By Lord Monckton
It was 6am in Sydney. At my hotel bedside, the telephone rang. It said, “I’m Adam Spencer of the ABC, and you’re on the air. Are you a member of the House of Lords?”
I was in Australia to debate not the hereditary peerage but the climate, in an hour-long live prime-time programme from the Press Club in Canberra on ABC1, networked throughout the land and repeated twice. One was delighted to find such interest in the arcana of peerage law Down Under. But my antennae twitched. I replied: “Yes, but without the right to sit or vote.”
Spencer was audibly disconcerted by my brevity. Clunkily, he changed tack. “What about the recently-reported loss of 273 billion tons of ice from Greenland since 2005?”
“And how much,” I replied, “would global sea level rise if you melted 273 billion tons of ice into it? 0.7 millimetres.”
Spencer had not done his homework. But I sensed a plot. Sure enough, the morning of the debate a journalist rang for my comments on a letter at parliament.uk by one Beamish, Clerk of the Parliaments, citing my answer to Spencer and telling me not to call myself a member of the House of Lords. From the climate extremists’ point of view, the timing was perfect.
During the debate, a journalist sneered that since the House had disavowed me he was not sure he ought to call me ‘Lord Monckton’. I said the House had not disavowed me. Hansard was silent on the matter. At my request, the chairman read out from my passport the words “The holder is The Right Honourable Christopher Walter, Viscount Monckton of Brenchley.”
That silenced the journalist. But hundreds of articles appeared worldwide calling me a charlatan for making myself out to be what I am. The previous year ‘Democrats’ in the U.S. Congress, also hoping to discredit testimony by me on climate change, had likewise questioned my assertion that I was a member of the House. It was time to question it myself. Back in London I gave Hugh O’Donoghue, a barrister specialising in constitutional law, the briefest brief ever: “Am I a member of the House of Lords?”
Three months later, Counsel delivered a fascinating Opinion of some length, reviewing 1,000 years of law and history. The crowning section on the rule of law is worth citing in full: “As with natural law of old, it is not possible to formulate a simple and clear-cut statement of the rule of law as a broad political doctrine. However, as with natural law, the rule of law has acquired a mantric power far beyond its cogency. Crucially though, the idea of the rule, though undefined, takes pride of place in the Constitution Reform Act 2005. Section 1 states that the 2005 Act –‘does not adversely affect the existing constitutional principle of the rule of law, or the Lord Chancellor’s existing constitutional role in relation to that principle.'”
This is a first in UK legal history.
Lord Bingham, in a recent lecture on the rule of law, says that the principle, now that it is embedded in a statute, cannot any longer be dismissed as mere meaningless verbiage or as the jurisprudential equivalent of motherhood and apple pie.
Quite so: the courts, in the presence of a statutory mention and in the absence of a statutory meaning, may yet have to construe the term ‘rule of law’. It is at the very least possible that they will construe it in favour of curtailing the executive power of government: for limitation on the unbridled abuse of governmental power is an idea central to the notion of the rule of law. In the words of Lord Denning: “Be you never so high, the law is above you.”
Lord Bingham said: “It is perhaps more likely that the authors of the 2005 Act recognised the extreme difficulty of formulating a succinct and accurate definition suitable for inclusion in a statute, and preferred to leave the task to the courts if and when the occasion arose.”
Actually His Lordship took the argument further, suggesting in the same lecture that the judges ‘in their role as journeymen judgment-makers’ would be bound to construe a statute so that it did not infringe an existing constitutional principle. We may be allowed to wonder, then, whether the courts are also bound to strike down any statute that derogates from an existing constitutional principle such as the primary one that the government of the UK is carried out by Monarch, Lords and Commons.
In this context, widely understood overseas but new to the United Kingdom, it is legitimate to argue that the Act, and in particular sections 1 and 7, are unconstitutional and repugnant to the ancient mores, customs, laws and usages of the Realm as well as contrary to the rule of law, in that the offending sections constitute or perpetrate a violation of the rights of Peers and their successors vested in them by Royal Letters Patent in perpetuity since time immemorial, and a violation of the personal rights and titles of the excluded Hereditary Peers. Indeed, it might legitimately be argued that the Act, having failed to revoke the Letters Patent that fully permit Lord Monckton to assert that he is a member of the House of Lords, has also failed lawfully to extinguish his right to sit and vote.
Even if the Act is to be regarded as valid, it did not and does not take away membership of the House of Lords in its wider sense from the excluded Hereditary Peers. Lord Monckton and his fellow excluded Hereditary Peers remain members of the House.
If Counsel is right, the hereditary peerage matters more than many of us realise, for we are not only members of the House but arguably still entitled to sit and vote there. No surprise, then, that the Committee of Privileges and the ‘Lord Speaker’, to each of whom I wrote by recorded delivery demanding that Beamish’s letter be taken down or Counsel’s conclusion posted up alongside it, were too ashamed even to reply.
Counsel’s Opinion is really a summary of why the hereditary peerage matters. The House of Lords Act 1999 (assuming that it was constitutional at all) left all the status, powers, rights and privileges of the hereditary peers intact, save only its “temporary and provisional” removal of the right to sit and vote.
Indeed, for ten years the excluded hereditary peers were issued with passes allowing them to use the facilities of the House, indicating that the House authorities themselves recognized the outcasts as members.
Hereditary peers, like bankrupt peers (who, significantly, remained members of the House though they could not sit or vote, and had the disqualification to sit lifted once the bankruptcy was discharged) remain free from arrest for debt. “Mutatis mutandis,” says Counsel, “the disqualification from sitting and voting cannot be seen as in any way restraining any excluded Hereditary Peer from saying that he is a member of the House of Lords, for that is precisely what he is.”
Notwithstanding the 1999 Act, the House of Lords remains a Council of the Crown.Their Lordships have never been summoned in this capacity since 1688, but their historical rights are preserved in two ways. First, the writ of summons is a call to ‘treat and give counsel’.
Secondly, it is the privilege of each individual Peer to have audience of the Sovereign. I have not yet used this right, but if – for instance – I became aware of a mortal threat to the United Kingdom and could not get the authorities to take me seriously, I should exercise that right without hesitation, knowing that once Her Majesty was convinced of the facts she would insist that a closer look be taken.
The intellectually insubstantial Blair administration tampered with a millennium of history and precedent in bringing to an end the legislative power of hereditary peers – and tampered without any idea who or what would replace us.
The hereditary peer is his own man, beholden to no vested interest. Upon the death of his father, he takes his seat sober and sorrowful, not glorying vainly in the result of an election that is usually a demonstration more of tribal loyalty than of any personal endorsement by the voters. He is unlikely to have been a career politician.
The hereditary peers have often prevented the ‘elective dictatorship’ of the Commons from inflicting tyrannous laws on the people.
When my late beloved father and hundreds of his peers were expelled from the House, the staff wept openly. They knew the character of the House would change – and change for the worse. They knew the House worked. It was not broken. It did not need fixing. But Blair tampered anyway, aided by the treachery of a Tory peer plotting with the Labour party to save his own wobbly backside while tossing a glittering millennium of service into the Thames. However, our exclusion from the House is only ‘temporary and provisional’. To paraphrase Arnold Schwarzenegger, “We’ll be back.”