The Anglo-Saxon kings summoned a council, called the Witenagemot, to advise, debate and consent to legislation. To this they summoned prelates, abbots, ealdormen, thegns and officers of state and the household. As the Witen also exercised jurisdiction, some historians see in it the precursor of the House of Lords, which also has supreme juridical powers and is still composed of spiritual and temporal lords.
From about the reign of King Alfred most of the country was divided into shires, of which the chief legal and military officer was an ealdorman. Under the Danes ealdormen came to be called Jarls, from which is derived the word earl.
A type of feudal system slowly evolved under the later English kings but after the Normal Conquest in 1066, William I imposed upon England the well developed and quite sophisticated feudal system which pertained in France. By this system all the land belonged to the king who feuded parcels of it to the earls and barons to hold by homage and fealty and by military service. They, in turn, sub-feuded it on similar terms. The title of earl was hereditary although the heir did not formally enter into his inheritance until he had been ceremoniously invested with the sword of his earldom.
Barons can to some extent be equated with the old English thegn; they were vassals of the king and were essentially the king's men, holding land from the sovereign, doing homage for it and rendering him feudal service.
The King’s Council took the place of the Witen but its composition was similar. This developed until all the earls and barons were, from time to time, summoned to attend the king at a Great Council and this in turn developed into the House of Lords, composed of the Lords Spiritual (the prelates and abbots), the Lords Temporal (the earls and barons) and the great officers. These were the elite and were known from the middle of the 14th century as peers of the realm.
| New Ranks and Titles|
The holding of a peerage became more and more divorced from the tenure of land and peerages were conferred by the Crown in order to honour or reward its subjects. Until 1337 there were only those two ranks in the peerage which have been mentioned, but in that year Edward III created, in Parliament and by Charter, his eldest son Edward, later known to history as The Black Prince, Duke of Cornwall, with remainder to his heirs, being Kings of England. Duke was a foreign title derived from the Latin dux, a leader, and was, after Edward’s creation conferred by his father on his other sons. Dukes took precedence over Earls.
The next title to be introduced into the peerage was also of foreign origin, namely that of Marquis. In 1385 Richard II created his favourite Robert de Vere, Earl of Oxford, Marquis of Dublin for life. He was assigned a seat in Parliament below Dukes and above Earls.
The last title of Nobility to be introduced into the English peerage was that of Viscount when, in 1440, Henry VI created John, Baron Beaumont, Viscount Beaumont, with precedence below earls and above barons.
Peerages were at first created by Royal Charter but later by Royal Letters Patent. In fact, the two documents are both acts witnessing the exercise of the royal prerogative and both are open letters under the Great Seal. They differ in form rather than in substance. Letters Patent creating a peerage give the grantee and the heirs male of his body a certain title and a seat place and voice in Parliament. They also really ennoble him and his male heirs and accord them ‘all and singular the rights, privileges, pre-eminences, immunities and advantages’ which of right belong and appertain to their peerages.
Although peerages are usually granted ‘in tail male’, that is to the male heirs of the grantee in order of primogeniture, the Crown may grant a peerage ‘in tail special’, that is with a wider destination than to male heirs. Such grants are sometimes made in cases where the grantee is a person of great distinction but has no male children to succeed him.
The Crown also, from time to time, created peerages for life only. Although several such creations have been to women, usually royal mistresses, who, because of their sex, were unable to sit in Parliament, men have also been so created and been accorded a seat, as in the case of the Marquis of Dublin, mentioned above. The validity of such creations was questioned, as by the learned lawyer, Francis Hargrave, who maintained that if the Crown had the prerogative of creating life peers, it would invest it with the power of gradually destroying the peerage. The opposite view had been taken by such legal giants as Coke, Blackstone, Comyns and Crewe.
The question remained academic until 1856, in which year Queen Victoria created Sir James Parke, Baron Wensleydale for life and a writ of summons to attend Parliament was issued to him. At the time he was ill and his Letters Patent of creation were laid on the table of the House. The validity of the peerage was at once challenged and referred to the Committee for Privileges, which committee reported that in its opinion the Letters Patent and the usual writ issued in pursuance thereof were invalid. The House resolved and adjudged accordingly, thus inhibiting the Crown from creating life peerages. Sir James was subsequently created an hereditary peer.
| New Acts of Parliament|
Some years later, when it was considered appropriate to admit certain judges to the House of Lords as life peers to hear and determine appeals, it was necessary to pass an enabling Act to empower the Crown to create such peers. The Appellate Jurisdiction Act 1876 (as amended by the Appellate Jurisdiction Act 1887) gave the Crown power to create a number of Lords of Appeal in Ordinary, who would in all respects be Lords of Parliament for life.
