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Title: The Irish Peerage: A Modest Proposal

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Editorial Committee of the Cambridge Law Journal

The Irish Peerage: A Modest Proposal
Author(s): Andrew Turek
Source: The Cambridge Law Journal, Vol. 50, No. 2 (Jul., 1991), pp. 347-353
Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law
Journal

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LawJournal,
50(2),July1991,pp.347-353
Cambridge
Printed
in GreatBritain

THE

IRISH

PEERAGE:
Andrew

A MODEST

PROPOSAL

Turek*

writer considered
the process
In a previous
article1, the present
into
House
of
and
were
admitted
the
Lords
concluded
ladies
whereby
Act 1958 had, intentionally
that the draftsman of the Life Peerages
or otherwise,
made a hereditary
peeress of every life peeress who
was made2
has taken her seat. In that article a cursory mention
to
revive
their
of the Irish peers and their unsuccessful
attempt
but
more
careful
in
the
House
of
consideration
Lords;
representation
of their

that their exclusion
has suggested
may not be as
position
final as some writers on the subject3 have hitherto assumed.
The outline of the story is soon told. Before the Union the Irish
in the House of Lords of the Parliament
of
peers sat, of course,
of Union it
Ireland. By the Treaty and Acts (one in each Kingdom)
was laid down that they were to elect twenty-eight
of their number
of Lords; whether
who would sit in the House
they and their
of the Irish peerage,
or of Ireland,
sat as representatives
successors
or "on the part of Ireland" was later to be the subject of long and
learned debate. As each of those peers died the Irish peers were to
elect a successor;
there was never again to be a wholesale
election
such as was held at the beginning of each Parliament
until the Peerage
Act 1963 by the peers of Scotland. A representative
peer upon whom
was conferred or who inherited a peerage of England,
Great Britain,
or the United Kingdom did not thereby cease to be a representative
in fact nothing but
peer and such an event did not cause an election;
forfeiture
or
never
death,
(which
happened)
by a later statute4
could
vacate
the
seat
an
of
Irish representative
bankruptcy (which did)
peer, at least while the Union lasted.
That was until 6 December
1922 when the twenty-six
counties
which now form the Irish Republic
ceased to be part of the United

1

Solicitor;memberof the TreasurySolicitor'sDepartment.I am gratefulto the Departmentfor
permissionto publishthis article;the viewsexpressedin it are mine and I am solely responsible
for its contents.
"Ladiesfor Life or WhoSits Where?"[1990]C.L.J. 334.
At note 30.
See, for example,HalsburysLawsof England,4th ed., vol. 34, para 1040;Wadeand Bradley,
Constitutional
andAdministrative
Law (10thed. 1985,p. 146.
Act 1871.
BankruptcyDisqualification
347

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The Cambridge

348

the Irish Free State5.

and became

Kingdom

Law Journal

[1991]

At the time there

were

Irish peers who had been previously
chosen, the most
twenty-eight
recent vacancy having been filled in 1920. Those twenty-eight
peers
continued
lives to receive writs of summons
during their respective
in a special form (the origin of which has eluded the writer) but as
they died (starting with the Earl of Bandon6 in 1924) no successors
and their numbers dwindled.
The last to die was the
were elected
Earl of Kilmorey in January 1961.
The Irish peers, especially such of them as lived within the grasp
were left in a sorry condition.
of the Chancellor
of the Exchequer,
They could neither sit in the House of Lords nor elect representatives
to it; they could seek election to the House of Commons
but only
for
a
seat
the
Act
in
Great
and
until
Britain;
(until
1963)
Peerage
that Act they could not even vote unless they happened
to be
Members.

They

were,

they

might

feel,

the

subjects

of taxation

without

representation.
In 1965 the Earl of Antrim and eleven other Irish peers presented
to the House of Lords, which was duly referred to the
a petition
Committee
for Privileges.7
By their Case, they submitted that those
of the Act of Union which were still then extant required
provisions
the representation
of the Irish peers by twenty-eight
of their number
and that without such representation
Parliament
was not properly
as bold a claim, it may be thought, as ever litigant put
constituted;
forward.

