In 1175 as a result of the Treaty of Windsor between Henry II of England and Rory, High King of Ireland, Ireland became subject to the English Crown. English Kings ruled through the appointment, first of Justiciars and later through Lords Deputy and Lords Lieutenant. Ireland was not incorporated into the English Parliamentary system. In 1117 Henry created his son John, "Dominus Hiberniae" (Lord of Ireland), at the same time two Normans, Robert Fitzstephen and Milo de Cogan were granted the Kingdom of Cork between them, and Philip de Braose was granted the Kingdom of Limerick. A few years later in 1210 King John visited Ireland and established there the laws and customs of England.(1) It was also said that at this time he held a Council of Magnates in Dublin. Usually the Council was summoned by the King's representative in Ireland, but until the end of 1300 English Statutes were brought into effect by Royal Ordinances. In 1264 the then Justiciar, Richard of Rochelle held a Parliament at Castledermot.(2) It is likely, however, that this was a Council of Bishops, Abbots and Peers only. The number of these Councils or Parliaments must have been limited to some extent by the fact that there were large areas of Ireland which were not effectively under the control of the English Crown. The first full Parliament in Ireland was held in 1297,(3) this being the first time that Knights were summoned to attend. Although individual writs of summons were issued, there is no extant list of those who attended, although the attendance of Richard de Burgh, Earl of Ulster is recorded.
In 1300 the attendance at Parliament was further extended by the inclusion of representatives of cities and boroughs at the Easter Parliament in Dublin.(4) There is still considerable doubt as to which Lords were summoned to Parliament at this time, although it is clear that the native Irish were not called. From time to time a record has been preserved which gives a glimpse of those peers who could expect to be summoned. In 1324 the Earls of Ulster, Lough and Kildare attended as did Maurice Fitzthomas, later Earl of Desmond.
It is doubtful if summons to attend Parliament at this time created a hereditary peerage, as was later held to have been the case in England. There was no guarantee that a summons to one Parliament would be followed by a summons to the next, or that a Lord's summons would be followed by one for his heir after his death. Although, in 1377 (5) the doctrine of barony by tenure seems to have been accepted, it was nearly a century later before the first official creation of an Irish baron, that of Baron Trimleston in 1462. Not long afterwards this was followed by the creation of the first Irish viscount in 1478 (Gormanston). It is noteworthy that for many years, even after the deliberate creation of Irish peers, the number remained small, for example, in 1489 when Henry VII summoned the Irish peers to Greenwich he summoned three earls and twelve others and in the event thirteen attending. Those summoned were:-
Earls of Kildare, Ormond and Desmond and Lords Buttevant, Fermoy, Athenry, Kinsale, Gormanston, Delvin, Slane, Killen, Howth, Trimleston, Dunsany and Kerry. The Earl of Desmond and Lord Kerry did not attend.
As earlier Irish Patents or Charters of creation are rare the order of summons on those noted above is important. As we know that Lord Trimleston was created in 1462 and as he was fairly well down the list, it is at least likely that some of those above him were of earlier creations, although we cannot be absolutely certain. Apart from Trimleston the other known date of creation in that list is that of Gormanston who, of course, was a viscount.
The remaining ten barons summoned have been called "Barons by prescription" having been officially acknowledged in 1489. This method of creating a peerage is unique to the Peerage of Ireland. It is possible, of course, that a number of barons were not called to Greenwich because they were too old or too young. However, it is submitted that there are unlikely to have been many Irish Barons who were not called at this date. Charters or patents of creation of Irish Peerages before 1500 are rare, but include the seven Earldoms of Ulster, Louth, Carrick, Ormond, Waterford, Kildare and Desmond and the one Viscount Gormanston. There are also three baronies, Portlester (1462), Trimleston (1462) and Ratowth (1468). Three of the earls were summoned to Greenwich and the Barony of Ratowth became extinct in about 1480.(6)
With regard to the others, the Earldom of Ulster merged in the Crown in 1461, Louth was extinct by 1329, Carrick probably never actually existed (7) and Waterford (who was also Earl of Shrewsbury) was, it seems, in France in June 1489 which may be why he was not summoned as an Irish Peer. In any event he was a leading figure in the English Peerage. Portlester may be the only example of a Baron too old to attend, but although he had been pardoned he had been a supporter of Lambert Simnel which may also be a reason for his non-attendance.