In the same way, a further Act was necessary to implement the creation of life peers and peeresses to sit in the House of Lords when this was considered to be desirable public policy. Thus a bill was introduced by Harold Macmillan’s administration, which became law as the Life Peerages Act 1958. This act not only enabled the Crown to create life peerages, but gave life peeresses a seat and voice in the House, illogically leaving hereditary peeresses, by default of positive legislation, still without a seat.
This was remedied by the Peerage Act 1963. By this it was enacted that all hereditary peeresses should have the right to receive writs of summons to attend the House of Lords in the same way as other peers and life peeresses.
Among other things, this Act provided that a peer might disclaim his peerage within twelve months of succeeding to it, or within twelve months of attaining his majority. The effect of such a disclaimer, which is irrevocable, is to divest the peer and, if applicable, his wife, of all interest in the peerage, its titles, rights, offices, privileges and precedence and to relieve him of all obligations and disabilities attached to his peerage. On his death, the person entitled to his peerage will succeed in the usual way.
Apart from peerages created by Charter or Letters Patent there is a number of peerages deemed to have been created by writ of summons. In the days of the Great Council barons were summoned to attend by the issue of writ from the Crown. Not every baron was necessarily summoned to every Council but, because when a baron died, he was normally succeeded in his estates by his son, the son would probably receive one or more writs to attend the Council during his lifetime; thus although the barony was not legally hereditary, it came to have an hereditary character. Sometimes the holder of a barony left only daughters. If married, the husband of one might be summoned in his father-in-law’s title or else the barony might just disappear and be represented by co-heiresses and by their heirs.
| Legal Discussions|
Sir Edward Coke, Chief Justice of the King’s Bench and a scholarly and learned lawyer, stated in his Institutes (1628) that the ancient way of creating a peerage was by writ but that the writ had no effect until the person to whom it was issued sat in Parliament ‘and thereby’ he wrote ‘his blood is ennobled to him and his heirs lineal, and thereupon a baron is called a peer of Parliament’. This doctrine was upheld by various subsequent peerage cases. Where a peerage by writ falls into abeyance between daughters or their descendants, they become co-heirs to the dignity. In such an instance the Committee for Privileges has to determine whether to advise the Crown to issue a writ summoning one of the co-heirs and, if so, whom.
Some lawyers have questioned whether an ancient writ, even where sitting had been proved, created an hereditary dignity but the fact remains that this is now the law. However, there were so many claims to long abeyant peerages at the end of the 19th century and the beginning of the 20th that King George V assented to an address presented by the House of Lords in 1927, and agreed that a peerage which had been abeyant for over one hundred years should not be considered. In 1986 Her Majesty agreed to comply with the advice proffered to her by the Lords regarding abeyant peerages. She agreed to continue the ‘hundred year rule’ and also that if a petitioner represented less than one-third of the entire dignity the Attorney General should recommend to the Crown that no proceeding should be taken with regard to such a claim. He should also bring to the attention of the Crown any arrangement entered into by the co-heirs to a peerage which he thought might be improper. The Queen was also asked to take into consideration the character, position, and suitability of a petitioner.
| Scottish Peers|
Originally peers were created in the peerage of England, but when James VI of Scotland came to the throne as James I of England in 1603, he created peers in both his Kingdoms, for there was a peerage of Scotland and a House of Lords in Scotland. In the same way, the King of England as King of Ireland created Irish peers who sat in the Irish House of Lords. By the Act of Union of England with Scotland, 1706 (5 Anne, chapter 8) the Kingdoms of England and Scotland were united into a single Kingdom which was called Great Britain. The right to sit in the House of Lords of the new Kingdom was not extended to all Scottish peers, but only to sixteen representative peers elected from time to time. The Act was amended in 1847 and 1851 which Acts legislated that when a Parliament was convened a proclamation under the Great Seal was to be issued for the election by the Scottish peers of sixteen of their number to sit in the Parliament of Great Britain. Scottish peers could not sit in the House of Commons and no provision was made for any new Scottish peers to be created after the Union. Scottish peers take precedence after English peers of the same degree according to the date of creation of the peerage. After the Act of the Union all new peerages were created in the Peerage of Great Britain.