They went on to recite their view of the position under the
in
of the Lord Chancellor
(which was that the functions
connection
with the elections
had been transferred to the Governor
of Northern
Ireland), and to submit that their right to representation
statutes

was a fundamental

of the extant provisions
objective
not be frustrated by any lack of
formal and ancillary means to secure its exercise.
They therefore
asked the House of Lords to affirm and provide by all necessary
means for the rightful representation
of the peers of Ireland by
of the Act

of Union

constitutional
which

should

Irish peers.
twenty-eight
Most of the submissions
and of the speeches
of the Law Lords
Viscount
Lord
and
concern the
Reid,
Dilhorne,
(Lord
Wilberforce)
whether
the
constitutional
of
1922
had, as the
question
changes
Solicitor-General
the
contended,
abrogated
machinery by which the
election
we

of representative
peers had taken place; with that question
here concerned.
was whether
The wider question
the

are not

IrishFree State (Agreement)Act 1922, IrishFree State ConstitutionAct 1922, and IrishFree
State (ConsequentialProvisions)Act 1922.
On the death of the Earlof Bandon.LordOranmoreand Browneobtainedthe opinionof two
of the most eminentcounselof the day (F.H. Maughhamand W.A. Greene)on the question
of the Irishrepresentativepeerage;it is set out in extensoin [1967JPublicLaw314-322.
[1967]A.C. 691; the proceedingsare reportedverbatimin HL 53 of 1966/67.

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C.L.J.

TheIrish Peerage:A ModestProposal

349

eventsof 1922 had put an end to the right of the Irishpeers to elect
twenty-eightof their number to sit in the House of Lords and
this raised the question whether the peers so chosen had sat as
representativesof the Irishpeers, or "on the part of Ireland",on in
some other and what capacity.
The report of the Committeewas (apart from its opinion on the
''machinerypoint") that the peers previouslyelected had sat "on the
partof Ireland"and that since 6 December 1922there was no longer
any such political entity so that the statutory provisions whereby
elections had taken place had been impliedlyrepealed. Lord Reid
said8that
As a result of these changes . . . lreland as a whole no longer
exists politically * . . So if the Irish representativepeers were
elected to representIrelandI cannot see how there could now
be an election to represent something which no longer exists
politically. A statutoryprovisionbecomes obsolete if the state
of things on which its existence dependedhas ceased to exist so
that its object is no longer attainable. Or putting it in another
way, a statutoryprovisionis virtuallyor impliedlyrepealedif a
later enactmentbnngs to an end a state of thlngsthe continuance
of whichis essentialfor its operation.On the otherhand,if I could
hold that-the Irishrepresentativepeers sat as representativesof
the Irish peerage I would not find it possible to say that any
right of the Irish peerage to be representedin this House had
lapsed or been repealed . . . Reading the articleof Union I am
of opinion that litsl purpose was that Irelansithe former
Kingdom of lreland should be representedin the House of
Lords . . . by Lords . . . Temporal [who] were to sit "on the
part of Ireland".
He concludedthat the statutoryprovisionsrelatingto the election
of Irish representativepeers had ceased to be effectiveon the passing
of the Irish Free State (Agreement)Act 1922.
Viscount Dilhorne agreed9that the peers were elected "on the
part of Ireland" and that after the Irish Free State and Northern
Ireland were created there was no territorycalled Ireland to be
represented in Parliament.There could be no further election of
Irish peers, which would have meant electing peers to representa
territorywhich had ceased to exist as a politicalentity; so that those
parts of the Act of Union which provided for those elections were
spent or obsolete or impliedlyrepealed in 1922. Lord Wilberforce
confined his remarksto the "machineryquestion"and expressedno
opinion on the "impliedrepeal", althoughhe was reluctantto hold
that an Act of such constitutionalsignificanceas the Act of Union
71S7.
9 p.719.

R pp.

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The Cambridge

350

Law Journal

[1991]

which could have
repealed
by later legislation
specific provisions to the same effect. Lord Morris of Borthy-Gest and the lay peers all agreed with Lord Reid.
With this report the House agreed10 on 24 November
1966; and
election of
all the provisions
relating to the original and subsequent

could

be impliedly

included

representative
peers, from the Act of Union on, were swept away
and was
Act 1971 which seemed
Law (Repeals)
by the Statute
intended
to put the last nail in the coffin of Irish
presumably
in the House of Lords, except,
naturally,
by those
representation
Irish peers who also have other peerages.
before the Committee
the fact that the
During the submissions
survivors of the old regime had continued
twenty-eight
writs of summons was only once briefly mentioned,
namely
for the petitioners
Morris, Q.C.) who said:11
(G.R.F.

