Disclaimer of a Peerage
Prior to the Peerage Act 1963 there had not been for hundreds of years any way in law for an hereditary peer to divest himself of his title once he had inherited it. He might chose not to use his title, but in the eyes of the law he was still an hereditary peer and subject to the advantages and disadvantages that such a position carried with it.
The Peerage Act 1963 was often described in the popular press as Mr Wedgwood Benn's Enabling Act. Although this Act contained some necessary reform to the House of Lords, of which the disclaiming of peerages was only part, it cannot be denied that without Mr Wedgwood Benn's tenacious campaign over two years to surrender his peerage the Act would be unlikely to have reached the Statute book.
The Act provides that any one who henceforth succeeds to a peerage in the Peerage of England, Scotland, Great Britain or the United Kingdom, may disclaim that peerage for his life by an Act of Disclaimer delivered to the Lord Chancellor. Irish peers were not covered by the Act as they do not debar their holders from sitting in the Commons. The Act laid down various timescales that had to be observed, especially if the newly succeeded peer was either a member of the House of Commons or a parliamentary candidate.
Once made, a disclaimer is irrevocable and the former peer is divested of all titles, rights, offices, privileges and precedence attaching to the peerage. This applies to his wife also, an important proviso in view of the social conditions of today, when divorced women who have remarried continue to use titles derived from their first husbands. The opposite effect of the disclaimer is to relieve the former peer of all obligations and disabilities, including any disqualification in respect of membership of the House of Commons and elections to that House. The disclaimer "shall not accelerate the succession to that peerage, nor affect its devolution on his death", thus clearly barring the way to the old Scottish practice whereby a renunciation of peerage could be followed by succession of the next heir. The Act also states that no hereditary peerage shall be conferred upon the person who has disclaimed the peerage.
However, one area not touched upon by the Act was the position of the children of a former peer and their use of courtesy titles. To avoid confusion, the following statement was issued by Garter King of Arms on the authority of the Earl Marshal:
Paragraph 4(b) of the Report of the Joint Committee on House of Lords Reform recommended that "the wife and descendants of a Peer who surrenders should not use the courtesy titles or enjoy the social precedence derived from such a Peer". The Peerage Act 1963, however, while dealing in terms with the effect of a disclaimer on a disclaiming Peer himself and his wife, does not so deal with the effect on his children. This has, therefore, to be inferred and it might be argued on the one hand that the children of a Peer who disclaims are no longer the children of a Peer and so no longer enjoy the style and precedence which they would have enjoyed as such. Or it might be argued on the other hand that the Act does not deprive them of the styles and precedence they have enjoyed prior to their father's disclaimer and they may, therefore, still enjoy these just as the daughters of a peer continue to do so even if their father has died leaving no heir to his peerage."
The Home Office, which is concerned with precedence through the Home Secretary's responsibility for advising the Sovereign on Petitions for special precedence, has so far been unwilling to express a view on the point of law or to deal with the matter by recommending the issue of a Royal Warrant.
It is, therefore, necessary for the Earl Marshal, as the principal authority under The Crown for matters connected with style and precedence, to decide on a policy in the situation as it at present stands.
The Earl Marshal has been advised by Mr G. D. Squibb, QC, Norfolk Herald Extraordinary, that in his view the children of a disclaiming Peer retain their precedence as the children of a Peer and the same has been expressed by the Lord Lyon King of Arms.
While, therefore, it is open to any child of a disclaiming Peer to say that he or she no longer wishes to be known by the courtesy title hitherto accorded him or her, in those cases where such children wish still to be accorded their courtesy titles the Earl Marshal and his Officers will so accord them.