As has been noted above, the first creation of a viscount in Ireland was in 1478. The next Irish viscounts seem to have been Roche of Fermoy and Buttevant (Barry). However, there is no evidence of creations in these cases and it is highly likely that a measure of self-promotion took place and in both cases a higher title was at first assumed and later recognised.
In 1490 fifteen peers were summoned to the House of Lords in Dublin and from that time were regularly summoned. In 1495 with the passing of Poynings Law the Irish Parliament was made subordinate to that of England and was prevented from passing any law except with the approval of the King. However, peerage creations continued including some old Irish Catholic families, for example, Dillon, Earl of Roscommon.
At the time of the accession of James I the Irish Peerage was about twenty five strong and in the first thirteen years of his reign he created only three new Irish peers. In 1602 those Irish Chiefs who had been prominent in the rebellions during the reign of Elizabeth submitted to the Crown. The Lord Deputy in Ireland (created Lord Chichester in 1613) kept a close watch on the Irish Lords, so much so that the Earl of Tyrone is alleged to have said that he was unable to drink "a full carouse of Sack, but the State was within a few hours advertised thereof".(8)
James had no real interest in Irish affairs and, certainly for the early years of his reign, considered only the question of controlling Ireland in the interests of the Crown. It was to fulfil this aim that the extension of the Irish peerage was proposed. Further impetus was given by the action of the Irish House of Lords in the 1613 session when it rejected much of the legislation from London. One immediate result of this was an order that the education of the sons of some of the Irish peers should take place in England.(9)
In 1616 James decided upon an increase in the Irish peerage, in particular an increase in the Protestant numbers and he created five new peers — Barons Ridgeway, Brabazon, Moore, Audley and Boyle. By 1619 a further nine peers had been added to the Irish peerage, two Irish families, three English and four Scottish. There was concern in Ireland (as in England) at the rapid increase in the number of peers, which was coupled with expressions of regret that many of the new peers had little contact with Ireland.
In 1623 there was an interesting case when one Pierce Butler claimed to be heir to the Earl of Ormond. At the time that the claim was made the Earl was imprisoned in the Fleet Prison in London because he would not submit to the King's action in granting some of his estates away. From prison he petitioned the King for his release claiming that the Earl of Desmond had set up the claimant who was an impostor.(10) The King wrote to his Lord Deputy in Ireland, Viscount Falkland directing him to set up a commission to investigate the claim. The Commission consisted of the Earl of Thomonde, Lord Esmond of Limerick and Lord Anguier who were directed to examine any witnesses produced.(11) They apparently found the claim false and that the claimant's name was not Butler. This is an example of the interest evidenced by the Crown in peerage matters both in England and Ireland, and demonstrates that at this time there were still a number of different ways of determining peerage disputes which did not always go to the House of Lords.
Parliament was summoned again in 1634 and the Journals of the Irish House of Lords for 14th July (12) show that on that day there were ten earls, fifteen viscounts and fourteen barons in attendance. Part of the business dealt with on that day was a petition presented by Counsel for William, Lord Slane for the issue of a writ of summons as the son and heir of Christopher the previous Lord Slane. After consideration it was ordered that a writ be issued and that William take his place and precedence. However, as it seemed that there was an elder brother who had gone abroad fourteen years before and had not been heard of since, a rider was added which stated that if the elder brother, Thomas should return then he would have the title and William and his heirs would be disinherited. William accepted these conditions and received his writ on 15th July. He was later outlawed for his part in the rebellion of 1641 and this outlawry was held to be still in force in 1828 when he was declared attainted. Also in 1634 the King wrote to the Lord Chancellor of Ireland asking for a Bill to be preferred in the Irish Parliament to ensure that the nobility of Ireland who resided in England, should pay all "public payments and charges taxed by Parliament" (13) in Ireland. There was also a request for an Act to be passed compelling Irish peers to purchase land in Ireland up to a certain yearly value.
