Mereworth v Ministry of Justice

Questions concerning which persons are entitled to a writ of summons and may participate in House of Lords proceedings fall within Parliament’s exclusive cognisance. The courts therefore have no jurisdiction to determine them. A statute need not expressly refer to Letters Patent to alter the enjoyment of rights conferred by them. Section 1 of the House of Lords Act 1999 removed hereditary peers’ right to receive a writ and to sit and vote, although it did not repeal the Letters Patent in the narrow sense. Permission to appeal was refused because the proposed declarations had not been sought below, were procedurally inappropriate, and disclosed no error or real prospect of success.

Baron Mereworth sought declarations concerning rights under Letters Patent creating his hereditary barony. The declarations included claims to a seat and voice in the House of Lords, a judicial determination of whether the House of Lords Act 1999 had repealed the Letters Patent, and a declaration that section 1 did not prevent him holding the asserted rights.

The Ministry of Justice applied to strike out the proceedings. Lewison J held that questions concerning entitlement to a writ of summons and membership of the House of Lords fell within Parliament’s exclusive cognisance. He also held that the Letters Patent had not been repealed in the narrow sense, but that the 1999 Act had removed the right to sit and vote. On a renewed application, the central issues were whether that conclusion should be interpreted as preserving the asserted rights and whether the proposed appeal and amended declarations were appropriate.

1. Application refused. The renewed application for permission to appeal was refused. The proceedings had no real prospect of success, were not in an appropriate form for the Court of Appeal, and disclosed no error by Lewison J.
2. Exclusive cognisance. The question whether a person is entitled to a writ of summons to participate in proceedings of the House of Lords falls within Parliament’s exclusive cognisance. It is therefore for Parliament, and not the courts, to determine the issue. Any failure by the Committee of Privileges to issue a writ must be raised in Parliament. The court explained, by reference to R v Chaytor and others [2011] 1 AC 684, that exclusive cognisance concerns matters left to Parliament and differs from the absolute privilege under article 9 of the Bill of Rights Act 1688. Since the present issue fell within exclusive cognisance, it was unnecessary to decide anything further about parliamentary privilege.
3. Effect of the 1999 Act. The Letters Patent had not been repealed in the narrow sense. In substance, however, section 1 of the House of Lords Act 1999 altered the enjoyment of rights conferred by them by removing the right to receive a writ and therefore the right to sit and vote. Legislative effect did not require an express reference to the Letters Patent; it could arise by implication. No distinct issue of statutory interpretation was identified.
4. Form of proceedings. The applicant sought specified declarations rather than directions on the construction of a document. The proposed declarations had not been sought before Lewison J and were framed in the present tense despite subsequent events. The Court of Appeal could not treat the judge as having erred by failing to decide matters not put before him. A properly framed application would have needed to identify the rights said to remain and to address the limits imposed by exclusive cognisance. The constitutional importance of the subject did not make the proceedings suitable for appellate determination.

• Court of Appeal (Civil Division): On 9 November 2011, the renewed application for permission to appeal was refused. The court found no real prospect of success, no error by Lewison J, and no appropriate basis for reworking the proceedings.
• High Court of Justice (Chancery Division): Lewison J dealt with the Ministry of Justice’s strike-out application by order dated 23 May 2001. He held that entitlement to a writ of summons was within Parliament’s exclusive cognisance and that the 1999 Act removed the right to sit and vote, although the Letters Patent were not repealed in the narrow sense.