THE IRISH PEERS AND THE HOUSE OF LORDS - THE FINAL CHAPTER|
This article originally appeared in Burke's Peerage & Baronetage 1999, 106th Edition.
Charles Lysaght - of Lincoln's Inn and Kings' Inns, Dublin, Barrister-at-Law
The right of the Irish peers to be represented in the House of Lords was part of the unfinished business of Ireland left behind when the Irish Free State was established in 1922, reflecting the fact that the arrangements then made were regarded by all sides as an interim settlement. Most of these peers were descended from peers of the old Kingdom of Ireland which became part of the United Kingdom of Great Britain and Ireland created by the Act of Union of 1800. That act provided that the peers of Ireland should elect 28 of their number (to be called Irish representative peers) to sit for life on the part of Ireland in the House of Lords of the new United Kingdom. Vacancies were filled by elections on the death of a representative peer. Meanwhile, during the course of the 19th century, some further Irish peerages were created although the kingdom of which they were peers no longer existed; the last creation was that of George Nathaniel Curzon (not in fact an Irishman, even by domicile) upon being made Viceroy of India in 1898 - in this way he was able to clothe himself in appropriate dignity for his office while not depriving him of the possibility of returning to politics as a member of the House of Commons. But most Irishmen who were ennobled between 1800 and 1922 became peers of the United Kingdom. For the sake of completeness it should also be noted that a small number of Irish peerages were conferred both before and after the Union on other persons with no connection with Ireland whom for one reason or another it was desired to ennoble without giving them the right to sit in the House of Lords.
In 1922 by virtue of the Anglo-Irish Treaty of 6 December 1921, which was given effect by the Irish Free State (Agreement) Act, 1921, the greater part of Ireland ceased to be part of the United Kingdom and was granted dominion status under the title of the Irish Free State. That legislation allowed the Parliament of Northern Ireland created by the Government of Ireland Act 1920 to resolve that Northern Ireland would not become part of the Irish Free State. It duly did so and as a consequence remained in the United Kingdom.
None of the legislation under which Northern Ireland and the Irish Free State were established contained any provision relating to the position of the Irish peers nor were they mentioned in the debates in Parliament on these measures. However, the legislation abolished offices such as Lord Chancellor of Ireland and Clerk of the Crown in Ireland who were charged by the Act of Union and other legislation to carry out certain duties in connection with the election of Irish representative peers. In 1925 the Government was advised by its Attorney General Sir Douglas Hogg that this evinced an intention to terminate the right of the Irish peers to elect representative peers to fill vacancies as they arose. Although Lord Oranmore and Browne had obtained an opinion from two leading members of the Bar, F H Maugham, the future Lord Chancellor,
and Wilfred Greene, the future Master of the Rolls, that the right of the Irish peers to elect representative peers had survived and was unassailable, the matter was not pressed. The existing Irish representative peers continued to be summoned to sit in the House of Lords until the last survivor, the Earl of Kilmorey, died in 1961. It may be that they feared that if they pressed the question of their right to fill vacancies in their number, the right of the existing peers to go on sitting would be challenged.
Around the time of Lord Kilmorey's death an Irish Peers Association was founded by Lord Dunboyne. It was representative of the 145 peers of Ireland about half of whom also held peerages of Great Britain or of the United Kingdom and were in that capacity entitled to sit in the House of Lords.
As well as holding a number of glittering social gatherings the Association campaigned for the restoration of the right of the Irish peers to be represented in the House of Lords. This claim was considered by the Joint Committee on House of Lords Reform which reported in 1962 expressing themselves as 'not in favour of the revival of any form of representation for the peerage of Ireland in the House of Lords.' The Peerage Act 1963 gave all peers of Scotland a right to sit in the House of Lords instead of requiring them to elect certain of their number for each session of Parliament as had been the situation since the Union with Scotland in 1707. But no similar measure was introduced for the peers of Ireland. An amendment moved in the House of Lords to restore the previous rights of the Irish peers was defeated by 90 votes to eight.