to receive
by counsel

did not exist in
If the right [of the Irish peers to be represented]
1955 Lord Kilmorey would have had no title at all to be a Lord
was
. . . One would say that Lord Kilmorey
of Parliament
a lawful
in this House unless he represented
unlawfully embodied
that
. . . existing electorate.
of course, has suggested
Nobody,
than perfectly
his title to the writ of summons . . . was otherwise
in a
proper or that his title to sit as a Lord of Parliament
capacity was wrong.
representative
As will subsequently
may have
appear, Mr. Morris' final sentence
to a "representative
been right (except for his reference
capacity"),
but for the wrong reason.
The matter is not referred to in the speeches of the Law Lords at
all. This is not surprising;
the petition did not raise the question of
of
to representatives
the right of those particular peers (as opposed
to
academic
as
the Irish peerage in general)
sit which was obviously
in
the
of
the
ask
they were all dead. We may nevertheless
light
decision of the Committee
and the House by what right they continued
to sit. The Committee
reported that the statutes under which they
That being so, it
had been elected had been repealed by implication.
is difficult to see how the words in those statutes from which they
had derived their right to sit had not also been repealed.
The right
Irish peers to elect new representatives
on
formerly elected and the right of those so elected
the same statutory provisions
and appear to stand
This view is confirmed by careful reading ofthe
and in this connection
we may remind ourselves

ofthe

Rhondda's

Petition12

Viscount

Birkenhead

L.C.

the death

of those

to sit derive

from

or fall together.
statutes themselves
that in Viscountess
referred13 to "the

10Official
ReportHL, 5th Series,vol. 278, cols. 363-374.
11At
p. 13 of the HL paper;this passageis not adequatelysummarisedin the LawReports.
12
2 A.C. 339.
13[1922]
At p. 365.

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The Irish Peerage:

C.L.J.

A Modest

351

Proposal

the Legislature
has dealt with
care with which, whenever
meticulous
.
.
. it has expressed
its
in this House
the right or duty of attending
in
will upon the matter". This passage was cited14 to the Committee
to in the speeches
of the Law Lords
1966 but it is not referred
Lord Wilberforce
some
as previously
noted,
expressed
although,
that part of the Act of Union could be
unease about the proposition
dictum may be
the subject of implied repeal. But Lord Birkenhead's
applied to the Acts which created the rights of the Irish
helpfully
peerage as well as to those said to have abrogated them.
The fourth Article of Union provides that such Act as should be
passed by the Parliament of Ireland previous to the Union to regulate
the mode
be chosen
peers should
by which the representative
as forming part of the Treaty and should be
should be considered
in the Acts of the respective
Parliaments
by which it
incorporated
was to be ratified.

The Irish Parliament
passed such
in great detail how the original representative
successors
were to be chosen and it is recited in both
It laid down that the Irish temporal peers were to
of their number
time and place to elect twenty-eight
of the Lords Temporal so chosen shall be entitled to

an Act15 laying
peers and their

down

Acts of Union.
meet at a stated
and that "each
sit in the House

. . . during his life". Those
are strong words; but the
words
a
to
corresponding
referring
peer chosen to fill a vacancy are
a
Such
very different.
peer "shall during his life be one of the peers
to sit and vote on the part of Ireland in the House of Lords . . ." It
of Lords

will be remembered

that the Committee
decided
in 1966 that the
right of the Irish peers to elect from among their number had been
because
there was no longer such a
impliedly
repealed
precisely
political entity as Ireland on the part of which peers could be elected
or sit. The stronger words referring to the original twenty-eight
were
long since spent, and it is not to be assumed that the different words
were not intended
to have a different
referring to their successors
that the words "on the part of Ireland" were
effect, and specifically
mere verbiage.
however16,
(Not for the first time in this context,
some
slovenly

words
way"

drawn".)
It appears,
elected
House

before

of Sir W.S.
says the

Gilbert
Mikado,

"That's the
may seem apposite.
"in which these Acts are always

Irish peers
then, that the right of the twenty-eight
1922 to receive a writ of summons
and to sit in the

had been impliedly repealed,
although neither they nor those
them to be summoned
knew it; nor could they without
the benefit of the decision which the Committee
reached in 1966.

who caused

At p. 707;the full text cited to the Committeeappearson p. 55 of the HL Paper.
40 Geo. III. c. 29(Ir.)
See footnote37 to the previousarticle,[1990]C.L.J. 334.