These problems arose from the practise of the Crown in creating Irish peerages for those whom it wished to reward who had in fact no connection with Ireland or lands there. These included such peers as Viscount Kilmorey (created on James' death in accordance with his wishes) who had at least served in Ireland, and Sir Thomas Savile created Baron of Castlebar and Viscount Savile. Also there was the case of Viscount Scudamore who was an English knight with no interests in Ireland.
The matter was brought up again later in the year when it was suggested that the value of land purchased by Irish peers should be for an earl £300, a viscount £250 and a baron £200, in default of which their titles would be held to be void, indeed, a Bill to this effect received its first reading in this year but seems to have disappeared thereafter.(14) This year also saw a case of a peer being accepted as a peer without, apparently, any proof being produced when in November Lord Caulfield was admitted to his place, without producing either a writ of summons or a patent. The Lords being apparently "satisfied" that he was a Lord of Parliament.(15) There is also evidence that between 1618 and 1629 there were at least twenty cases of the sale of Irish peerages.
It is true that in some of the cases where money changed hands, there was also an element of the Crown obtaining the support of prominent Irish families. As in the cases of the elevation of Nicholas Netirvell as Viscount Netirvell of Douth and the advancement of Baron Nugent to the Earldom of Westmeath in 1621.
Between 1603 and 1641 no fewer than eighty Irish peerages were created, sixty-one of these between 1621 and 1630, only twenty of these new peers were Irish. In 1635 the Lords decided a dispute about precedence between Lords Trimleston and Dunsany giving Trimleston precedence from 1462 (the date of his grant) because Dunsany produced no proof of any earlier creation.
There is an amusing story behind the grant of a barony and earldom to Sir William Pope. Apparently, as Sir William had no lands in Ireland the question arose of the titles, he knew little of Irish geography and having discovered that Dundalk (his first choice of title) was already in use, it was suggested that the towns of Granard or Lucan could be used. Sir William complained to his son, who was acting on his behalf, that:
" I am sertan that ther is such townes as Lucan and Granard, but can not find it in the mape, but divers teles me for sertane there is such a places, for I entertaned yesterday an Irishman whoe is of the Kinges Counsel for ass his bisnes in Ierland, whoe hath asshured me there is such a places, and both market townes ...; but sence I cane not find that towne in the mape, it it is posible we will change Granard for a (w)hole countie ..."(16)
He was in the end created Earl of Downe and Baron Pope of Belturbet.
In 1640 the Irish House of Lords sent a list of grievances to the King, among which was a complaint that some Irish peers "having titles of honour in this Kingdom and no lands have votes in Parliament",(17) which echoed the proceedings of 1634. They also complained that the rule of the Earl of Strafford ignored the interests of the Irish peerage and petitioned that they be allowed their places and honours. These complaints added to many others from England and Ireland may have helped to send Strafford to the scaffold. After Charles I came to the Throne there was, for a time, a lull in the creation of Irish peerages, but with the outbreak of the Civil War numbers again increased.
Between 1642 and 1647 there were another seventeen Irish creations, all of whom supported the Royalist cause.
The Civil War in England was reflected in Ireland and the Parliament which met in 1642 was all Protestant and by 1644 we see Irish peers being fined for non-attendance. One of the most difficult problems faced by Irish peers was the oath of supremacy required to be taken by all who aspired to public office. Although it was sometimes ignored, the long term effect was to cause a change of religion among some of the most prominent of Irish families. By the 1640s the Earls of Ormond, Kildare, Barrymore, Thormond and Inchquin were Protestant. A notable example of the new Irish peerage developing was Richard Boyle created Earl of Cork in 1620 who, at the time of his death owned enormous amounts of land (he bought Sir Walter Raleigh's lands for £1000) and had four sons all of whom became peers.
Cromwell's invasion of Ireland as a representative of the Commonwealth of England which had (temporarily) abolished the peerage, did the same in Ireland. Although it seems that in Ireland peers were not required to surrender their patents as was the case of England, (where in any case it was largely ignored).(18)
In May 1661, after the restoration of the Stuarts, an elected Irish Parliament met. A very early entry in the Journals of the House of Lords is an order that a list of the outlawed Lords be brought to the Clerk of the House.(19) The next business was the question of whether Irish peers resident in England should be allowed to send proxies to the Irish House of Lords; this was agreed. This seems to show that the House of Lords immediately carried on where it had left off after the 1644 sitting.