In 1965 a number of Irish peers led by the Earl of Antrim petitioned the House of Lords for the recognition of their right to elect 28 representative peers to sit in the House of Lords.
The matter was referred to the Committee for Privileges, a mixed body of lay peers and law lords. It conducted hearings over several days before stating its conclusion that the provisions of the Union with Ireland Act 1800, by virtue of which 28 Irish representative peers were elected by the peers of Ireland to sit in the House of Lords had ceased to be effective on the passage of the Irish Free State (Agreement) Act 1922 and the establishment of the Irish Free State.
Lord Reid, a law lord, delivered the opinion with which most of the members of the Committee expressed their agreement. He rejected the argument made on, behalf of the petitioners that as the Irish representative peers represented the peers of Ireland and not Ireland itself, any change in the status of Ireland was irrelevant to their rights. It was, he pointed out, stated in the Act of Union that Irish representative peers were to be elected to sit 'on the part of
Ireland...'; as a result of the creation of the Irish Free State consisting of the 26 counties of Southern Ireland, Ireland as a whole no longer existed politically. Lord Reid expressed himself unable to see how there could be an election to represent something which no longer existed politically. 'A statutory provision,' he concluded, 'is impliedly repealed if a later enactment brings to an end a state of things the continuance of which is essential for its operation.' Lord Dilhorne, the former Lord Chancellor, delivered an opinion that was substantially similar to that of Lord Reid.
The other major opinion in the case was delivered by Lord Wilberforce, another law lord. He expressed doubts that 'an Act of such constitutional significance as the Union with Ireland Act could be repealed by implication or obsolescence, all the more when the effects are claimed to result from the later legislation which could have brought them about by express enactment.' He pointed out that the abolition of the office of Lord Chancellor and other offices designated by the Union with Ireland Act to perform acts in connection with the election of Irish representative peers made it impossible to follow the procedures laid down in the Union with Ireland Act for their election. 'The mode whereby alone the presence
of the Irish peers in your Lordships' House could be brought was', he concluded, 'removed in 1922 and could only be restored by fresh legislation.' Lord Reid, for his part, was clearly not convinced by Lord Wilberforce's reasoning that the removal of the machinery of election could abrogate the rights of the Irish peers as he stated that if he could have held
that the Irish representative peers were representatives of the Irish peerage he would not have found it possible to say that any right of the Irish peerage to be represented in the House of Lords had lapsed or been repealed.
The conclusions of the Committee for Privileges were endorsed by resolution of the House of Lords in 1966. But the opinions delivered in the Committee were criticised both in the House of Lords and by other lawyers. The fact that Lord Reid and Lord Wilberforce both rejected the other's reasons for rejecting the petition did not inspire confidence in the conclusion. Suggestions were made that the law was used as a cloak for a decision of a nakedly political nature. There were undoubtedly reasons that might be categorised as political rather than legal for rejecting the petition. At the time the Peerage Act 1963 was enacted a clear decision of policy had been taken to exclude the Irish peers entirely from the House of Lords. Although as a matter of law it was not relevant, the fact that the Irish peers had done nothing to assert their rights for over 40 years during which these rights were denied cannot have won them much sympathy. It was possible that if another category of hereditary peers were added to the House of Lords, critics of the hereditary principle might have renewed their attacks on it. In so far as it involved representation of Ireland in the Parliament of the United Kingdom, the restoration of the rights of the Irish peers could have provoked tiresome protests from the Irish Government. While none of these considerations was mentioned by the Committee for Privileges or would have been proper for consideration by it, they formed a background against which there would have been an inclination to favour an interpretation of the law which resulted in the rejection of the petition. Lawyers proceed in this kind of way more often than they admit. It is often expressed by saying that they have had regard to the merits of the case rather than the strict letter of the law. But when this is done, it leaves behind an impression that the law has not been applied objectively.
