Friday, 16 April 2010

Is all legislation passed since 2000 unlawful ?

The perhaps surprising proposition that all legislation passed since 2000 is unlawful is seriously argued by the Britannia Rules blog.  The argument is that the House of Lords Act 1999 did not amend the Letters Patent by which peers were appointed.  At this stage, I offer the link without further comment other than to say that, if it was to be legally correct, the consquences would be massive.

The creation of a peerage and the law of peerages is complex but most peerages have been created under the Royal Prerogative by issuing Letters Patent- see Bebretts.  [Also, FOIA and here].


  1. This comment has been removed by the author.

  2. This argument is a pipe dream. The very first section of the House of Lords Act reads:

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

    Some waffle about Letters Patent, passes and Baroness Ashton isn't going to override the plain text of an Act of Parliament.

    There was far stronger case that an Act of Parliament was invalid in Jackson v. Attorney General. On that occasion the Lords didn't buy it. Neither will the Supreme Court this time, should it go that far.

  3. I also think it is a "pipe-dream" on the part of some who disliked their ancient "droit de seigneur" being ended by the 1999 Act. For the legal argument countering the notion that legislation might be null and void, I cannot do better than refer the reader to:

    Head of Legal Blog

    which, in turn, links to an interesting podcast on the topic.

  4. The link between Letters Patent and the subsequent issuing of a Writ of Summons for a particular Parliament isn't as strong as some would like it.

    As well as the mad, the bad and the young, Writs were not issued to Peers in Crown Service, for example. As I suggested elsewhere, s1 could have plausibly been written;

    "No-one shall receive a Writ of Summons to attend the House of Lords by virtue of a hereditary peerage."

  5. It's an interesting argument. Although, I'm not sure how the author gets from the invalidity of the 1999 Act to all subsequent Acts being invalid. I'm pretty sure that the Supreme Court would rule along the lines that the Act does specifically exclude all herditary members because Parliaments intention as to who should and should not be excluded is very clear. I suspect they would go on to say that a specific exclusion does not require a list of names provided everybody affected by it can be clearly identified.

    Further, even if the Act was invalid, I doubt very much that the Supreme Court would rule it as such and strike down it or any subsequent Act given that it has no such power.

  6. I do not think they are arguing that the 1999 Act is somehow invalid. It plainly could not be since it was enacted by a parliament which included the hereditary peers.

    The argument that subsequent Acts are somehow invalid can be disposed of by 4 points:

    1. Parliament is Sovereign and, as such, is entitled to alter its membership and procedures. The House of Lords Act 1999 removed membership of the House of Lords from all but 92 hereditary peers.

    2. Peers attended (and still attend) the Lords by virtue of a "Writ of Summons" and not by virtue of their peerage - see The Earldom of Norfolk [1907] AC 10 at pp 12, 13 and 17-18.

    3. Since the 1999 Act, writs of summons have not issued to hereditary peers apart from the 92 who are elected by the hereditary peers.

    4. The courts do not look into questions of who was present or how parliament conducted its business when enacting legislation. This "enrolled bill" rule is very long-standing law but was affirmed by the judicial House of Lords in British Rail v Pickin 1974.


    Writs of summons are interesting and rather obscure. Interestingly, there is some legal authority that if a person who is not already a peer receives and sits in response to a writ then he becomes a peer de facto even perhaps if the writ was issued in error - see:-

    The Hastings Peerage (1840) 8 Cl & Fin 144

    The Barony of Grey of Codnor (1989) HLP 59-I

    The Barony of Strange (1737)

    Cruise on Dignities - 2nd Edition

    Much as part of me likes this antiquated and arcane stuff, it probably is time that it was all consigned to history.

    As a principle, hereditary rights to make law should no longer exist though I would be among the first to acknowledge that many hereditary peers have done a first-class job and, in recent times, they have often stood up for liberty where our elected Commons has sought to reduce it.