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352

The Cambridge

Law Journal

[1991]

be the consequences
what they may, that that
We must conclude,
for Privileges in 1966 had the effect that
of the Committee
decision
there had been a handful
in a House of several hundred members
(few of whom were regular attenders) who had sat between 1922 and
1954 (in which year a barony of the United Kingdom was conferred
the last Irish representative
peer to sit
upon the Earl of Drogheda,
and vote in the House)
and should not have been allowed to; and
that until now nobody had noticed it. In any other legislative assembly
in the world there would be no consequences
beyond some mild
most
of
even
which
is
if,
unlikely, the presence of
eyebrows,
raising
had affected the result of any Division.
noblemen
But the House of Lords is not any other legislative assembly. The
like that of
in the House of these gentlemen,
effect of the presence
than
be determined
after them, cannot otherwise
the life peeresses
writ.
of
As
doctrine
the
to
barony by
extraordinary
by recourse

these

of
appears from the previous article, the effect of this masterpiece
not
who
is
if
is that
fertile imagination
Lord Coke's
any person
receives one and takes his seat
entitled to receive a writ nevertheless
in obedience
there

a baron by writ; that is to say,
he becomes
thereto,
in him a hereditary peerage in the degree of a baron
to the heirs general of his body (unlike an "ordinary"
created by Letters Patent which passes only to
peerage

is created

descendible
hereditary
and through

males) even if the writ was issued by mistake.
of course, is exactly what appears to have happened in this
The mistake was even helpfully set out in the writ itself
noted, purported to be issued in pursuance of
which, as previously
the recipient's
former election as an Irish representative
peer. Such
That,
instance.

be regarded as "bad on its face" and void,
that on proof of sitting and in the absence
of Letters Patent (and such would be the case here) a writ will be
that the sitting
from the sitting; or, to put it differently,
presumed
of
the
writ.
it
section
6
That
is,
Peerage Act
appears, why
proves the
a
if
which
1963 refers to "the instrument,
any" by
peerage is created;
to cover
intended
words
are
the last two apparently
incongruous
a writ may, indeed, even
but it is well established17

such as the Vaux barony which are regarded, in the absence
peerages
as having been created only by sitting
of any such extant document,
in the House of Lords. The result is the same whether the peers in
to have received invalid writs or valid writs
are considered
question
issued.
mistakenly
The peerages
so created
Irish

peerages
have
necessarily

which
held.

the

need

not,

gentlemen
Some of them

of course,
were

who

have

devolve

with the

summoned

become

17 VauxPeerage,5 Clark& Finnelly526.

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extinct

must
on the

The Irish Peerage:

C.L.J.

A Modest

Proposal

353

without issue of the former representative
peer although the
Irish peerage
has passed to collaterals,
and others have passed to a
or into abeyance
daughter
among daughters and their issue, which
could not do.
the Irish peerages
As it appeared
during the hearing in 1966 that the procedure

death

when a claim to an Irish peerage was established
was altered
from
the
Irish
it should
Government
representations
not
be
that
the
writer
does
stressed
present
suggest that
perhaps
of Irish peers (the last Irish peerage
there has been any creation
created was the barony of Curzon in 1898) or any revival of the right

followed

in 1949 to meet

of the

Irish

in the House of Lords. The
peers to be represented
that
new
is, rather,
suggestion
peerages of the United Kingdom have
been created in favour of certain persons who were already peers of
Ireland.
Who

are these peers? On 6 December
1922 when the statutory
in
were (according
to the Committee)
repealed
provisions
question
there were twenty-eight
Irish representative
peers; but one of them
Curzon) had after his election been created a peer of the
(Marquess
United Kingdom and may be excluded from consideration
(although
to receive a writ in the form previously
it appears that he continued
issued to representative
peers until his death). Three of the others
(the Earls of Kingston and Bandon and Lord Crofton) never sat after
1922

and did not become
barons
and Mayo,
Viscounts

Westmeath

by writ. Five more (the Earls of
and de Vesci, and
Charlemont

Lord Bellew) died without issue. That leaves nineteen.
No new edition of Burkes Peerage has been published since 1970,
which makes it difficult to be sure; but it appears that eleven of the
in question
are extant and have devolved
with the Irish
peerages
titles under which the respective
first barons were elected; peerages
of the United

were conferred
on two of these peers and
Kingdom
another inherited an English barony. Four more appear to be extant
but to have devolved
from the Irish peerage or to be in
separately
does
not
It
abeyance.
appear proper to the writer to identify them
consult the Lords' Journals, Burkes
by name; potential claimantsmay
and Debretfs
and their family knowledge.
But one of them at least
has already shown ataste for litigation of this unusual nature, for he
was among the fellow-petitioners
of the Earl of Antrim in 1966. On
a second

attempt

he might discover

a more lasting

inheritance.

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