The problems of the Rebellion and the Civil War still remained and after a request for a declaration by the Irish peers, the King made an Order in Council on 15th May 1661 which ordered that no writ to the Irish Parliament should be issued to any peer who had been indicted and outlawed for treason and who had not reversed his outlawry "according to the formality of law".(20) In September 1622 the son of the outlawed Lord Gormanston was not allowed to take his seat in Parliament as his father had not reversed his outlawry. The practise of fining absentees continued and in July Earls of Londonderry, Down, Carlingford, Viscount Catherlogh and Barons Glenmullen, Coleraine and Mountjoy were fined for non-attendance. The Irish peers objected to the taxes imposed upon them by the Crown and sent repeated complaints to England, without success.
This Parliament lasted until 1666 and one of its last acts was a free conference with the Irish Commons, which apparently broke up in disorder. It was reported to the Lords that the Earl of Drogheda said to the Commons "Gentlemen, you would all be Lords", and received the answer from Mr. Adam Molineux "another rebellion may make us so, as well as a former made your ancestors".(21) In 1689 there was one last gathering of the Old Parliament when King James summoned an Assembly in Dublin. Few Protestants turned up, but about fifty Irish peers attended mainly of the old Irish families, they included Earls Clanrickard, Antrim and Clancarthy, Viscounts Magennis, Roche, O'Dempsey, Mountcashel and O'Brien and Barons Felming, Bermingham, Fitzmaurice, Plunkett, Burke and Butler, many of whom were afterwards attainted and outlawed.
The next time the Lords sat it consisted of twelve bishops and eighteen peers who, in October 1692, set up special committees to consider which of the laws passed in England since 1495 ought to be enacted in Ireland. On many occasions the meetings of the Irish House of Lords at this time seemed more concerned with the affairs of individual peers than with matters of State. In this session the House resolved to fine both Protestant and Catholic peers who did not answer to their writs at the rate of £150 for an earl, £100 for a viscount and 100 Marks for a baron. Additionally, the Earl of Kildare was to be fined £300 if he did not appear.(22) Many of the great names in the Irish peerage had vanished during the years of rebellion and war, through attainders and outlawry. However, some peers did become supporters of William, notably the Duke of Ormond and the Earls of Kildare and Antrim. Other peers kept themselves out of the limelight and did little to draw attention to themselves, for example, the Earl of Fingall and the Earl of Inchquin became passive supporters of the new Government.
At this time the Irish Parliament as a whole refused to pass a number of Bills which had been drafted in England with the result that Parliament was disbanded. Just before the dissolution the House of Lords passed a Standing Order which gave precedence to new creations "according to the time of his creation and the date of his letters patent" and every "antient peer shall hold his place according to his antiquity".22 It seems that there is no similar Standing Order for the English House of Lords.
When the Irish Parliament met in 1695 the House of Lords again spent much of its time debating matters of place, precedence and privilege. For example, in September 1695 it was ordered that Catholic peers who failed to qualify themselves to sit and Protestant peers under the age of twenty-one should not have any privileges of Parliament. There was also concern over those peers who did not answer to their writs. Indeed, some twenty-five peers are named as not being present at the sitting, although this number apparently included some Catholic peers who had not qualified themselves to sit in any event. The Government in London felt that bi-annual sittings were sufficient, which caused the Irish House of Lords to protest in October 1695 claiming that it was necessary for the Irish Parliament to meet frequently.
The problem of the attainted and outlawed peers continued to be a concern of the Irish House of Lords and, in December 1697, a Committee was appointed to examine the Journals of the House to discover which peers had been outlawed and which outlawries had been reversed. Following this report, in 1698 it was resolved that the named peers should not sit in the House of Lords.(23) It is unfortunate that we do not have a similar list of reversals of outlawries, but throughout the subsequent sittings of the House of Lords peers were proving, or attempting to prove that their attainders or outlawries had been reversed.
