The UK Parliament has published a 'Letter to Viscount Monckton of Brenchley from David Beamish, the Clerk of the Parliaments' [PDF]
The letter states -
My predecessor, Sir Michael Pownall, wrote to you on 21 July 2010, and again on 30 July 2010, asking that you cease claiming to be a Member of the House of Lords, either directly or by implication. It has been drawn to my attention that you continue to make such claims.Ouch.
In particular, I have listened to your recent interview with Mr Adam Spencer on Australian radio. In response to the direct question, whether or not you were a Member of the House of Lords, you said "Yes, but without the right to sit or vote". You later repeated, "I am a Member of the House".
I must repeat my predecessor's statement that you are not and have never been a Member of the House of Lords. Your assertion that you are a Member, but without the right to sit or vote, is a contradiction in terms. No-one denies that you are, by virtue of your letters Patent, a Peer. That is an entirely separate issue to membership of the House. This is borne out by the recent judgment in Baron Mereworth v Ministry of Justice (Crown Office) where Mr Justice Lewison stated:In my judgment, the reference [in the House of Lords Act 1999] to 'a member of the House of Lords' is simply a reference to the right to sit and vote in that House ... 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.I must therefore again ask that you desist from claiming to be a Member of the House of Lords, either directly or by implication, and also that you desist from claiming to be a Member "without the right to sit or vote".
I am publishing this letter on the parliamentary website so that anybody who wishes to check whether you are a Member of the House of Lords can view this official confirmation that you are not.
The Court in Mereworth v Ministry of Justice [2011] EWHC 1589 (Ch), cited by Beamish, notes that in 2002 -
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.Lewison J went on to state that -
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 ...
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.
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. ...A perspective on the Osorio case is provided by Yofi Tirosh in 'A Name of One'S Own: Gender and Symbolic Legal Personhood in the European Court of Human Rights'[PDF] 33 Harvard Journal of Law & Gender (2010) 247-307.
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.
In Osorio the European Court of Human Rights -
discussed jointly the applications of four Spanish women. All four were the oldest daughters in their family whose parent or relative passed away and left a nobility title for which they would have been next in the order of succession had they not been women. According to the Spanish law of title succession, these women were skipped over in the succession line because their younger brothers, being male, had priority over them. ...Tirosh comments that -
At the ECHR, the Applicants claimed that the ruling [by Spain's Constitutional Court] interfered with their family life in violation of Article 8 and constituted discrimination by denying them enjoyment of this right. In establishing their claim that Spain violated their right to respect for private and family life, the Applicants argued that "nobiliary titles constituted the heritage of their lineage’s honour and a blood tie with their ascendants, and that they had been deprived of those attributes solely because they were females, not males." The ECHR rejected this claim, accepting Spain’s argument that "[i]dentity with a family was expressed through the surname and not through a nobiliary title."
Nobility titles, then, do not fall within the scope of Article 8’s protection. Not finding any violation of Article 8, the Court did not examine the discrimination question, since Article 14 protects only the equal enjoyment of rights guaranteed in the Convention. The discussion in Spain’s Constitutional Court illuminates the examination of women’s access to "name longevity." The Constitutional Court described peerage as a historical relic, which may have played a role in the legal, social, and financial status of people in the past, but today had a "purely symbolic value," merely honorary nature, lacking "any substantive content within our legal order." The Applicants, on the other hand, described the titles as not merely honorary in function, but of "pecuniary value, in the form of, for example, social advantages and increased prestige. Furthermore, assets, especially immovable property, from the family estate, frequently reverted in accordance with custom to the holder of the peerage."
The Court’s reasoning for why prioritizing males is not discriminatory revolves around the impossibility of imposing current principles of equality on a cultural phenomenon that originated in unequal times and reflects unequal hierarchies and value systems. "[T]he social and legal values enshrined in our Constitution ... would necessarily come into play if the legal distinction [between men and women] had a substantive content, which it certainly does not here." Had those titles carried more than symbolic value, or had they any actual legal or material implications, promises the Court, they would have been deemed unconstitutional. ...He notes the Constitutional Court's analysis that -
At the ECHR proceedings, the Applicants argued that the discriminatory succession rule violated their dignity. The Government [responded][I]t would be unacceptable for one group of people to be considered more dignified than others as a result of pure biological accident. Peerages could not be accepted within society unless they were seen purely as 'nomina honoris' belonging to a 'residual institution' of the Old Regime whose recognition by some States was due solely to the fact that they were an historic institution. It would be contrary to the principle of the universality and equality of human rights to regard enjoyment of a nobiliary title as a right to respect for private and family life.
If the nobiliary title is not discriminatory and, therefore, not unconstitutional, the precedence [given to the male over the female line] is not either. In other words, since it is accepted that peerages are consistent with the Constitution owing to their purely honorary nature and their purpose, which is to keep alive the historic memory of their grant, a specific element of that institution — the rules governing their transmission on death—cannot be regarded as being exempt from the conditions laid down in the royal charter of grants.before commenting that -
Recapitulating this argument somewhat grossly, the Court held that nobility titles are insignificant, they are just titles, and thus it is legitimate to pass them on unequally. And since they don't matter, women shouldn't care about inheriting them.
But titles matter. Even if they matter only as 'nomina honoris' as the Spanish Court itself recognizes, then women should have equal access to whatever meaning and function this honorary name has in Spanish society. The entrance of women into this system of honor would, in the eyes of the Constitutional Court, drain titles of their viability and debilitate titles' ability to carry honor. For women are not of this system; their entrance into it, just like giving boys'’ names to girls, would erode the system by granting titles to those who cannot, are not made to, bear them stably and reliably across generations.
