hasn’t been involved with politics for some years now (even if that seems hard to believe)

[Shachar Raz]

Salisbury resigned back in 2017 under the 2014 act