Even without these peers the numbers in the Irish peerage had increased considerably in the years since the Restoration. In October 1698 the roll of peers called over as being absent from the House amounted to sixty five plus five bishops and by 1704 another Committee led by the Archbishop of Tuam was tasked with discovering how absentees should be punished. The Committee duly reported that in 1692 and again in 1695 absent peers had been fined. There is no record of any action being taken on this report. In the same year the English House of Lords was asked to send copies of its Standing Orders to Dublin in order that similar rules could be made for the Irish House of Lords.
In December 1715 the Lords received a report of a Committee appointed to examine whether Viscount Mountgarret had reversed his outlawry. It is apparent from their findings that Lord Mountgarret and his ancestors had been subject to many of the problems which affected Irish peers in the troubled times since 1640. In 1692 Lord Mountgarret had refused to take the oath and was banned from sitting in the House, but a number of witnesses deposed that they knew certainly that by Court order the outlawry had been reversed, and produced no fewer than three certificates to that effect, the first dated 1692 declared that the reversal took place in 1688, the second in 1695 declared that the outlawry was reversed and a third, in the same year, affirming the same.
After further evidence from Ulster King of Arms the House considered a motion to delay a decision. This motion was lost and after a long and at times heated debate the motion that Lord Mountgarret's ancestor had reversed the outlawry of 1641 was also lostAn indication of the strong feelings aroused by this case is shown in the dissenting opinion which Viscount Strabane insisted was read into the record of the House, nineteen other peers also indicated their dissent.(24) Nevertheless it was ordered that Lord Mountgarret's name be expunged from the list of peers. Later, in 1721, Lord Mountgarret again petitioned the House with still further proof of the reversal of his grandfather's outlawry and after another hearing it was ordered that his name be restored to the list of peers.
Early in 1715 the House of Lords resolved, as they had done on many past occasions, that peers who did not take the Oath of Abjuration as well as the Oath of Allegiance should not be allowed to sit in the House.
In 1716 William Hawkins, Ulster King of Arms, petitioned the House about the problem of attainted peers still using their titles of honour and, worse still in his view, using supporters with their coats of arms.(25) His complaint was that although he was empowered to take action in such cases, he was worried that he could be fined in the inferior Courts for defaming such "encroachment of honour". The House, having as usual set up a Committee to consider this, resolved that the use of supporters by attainted and outlawed peers was a breach of "privilege of the peerage of Ireland".
It also resolved that it was the duty of the King of Arms to deface or erase such supporters shown on coats of arms used by attainted peers and, finally, it resolved that the use of the title of Lord by any attainted peers was a breach of privilege.
In 1719 the passing of the Declaratory Act by the Government of George I, which abolished the Appellate Jurisdiction of the Irish House of Lords, was the cause of a long and (I believe) soundly argued case for the retention of the power of the Irish Parliament. However, it made no impression on the Government and, as the Act also confirmed the power of the British Parliament to make laws for Ireland, it seemed that the Irish House of Lords was to be a mere talking shop. The House still sat however and the question of the reversals to outlawry continued to cause difficulty and there was apparently a fear that some peers would lose possession of lands recently obtained if there was a general reversal. Accordingly in 1728 a petition was sent to the King pointing out that when the attainders of 1641 were reversed those who were restored to their titles and lands rebelled again in 1688 and that any reversal of the attainders of 1688/1690 could "disturb the possession of your Protestant subjects".(26) The King evidently agreed because on 29th August 1728 he replied to this petition that he would discharge "all applications and attempts" to reverse the attainder of 1641 and 1688.
William Hawkins continued to have difficulties with elements of the peerage and in 1773 he again petitioned the House of Lords setting out his complaint against John Barnewell who insisted that he was Lord Trimleston. The specific complaint was that after he had informed Barnewell of the resolution of 1716 he had received a letter signed "as by a peer" wherein Barnewell had insisted on his peerage. He had referred the matter to the House of Lords Committee. There is no record of the action taken by them, but on 20th November John Barnewell wrote an apologetic letter to the House saying that he would abide by the resolution of 1716,(27) and the Committee therefore decided that no further action would be taken.
