Peers who can be M.P.s


Mention of the case of Lord Curzon of Kedleston recalls the one outstanding difference between peers of Ireland and those in the other categories I have mentioned.  No peer of England, Great Britain, the United Kingdom or of Scotland can sit in the House of Commons [1], but there is nothing to disqualify an Irish peer from serving, if he wishes, as the member for any Parliamentary division outside Ireland itself, unless he has previously been elected a representative peer.


While thus serving in the House of Commons, however, he waives his rank as a peer, and would be summoned to any Royal or State function as a M.P. and not as a peer, he cannot claim privilege of peerage or vote in the election of representative peers, and he is liable to be sued, indicted, proceeded against and tried as a commoner for any offence with which he may be charged.


In regard to this last point, this is the only circumstances in which a peer can be divested of his privileges as a peer.  In all other cases of a peer charged with felony any court before which he was brought, or before which it was sought to bring him, would at once disclaim jurisdiction and refer the case to the House of Lords, even though the peer himself was willing to be tried by ordinary legal processes.


So strictly has this rule been observed and insisted on in the past that it has been held that a person succeeding to a peerage while actually under arrest is entitled to be discharged by virtue of his privilege.  In 1849, when Lord Harley succeeded to the Earldom of Oxford (on the death of his father) while in custody in the Queen's Prison, it was contended that he was not entitled to privilege until he had taken his seat as a peer.  But the court would have none of it.  The contention was over-ruled and the new Earl was discharged.


This special privilege of Irish peers to serve as M.P.s if they wish explains the presence in the House of Commons of that famous statesman of Victorian days, Lord Palmerston.  It also accounts for the presence of Earl Winterton, "Father" of the House, who has been a member since 1904.  Lord Fermoy and Earl Castle Stewart are other recent instances.


I have mentioned that Lord Curzon of Kedleston's barony was created in the peerage of Ireland to enable him to return to his political career in the House of Commons at the end of his term of office in India. One wonders whether that intention was explained to Queen Victoria when the peerage was recommended to her, and whether she approved.  One would not think it likely.


But another Sovereign was on the Throne when Lord Curzon did return, and it was generally understood that King Edward emphatically disapproved of an ex-Viceroy returning to the asperities of political life in the Lower House, and that that was the reason why Lord Curzon made no effort to do so.  Recently I asked his eldest daughter, Baroness Ravensdale, whether this was in fact the case.  She tells me that she believes it was.


This was particularly hard on Lord Curzon, whose public spirit was of a high order, for the result was to keep him out of Parliamentary life for another two years.  In the normal course his Viceroyalty would without doubt have been rewarded with a step in the peerage and he would have taken his seat in the Lords.  But his quarrel with Lord Kitchener - in which the Government supported the Commander-in-Chief - and his resignation a year after his reappointment for a second term, led to an estrangement from the Conservative Ministers, and Mr Balfour made no recommendation to the Crown when he himself resigned the day after Lord Curzon reached England.


For this, undoubtedly, Lord Curzon was himself to blame.  As his biographer, Lord Ronaldshay (now the Marquess of Zetland), has put on record, in his resentment against the Government which he considered had let him down he made no secret of his disinclination to accept any honour from their hands.  Mr. Balfour can hardly be blamed for not making an offer which he had every reason to believe would be refused.  It was expected that the new Prime Minister would step into the breach, but Sir Henry Campbell-Bannerman took up the attitude that if Lord Curzon's own party had not recommended the honour it was not for him to do so.


Not until 1908 did Lord Curzon get back into Parliament.  In that year he was elected a representative peer for Ireland.  Three years later, on the recommendation of Mr Asquith, the long-delayed honour came in the shape of an earldom.  Ten years later he was advanced to a marquessate.


Reference has been made to the fact that many holders of Scottish and Irish peerages also possess peerages of Great Britain or of the United Kingdom, which gives them seats in the House of Lords.  This would not be the case if a decision of the House of Lords in 1711 - four years after the Act of Union between England and Scotland - had been allowed to stand.  In that year James Hamilton, fourth Duke of Hamilton, and premier peer of Scotland, was created Duke of Brandon in the peerage of Great Britain, an honour which should have entitled him, and was intended so to do, to take his seat as of right among the dukes in the House of Lords.  But the House called the patent in question, ordered the judges to attend to assist them in their deliberations, and after a lengthy debate resolved, "That no patent of honour granted to any peer of Great Britain who was a peer of Scotland at the time of the Union can entitle such peer to sit and vote in Parliament or to sit upon the trial of peers".


A protest was entered against this decision, signed by several peers, but it remained in force for 70 years, until 1781, when the Duke's great-great-grandson, Douglas, eighth Duke of Hamilton and fifth of Brandon, petitioned George III for a writ of summons in right of his Brandon dukedom.  The King referred the petition to the House and in the following year the Committee for Privileges, again with the judges to advise them, heard evidence.  Eventually the question was put to the judges:  "Whether by the 23rd article of the Act of Union, which declares all peers of Scotland to be peers of Great Britain, with all the privileges enjoyed by the peers of England, except the right and privilege of sitting in the House of Lords, and the privileges depending thereon, the peers of Scotland be so disabled from receiving subsequently to the Union a peerage of Great Britain, with all the privileges usually incident thereto?"


The Lord Chief Baron delivered the unanimous opinion of the judges that "they are not disabled" from receiving such patent.  The House afterwards presented a report to the King certifying "our humble opinion and advice that the said Duke of Brandon is entitled to his writ of summons".


That settled the position on the point for good and a number of Scots peers have received "Imperial" peerages.


There are 84 Scottish peerages and 154 Irish.  Of these no fewer than 132 hold "Imperial" peerages.  In 75 cases the "Imperial" title is inferior to their Scottish or Irish rank, in 28 it is superior, in 15 identical in rank, and in 14 identical in rank and designation.


The higher title, naturally, is the one on conventional use, even though it is not that by which the holder has his seat in the Lords.  But there are cases where the holder still uses for ordinary reference his Scottish or Irish title, even though he has an "Imperial" title of the same degree which officially takes precedence of his native style.


Thus the late Earl of Rosebery was in 1911 created Earl of Midlothian, a peerage which on occasion would take precedence of his inherited style, and in the name of which he would be summoned to sittings of Parliament.  But he preferred to retain for conventional use the name of that older Scottish earldom which his eminent public services had made famous, and his son and successor, the present peer, has followed his example.


Similarly Lord Oranmore and Browne, an Irish peer, holds the "Imperial" barony of Mereworth, but prefers to stick to his older Irish style.  In other cases, such as that of the Earl of Eglinton and Winton, the native style is put first and the "Imperial" honour of like degree is tacked on to it.


[1]  Following the House of Lords Act 1999 the only people currently with a right to a seat in the House of Lords are:  (a) the 2 Archbishops and the senior 24 Bishops;  (b) the 2 hereditary Royal Office Holders (the Duke of Norfolk, as Earl Marshal, and the Marquess of Cholmondeley, as Lord Great Chamberlain);  (c)  the 28 Life Peers appointed under the Appellate Jurisdiction Act 1876; (d) the 552 Life Peers appointed under the Life Peerages Act 1958 (of whom 20 hold hereditary peerages); and (e) the 90 hereditary peers elected under the House of Lords Act 1999.