In 1800 the Act of Union of Great Britain and Ireland was passed and the United Kingdom of Great Britain and Ireland came into being. As with Scotland, provision was made for the Irish peers to elect a number, in this instance twenty-eight rather than sixteen as in Scotland, of representative peers. Such peers were elected for life rather than the duration of a Parliament and when a death occurred an election was held to fill the vacancy. Irish peers who were not representative peers could sit in the House of Commons but could not claim the privileges of peerage nor vote at elections of representative peers. The act of Union with Ireland also made it lawful for the Crown to create new Irish peers. The legislation is rather complicated but essentially when the number of peers not holding titles in other peerages, such as that of Great Britain, fell below one hundred, the Crown could, but did not have to, top up the number. In fact, there were only twenty-one such creations, the last being that of the Barony of Curzon, in favour of George Nathaniel Curzon on 3rd December 1898. A Bill was introduced into Parliament to abolish the Sovereign’s right to create such peerages but although it failed, the hint was taken.
| Irish Peers|
The Irish Free State was declared by the Treaty of 6th December 1921 and thereafter there were no more elections held for
representative peers, the last such peer, the 4th Earl of Kilmorey, dying in 1961. It is a matter of concern to many Irish peers that they are now no longer represented in the Parliament of the United Kingdom of Great Britain and Northern Ireland but the Irish Peers Association has failed to woo successive governments to support its cause. If an Irish peer establishes his succession to his peerage to the satisfaction of the Lord Chancellor, he may join the eldest sons of peers by sitting mute on the steps of the throne in the Upper House. Irish peers take precedence after peers of Great Britain of the same degree. Since 1801 peers have been created, save the few Irish peerages referred to above, in the peerage of the United Kingdom.
| Post Reformation Constitution|
In early parliaments the Lords Spiritual, the archbishops, bishops and abbots often outnumbered the Temporal Lords but after the Reformation just the Archbishops of York and Canterbury and the diocesan bishops received summonses to sit in the House of Lords. In the Act creating the See of Manchester in 1847 it was provided that the number of bishops sitting should not be increased beyond the twenty-six (including archbishops) who were then sitting. This has remained in force in spite of the creation of a number of new sees. Now the Bishops of London, Durham and Winchester always have a seat in Parliament, together with twenty-one other diocesan bishops in order of their date of appointment to their sees. There has long been a debate as to whether the Lords Spiritual were Peers of the Realm, or simply Lords of Parliament without the privileges of peerage.
Nevertheless, as Lords of Parliament the Archbishops have precedence between royal dukes and other dukes and bishops before barons and below viscounts.
| What is a Peer?|
This poses the question, what exactly is a peer? Peerage has long been a personal dignity. When the Crown creates a peer it ‘really ennobles’ the person so elevated and grants him and his heirs and successors in the dignity a seat and place in parliament, this being the essential and most important privilege of a peer. The hereditary principle has, of course, been abandoned in the case of life peers, but none of the privileges of peerage. In most European countries the concept of nobility embraces the family, but that is not so in the United Kingdom. The children of a peer are commoners and, although they bear courtesy titles, these are neither noble nor substantive.
Thus, peers have not only the right but the duty to receive and act upon a writ of summons to Parliament. This command of the Crown is still couched in mandatory and awesome terms. The Queen’s Writ runs ". . . We strictly enjoining you upon the faith and allegiance by which you are bound to Us that considering the difficulty of the said affairs and dangers impending (waiving all excuses) you be personally present at Our . . . Parliament with Us and with the Prelates, Nobles and Peers . . . To treat and give your counsel . . . And this as you regard Us and Our honour and the safety and the defence of the . . . Kingdom and Church . . . in nowise do you omit.’
In fact, exemption from attendance has traditionally been granted and in many cases it was a polite convention for either Sovereign or subject. On some occasions peers attended by proxy, but such rare attendances were discounted in 1868 by Standing Orders of the House.