This, however, was not the end of William Hawkins' problems with the Irish peerage for we find him again petitioning the House about his difficulties keeping an exact list of peers if they would not inform him of deaths or even distinguish between the names of their fathers and grandfathers. He also complained that he had received no reward for the many enquiries and investigations he had been forced to undertake in England and Ireland on behalf of peers.(28) He further complained that he had been forced to prepare no fewer than three lists of peers for one session of Parliament. It seems no action was taken on any of these complaints.
In 1736 Viscount Lisburn petitioned the House that he should be allowed to take his seat as a writ which had been sent to him upon the death of his father had been lost in England, but he had travelled to Ireland as soon as he was of age. It appears that he had been refused a renewal of his writ in England because the Lord Chancellor could find no record of the last patent creating the peerage. An entirely different kind of petition was presented by the Earl of Barrymore in 1737 when he asked for a peer to be presented in Parliament to enable his family to make a marriage settlement upon his son then under age, who it was said was "above twenty years old but hath not obtained his majority".(29) We are not told the reason for this hasty marriage settlement. In any event as the petition was remitted to a Select Committee it would inevitably be some time before a decision was made. However, the son in question married a daughter of Viscount Mountgarret in 1738 when he was of age by three months.
In 1743 Viscount Netirvell of Dowth was indicted for murder and by proclamation the King, George II ordered that he should be tried in Parliament and for this purpose appointed Baron Newport to be High Steward for Ireland for the trial. Lord Netirvell was tried and acquitted, unfortunately no record of the trial is available, although it can be assumed that the appointment of a High Steward indicates that the procedure would be similar to that of the English House of Lords for the trial of a peer.(30)
Peerage claims were referred to the House of Lords in Ireland as in England, and in 1767 the claim of the Dowager Countess of Tyrone to the Barony of La Poer was referred to the House of Lords. It seems that the claim was heard in the same way as in England with the Countess appearing by Counsel and the Attorney General and the Solicitor General of Ireland appearing for the Crown. In November the Committee for Privileges reported that the Countess had proved her claim and the House so resolved. As is well known this barony never existed and, as we have already seen, in any event in Ireland it had never been established that a writ and summons could create peerages. However, the King confirmed the decision of the House of Lords.(31)
In 1771 there was an interesting case which concerned both the English and Irish House of Lords. On 6th November a John Annesley of Ballysax petitioned the Irish House of Lords claiming that Arthur Annesley, who had already received a writ of summons to a previous Parliament, had been proved to be illegitimate by the English House of Lords and that the English titles of Richard, Earl of Anglesey were extinct. There was also at this time a claim from another Richard Annesley to the Irish titles of this family.
However, the Irish House of Lords in 1772 declared that the marriage of Arthur's mother to Richard was valid and, therefore, he was entitled to sit in the Irish House of Lords as Viscount Valentia and Baron Mountnorris and that John Annesley had no claim to these titles. Seven peers dissented from this decision saying that they could not accept that neither the claimant, Richard Annesley nor John Annesley were entitled as they felt that the marriage of Arthur's mother and father was not valid.(32)
In 1782 an Act was passed in Great Britain which declared that the Irish Parliament would be bound only by laws passed by the Irish Parliament and, in January 1783 an Act was passed in the Irish Parliament accepting legislative independence, therefore, from 1783 until the Act of Union in 1800 the Irish Parliament was independent of the British legislature. The records of the House of Lords for these years cover the same type of business as before, including a number of peerage claims for example, Robert Plunkett proved his claim to the Dunsany barony in 1785, although in 1793 Robert Dillon failed to prove his claim to the Earldom of Roscommon. In 1795 the family of Thomas Barnewell finally proved its claim, which had been refused in 1697 and 1733, to the Trimleston barony.
The numbers of Irish peers continued to increase and in May 1798 no fewer than one archbishop, seven bishops and one hundred and fifty peers were recorded as absent ! The Irish Parliament met for its last session in January 1799 and in 1800 the Act of Union was passed which dissolved the Irish House of Lords and allowed the Irish peers to elect twenty-eight of their number to sit on the part of Ireland in the House of Lords in London.