A highly unsatisfactory aspect of the proceedings was that the issue was decided without consideration of the relevance of the continued existence of part of Ireland now called Northern Ireland in the United Kingdom and of the related argument that the Irish representative peers might be elected to sit on the part of Northern Ireland. This was the basis on which F H Maugham and Wilfred Greene had advised that the rights of the Irish peers had not been abrogated by the creation of the Irish Free State outside the United Kingdom. The reason it was not put forward, which had never been publicly explained, was that leading counsel for the petitioning Irish peers was convinced that the members of the Committee for Privileges were with him on what he considered was his best argument and did not want to alienate them by introducing another point. In this case the crude wisdom of the common law advocate that you should stick to your best point served his clients
badly - if only because the best point was not made. If it had been accepted that the Irish peers sat on the part of Northern Ireland, the difficulties raised in Lord Wilberforce's opinion about the machinery for election would have dissolved as there were successors in Northern Ireland for all the officers and offices charged in the Act of Union and subsequent legislation to take steps in connection with the election of Irish representative peers.
It was possible that another group of Irish peers who had not been party to the earlier petition would have presented a further petition and resisted the application of the precedent in the earlier case on the basis that a relevant argument had not been considered. To prevent this happening the Government included the provisions of the Act of Union relating to the Irish peers among the measures to be repealed in the Statute Law Repeals Bill 1971. As a rule Statute Law Repeals bills confine themselves to obsolete provisions which are never likely to be invoked in any future case. An Irish peer who sat in the House of Lords by virtue of having a United Kingdom peerage, Viscount Massereene and Ferrard, protested against the abrogation of the rights of Irish peers 'in the midst of this little ragbag of a Bill taken on the afternoon of Gold Cup in the midst of Ascot Week.' He pointed out that 'by some extraordinary oversight', which he was pleased to describe as typically
Irish, the argument accepted by F H Maugham and Wilfred Greene in favour of the right of the Irish peers had not been put at the hearing of the earlier petition. He was supported by the Earl of Cork and Orrery, a British as well as as an Irish peer, and Lord Moyne, a United Kingdom peer and a member of the Guinness family with a residence in Ireland. The Lord Chancellor Lord Hailsham
opposed the motion proposed by Lord Masserene to remove the provisions about the Irish peers from the Statute Law Repeals Bill. He displayed an imperfect knowledge of the legal literature critical of the opinion of the Committee for Privilages on the 1965 petition when he remarked that he did not know anybody who had subsequently agreed with the opinion expressed by Maugham and Greene in 1924. He quoted with relish from the advice given by his father Sir Douglas Hogg to the Government in answer to the Maugham-Greene opinion. The opinion focused on the fact that Northern Ireland remained in the United Kingdom because the right given to her to vote herself out of the Irish Free State under the Anglo-Irish Treaty and concluded that this right did not give her a right to be represented in the House of Lords. Suffice to state that it was a line of reasoning never subsequently advanced against the claims of the Irish peers. Sir Douglas Hogg's opinion did not address the Maugham-Greene argument that in the absence of an express provision Northern Ireland should succeed to the rights of Ireland as a whole. When the matter was put to a vote, Lord Masserene's amendment was defeated by 100 votes to 12. Out of over 70 Irish peers who were entitled to sit in the House of Lords and who would have been entitled to vote in an election for Irish representative peers only six bothered to attend to take part in the division and one of these, Lord Carrington, a member of the Government, voted against the amendment.
It might fairly have been assumed that this would have brought the issue of the Irish peers to an end. However, in 1991 Andrew Turek, a solicitor in the Treasury Solicitor's Department, published an article in a personal capacity in the Cambridge Law Journal entitled 'The Irish Peerage: A Modest Proposal'. It was his contention that if, as Lord Reid had argued, the right of the Irish peers to elect representatives to sit on the part of Ireland lapsed because the Irish Free State came into existence, so logically should the right of the existing representative peers to sit. He invoked the doctrine of barony by writ, 'the masterpiece of Lord Coke's fertile imagination', the effect of which is that any person who is not entitled to receive a writ of summons to the House of Lords does so and takes his seat in obedience thereto, he becomes a baron by writ, that is to say there is created in that person an hereditary peerage in the degree of baron descendible to the heirs general of his body.