Since 1954 Standing Orders state that a peer must attend unless he has been granted leave of absence. It is not difficult to obtain such leave.
| Disqualification of Peers|
Peers are disqualified from sitting in the House of Lords if they are undischarged bankrupts, unless it is certified that their bankruptcy was caused by misfortune not misconduct; if they have been convicted of treason or if they are aliens or infants, that is under 21 years of age (the Family Law Reform Act 1969 lowering the age of majority from 21 to 18 not applying). It is under the terms of the Criminal Law Act 1967 that a peer is disqualified from sitting if convicted of treason.
Many of the privileges of peers have slowly disappeared over the years but they are still exempt from jury service and from arrest in civil suits when Parliament is sitting. The ancient right of a peer to be tried by his fellow peers in cases of treason, or felony was abolished by the Criminal Justice Act 1948. The privilege of peers to have right of personal access to the Sovereign, under certain conditions stipulated by a Charter of Henry III, is no longer exercised.
Since the 16th century peers have usually signed by their title only, as does the Clerk of Crown in Chancery, and they may have supporters granted to their armorial bearings, which devolve with the title. In the cases of life peers, their supporters are for life only. The former is a custom, the latter a privilege.
| Constitutional Powers of the Lords|
The constitutional powers of the House of Lords, like the privileges of its members, have also been curtailed. The Lords could amend and throw out a Bill sent to them by the Commons. This power was seriously challenged in September 1831 when the Commons passed the third reading of the second Reform Bill (An act to amend the representation of the people in England and Wales) by 345 votes to 236. The Lords threw it out. The third Bill went through all its stages in the Commons in March 1832 but was again rejected by the Lords. Lord Grey, the Prime Minister, resigned. Wellington was asked to form a Government, failed, and Grey was recalled, but only accepted the office of Prime Minister on condition that William IV promised in writing to create enough (estimated at 50 to 60 Liberal peers) to see that the new Bill was passed by the Lords.
In fact, this was never done as the King wrote to all Tory peers asking them not to vote. They obliged, the Reform Act became law and the constitution of the Lords was not drastically altered. However, after many clashes the same matter came to a head in 1909 when the Lords rejected the Finance Bill. This led to the Parliament Act 1911, which was only passed by the Lords after a threat of several hundred new peers being created to ensure its safe passage.
By this Act the Lords could not reject a Bill, certified by the Speaker of the House of Commons as a Money Bill, and any public Bill passed by the Commons and rejected by the Lords in three successions should receive the Royal Assent. In effect the Lords only had the power of delaying a Bill for about two years.
In its judicial capacity the House of Lords is the supreme judicial authority for England and Wales, the ultimate Court of Appeal. Cases which come before it are adjudicated upon by the Lord Chancellor and the Lords of Appeal in Ordinary.
| Recent Developments|
At the 1997 general election, the Labour Party was elected with a massive popular mandate. In their election manifesto the party had pledged to end the hereditary principle in the House of Lords:
"The House of Lords must be reformed. As an initial, self-contained reform, not dependent on further reform in the future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute. This will be the first stage in a process of reform to make the House of Lords more representative. The legislative powers of the House of Lords will remain unaltered.
The system of appointment of life peers to the House of Lords will be reviewed. Our objective will be to ensure that over time party appointees as life peers more accurately reflect the proportion of votes cast at the previous general election. We are committed to maintaining an independent cross-bench presence of life peers. No one political party should seek a majority in the House of Lords."
In September 1998, the Constitutional Commission chaired by Lord Makay of Clashfern, published its report on options for a new second chamber.
This was followed by the 1999 House of Lords Act, which resulted in the retention of only 92 hereditary peers, but provided that this group would renew itself through election.
The Government then set up a Royal Commission on Reform of the House of Lords, chaired by Lord Wakeham, to examine further reform. The Commission reported in January 2000.
In the Labour Party's 2001 general election manifesto, it was stated that:
"We are committed to completing House of Lords reform, including the removal of the remaining hereditary peers, to make it more representative and democratic, while maintaining the House of Commons' traditional primacy.
We have given our support to the report and conclusions of the Wakeham Commission and will seek to implement them in the most effective way possible...
We will put the independent Appointments Commission on a statutory footing."
The Appointments Commission did appoint fifteen life peers, originally dubbed "People's Peers", in the summer of 2001, but the process was widely regarded as perpetuating the existing system by recommending exactly the same sort of people as would have been appointed to the Upper House by any other traditional method.