By Mark Watts
Ministers are facing a legal challenge from a hereditary peer that threatens to unravel the 1999 reforms of the house of lords.
And if those reforms were found to be defective, all legislation passed by the house since then would be void, sparking an extraordinary constitutional crisis.
The legal challenge is being mounted by Lord Mereworth, who lost his entitlement to a hereditary seat in the upper chamber because of the house of lords act 1999, although he did not lose his right to use the title.
But Mereworth claims that the 1999 law is defect-ive because it failed to revoke the specific act under which his grandfather was appointed as a hereditary peer to the house, known as the “letters patent”.
He has served a document, called a “protocol letter”, on Lord Mandelson in his capacity as lord president of the privy council, as well as the house of lords authorities, including Sir Freddie Viggers, “black rod”. This comes before mounting a judicial review in the high court.
The challenge has angered campaigners for re-forms of the upper house. Norman Lamb, a Liberal Democrat MP for North Norfolk, said: “This will have to be taken seriously, but it is a sign that the old establishment will do anything to revive their old privileges.
“The proposition is utterly ludicrous, and the gov-ernment should get on and form a democratic second chamber, and get rid of all of the hereditary peers.”
Mereworth’s “protocol letter”, drafted by Stephen Howells, a barrister, says that he will lodge an application for judicial review unless the house restores his rights to enter and sit in the upper chamber, although he is not pressing for the right to vote.
The document says that the 1999 act failed to revoke the “letters patent”, under which King George V granted a hereditary peerage to Mereworth’s grandfather.
Mereworth's father, the late Lord Oranmore and Browne, lost his seat in the upper house under the 1999 reforms, when all but 92 hereditary peers were removed.
The protocol letter stresses: “It is stated expressly in the letters that George V bound his successors, and it is axiomatic that any attempt to alter the terms or effect of the letters would be a matter of moment for those successors.”
This leaves open the possibility that any expelled hereditary peer could sue the Queen to restore the claimed property rights.
Mereworth says in the document: “Since 2003, I have been issued with annual passes, up until 2009. I have exercised the rights available to me pursuant to the letters and the house of lords act 1999.
“During the course of 2009, I have corresponded with black rod seeking clarification of the approach that would be adopted by the government to my peerage. I awaited correspondence from [him] in the hope that sense would prevail; it has not.
“It is plain that you have chosen to refuse to issue me with a pass on the basis of what you take to be the consequences of the house of lords act 1999. It is also plain that you consider that this extends to all rights of access to the precincts of the parliament.
“I have taken careful advice on these questions and I am convinced that you are wrong. I intend to pursue this matter through the royal courts of justice unless a proper accommodation can be agreed.”
In a passage that shows the explosive potential of the case to trigger a constitutional crisis, he says: “Any reform [of the house of lords] that failed, but affected the composition of the house would have the effect of jeopardizing all subsequent legislation until remedied. This would appear to apply to the house of lords act 1999 if its regime were to be judged flawed.”
This could mean the unravelling of a whole series of laws passed by the Labour governments over the last 10 years, including, somewhat disturbingly for the FOIA Centre, the freedom of information act 2000.
Other laws threatened are: the police (Northern Ireland) act 2000 that reorganised policing authorities in the province; regulatory of investig-atory powers act 2000; proceeds of crime act 2002 that established the assets recovery agency; anti-social behaviour act 2003; hunting act 2004; serious organised crime and police act 2005 that established the serious organised crime agency; counter terrorism act 2008.
The document puts Mandelson and the house of lords authorities on 30-days notice that Mereworth intends to make an application for a judicial review of the decision to refuse him what he says are his rights to enter and sit in the house.
Mandelson is understood to have referred the issue to the house of lords, which is believed to be studying the contents of the “protocol letter” and preparing a response.
A spokesman for Viggers said: “Black Rod will be writing back to Lord Mereworth to outline why we reject his claims. We will of course be taking on Lord Mereworth's claims in court.”
Other expelled hereditary peers are understood to be exploring whether they can join the legal challenge.
Another version of this article was first published by The Observer. The FOIA Centre is providing legal research for advisors acting for Lord Mereworth in this case.