Acting on the basis of the arguments put forward in this article, Lord Farnham, the 12th holder of the Barony of Farnham in the peerage of Ireland, petitioned to be permitted to sit as heir to his grandfather who, he argued, had been created a baron by writ because he had sat as an Irish representative peer after the creation of the Irish Free State. The matter was referred to the Committee for Privileges, which heard arguments on 21 and 22 March 1995. The Attorney General Sir Nicholas Lyell appeared for the Government and declared that after very careful analysis and consideration the Crown's position was not one of opposition to the principle that a writ, even if passed by mistake, will, if followed by a sitting in pursuance to it, create a barony in fee. The opposition of the Attorney General to the petition was therefore concentrated on the contention in it that the Irish representative peers had not been entitled to receive a writ of summons after the Irish Free State came into existence. He pointed out that the Irish representative peers were elected to sit for life on the part of Ireland and argued that the right of those already elected to sit for life
was not affected just because there had been an implied repeal of the right to elect further representative peers. The Committee accepted this argument. Opinions were delivered by Lord Keith of Kinkel and Lord Jauncey of Tullichettle, both Scottish law lords. They emphasised that the Irish representative peers had been elected for life and declined to give the statement in the same sentence that they sat on the part of Ireland precedence over the statement that they sat for life. Lord Jauncey justified this approach because he could
not believe that in 1800 it was contemplated that there would ever be a time when Ireland did not exist as a political entity as the Act of Union was stated to be 'for ever'. He said it was inconceivable that so important a constitutional right should have been removed from the Irish representative peers by implication when there was every opportunity to achieve the result by express provision.
The arguments made in the opinions delivered in the Committee of Privileges on Lord Farnham's petition, while not totally unsupportable, are less than compelling. If, as was the basis of the opinion of the majority of the Committee on the Earl of Antrim's petition, Ireland had been deprived of its right of representation by the creation of the Irish Free State, it was anomalous that those representative peers sitting on the part of Ireland should continue to sit in the Parliament of the United Kingdom. It was peculiar to have interpreted a provision in the Act of Union of 1800 on the basis that those drafting it expected the Union to last for ever when applying it to circumstances where it had not so lasted but had been substantially amended by the creation of the Irish Free State. It was productive of inconsistency to invoke the general principle that the constitution of Parliament may not be changed by implied repeal when that principle had been disregarded in relation to the very same provision in order to dismiss the Irish peers' petition. It is clear that Lord Jauncey of Tullichettle was not happy with the reasoning of Lord Reid in the earlier case with which the majority of the committee who heard that petition had agreed. This must reinforce misgivings already expressed about the outcome of the Irish peers' petition and the feeling that the Irish peers did not get a fair crack of the whip on that occasion.
In his petition Lord Farnham faced the difficulty that his invocation of the ancient doctrine of barony by writ had little appeal on the merits. The idea that a person who receives a writ of summons to the House of Lords as a result of a mistake should ipso facto be created a hereditary peer is repugnant to common sense. It was predictable that the Committee for Privileges would seek an interpretation of the law that would enable it to reject the petition if this could be found. That they were able to decide the case on the basis of the right of existing Irish representative peers to sit in the House of Lords after 1922 enabled them to avoid much more difficult and complicated issues of peerage law on which the Attorney General was not prepared to contest Lord Farnham's petition. As a result, the engaging argument also made by Mr Turek that certain life peeresses have become hereditary peeresses because they received writs of summons in error between 1957 and 1963 remains open. Women no less than the Irish are a section of the population who feel they have been put upon in the past. With this argument and proposals that have been made in the House of Lords to alter the devolution of peerages so that they descend to the eldest child rather than the eldest male child, they seem set to take over the mantle of the Irish in challenging the composition of the House of Lords.