This was the position until 1922 when with the passing of the various Acts consequent upon the passing of the Irish Free State Act, the machinery for electing Irish Peers, which had been laid down in the Act of Union, lapsed because the Lord Chancellor of Ireland and the Clerk of the Crown of Hanaper disappeared. Nevertheless, even after the passing of the Act of 1922 Irish peers continued to receive writs of summons to attend the House of Lords. As late as 1955 the writ of summons to the Earl of Kilmorey specifically quoted the statutes and the fact that he had been elected as a representative peer to sit and vote in the House of Lords.(33) Additionally, the Lord Chancellor's office has continued to receive and report on petitions by heirs of peers of Ireland on their right to vote at the elections of Irish representative peers and sit on the steps of the Throne.
When Lord Kolmorey died in 1961 there was no representative peer left in the House of Lords. In 1965 a petition by a number of Irish peers to the House of Lords asked for a declaration that the right of Irish peers to elect twenty-eight of their number to sit in the House still subsisted.
The Committee for Privileges decided that the right of the Irish peers to elect members to sit had lapsed with the passing of the Irish Free State Act 1922.(34)
Lord Reid, who gave one of the two main judgements setting out the reasons for the decision, stated that as the Irish peers were elected to sit on the part of Ireland their right was dependent upon there being an entity which could be called Ireland as a whole within the United Kingdom. He said that as "Ireland as a whole no longer existed politically" there could be no election to represent something which did not exist. Therefore, even though no express enactment had deprived the Irish peers of their right, he held that it no longer existed.
However, the Committee's attention was not drawn to the Irish Free State (Consequential Adaptation of Enactments) Order 1923 which expressly states that reference to Ireland in pre-1922 enactments should be read as exclusive of the Irish Free State, in other words, to refer to Northern Ireland. Had this Order, made under Section 2 of the Irish Free State (Consequential Provisions) Act 1922 been brought to the Committee's attention, it is submitted that Lord Reid's argument would have been much weakened. The other main judgement, that of Lord Wilberforce, was based upon the principle that as the machinery for election no longer existed and no substitution had been provided, the rights of the Irish peers had lapsed.
It is submitted that this is incorrect and there is good authority for the view that titles of honour cannot be abrogated except upon express words of an Act of Parliament, i.e. Earl of Waterford's Case (1837)(35) and Rhonnda Peerage Case (1922),(36) indeed, in the latter case Lord Birkenhead said:
"The first point to notice is the meticulous care with which, whenever the Legislature has dealt with the right or duty of attending in this House, it has expressed its will upon the matter ... It is sufficient to say that the Legislature in dealing with this matter cannot be taken to have departed from the usage of centuries or to have employed such loose and ambiguous words to carry out so momentous a revolution in the constitution of this House ... And I am content to base my judgement on that alone."
In fact the Act of Union itself provides:-
"that all questions touching the election of Lords temporal of Ireland to sit in the Parliament of the United Kingdom are to be decided by the House of Lords of the Parliament of the United Kingdom."
A further omission in the 1965 hearing was that the opinion of two very eminent lawyers (one later Lord Chancellor, the other Master of the Rolls)(37) which had been sought in 1924, was not brought to the attention of the Committee for Privileges. The reason for this was that as the opinion was privately sought by Lord Oranmore and Browne it was thought to have no legal status. This opinion was that neither the Treaty between Great Britain and Ireland, nor any of the consequent legislation, had deprived the hereditary peers of Ireland of their right to elect representatives to the House of Lords. This conclusion was based upon the well recognised principle that a statute is not to be construed as taking away or destroying rights of privileges save by express language or necessary implication.
In 1971 the passing of the Statute Laws Repeals Act directly affected the right of Irish peers to elect representatives. As a result of that Act the provisions relating to the election of Irish peers were specifically repealed and their right to elect representatives disappeared. Nevertheless, the Irish hereditary peerage was otherwise unaffected and they retained the other incidents of peerage.
The number of Irish peers (not including those holding a United Kingdom, English or Scottish peerage) has fallen to sixty-eight, and it is possible that some of these would not wish in any case to prove their title and petition the Lord Chancellor's department to receive a writ of summons. However, as the Irish peers have been created by the British Crown since 1175, their allegiance is and always has been to the Sovereign and it is entirely right and just that they should have the same rights and privileges as holders of other peerages, including Scottish peers and peeresses in their own right who now have the right to "seat, place and voice" in the Parliament of the United Kingdom.