The Crown and Life Peerages
To revert to the Wensleydale case, Palmer's comment on the decision of the House is: "This determination has ever since been recognised as sound law, and it would seem to establish the position that peerages for life never have been validly granted in England, except with the concurrence of Parliament".
This would seem to be going rather far. It would not appear that the House in its decision either disputed the validity of life peerages admittedly created in the past or disputed the power of the Crown to create life peerages in the future. The latter was definitely beyond its province; there is no restriction on the power of the Crown to create any honours it pleases. What the House did decide (and the Crown did not contest) was that there was nothing in the instrument creating this particular honour which entitled the grantee to sit and vote as a Lord of Parliament. A main point in the argument was that if the Crown had ever had power to create life peerages with such a right that power had lapsed through desuetude.
As the findings of any Committee for Privileges or the decision of the House itself are not apparently necessarily binding on their successors in other cases (there are good precedents for this contention) it would seem that there is certainly no bar to the Crown creating life peerages in future provided it does not seek to confer on the grantees the right to a seat and vote in the Upper Chamber. But it may even be (except for one factor to which I shall come presently) that it is still open to the Crown to "try it on again" in precisely the same form in the hope that a Committee for Privileges and a House with a different personnel, and in the altered circumstances of the status and powers of the Chamber, would come to a different decision. There would certainly be greater support to-day for the admission of life peers than was the case in 1856.
The doubtful factor to which I have just referred arises out of what has become known as the de Keyser Hotel case - which, incidentally, had nothing to do with peerages. In deciding this case it was held that if something which hitherto has been solely within the compass of the Royal Prerogative is done by statute, then in future it is outside the province of the Prerogative and must have statutory authority. I have known it argued that this decision estops the Crown from creating life peerages in future, since life peerages were created by statutory power in the form of the Appellate Jurisdiction Act of 1876.
The point would make a pretty argument. The contention would seem unanswerable if the primary purpose of that Act had been to do by statute what the Crown essayed to do by Prerogative in 1856 - create life peers as such. But that was not the primary purpose of the Act. Its one aim and purpose was to introduce a prescribed number of eminent legal figures into the House of Lords to strengthen its position as the final legal court of appeal. It was simply as a matter of convenience that it was also decided to give the Crown power to accord them on appointment the rank and privileges of barons.
Still, those points are purely academic now. If any Government in future decided on an infusion of life peers into the House of Lords there is little doubt that it would proceed by statute. Not, I think, primarily because of the Wensleydale case or the de Keyser decision, but because it would involve bringing an entirely new element into what for centuries has been regarded as the normal personnel of the House of Lords. Any such substantial alteration of Parliament would undoubtedly be regarded as straining the Prerogative if it were sought to do it by that means alone.
This section was also written by Heywood before the Life Peerages Act 1958 came into effect. As stated on the previous page, with a few notable exceptions (Viscount Whitelaw and Viscount Tonypandy in 1983, the Earl of Stockton in 1984, the Duke of York in 1986 and the Earl of Wessex in 1999) all peerages created since that of Baron Margadale on 1 Jan 1965 have been life peerages in the rank of baron, either created under the Appellate Jurisdiction Act 1876 or under the Life Peerages Act 1958.