Don't mock the Monck

Apparently, Monckton is a member of the House of Lords, according to constitutional lawyer in England.

I don’t have a dog in this fight, I’m just in it for the popcorn sales. That said, here’s the plot summary.

A lot of the alarmist side of blogosphere (especially John Cook at SkS and Tim Lambert at Deltoid)  spent a lot of time trying to distract from the science presented during Lord Monckton’s summer tour in Australia. Of course, Monckton himself made some ugly distractions at the outset, with a poorly chosen comparison of Ross Garnaut.

That row aside, basically as the tour went on, they didn’t like the message, so they attacked the man.

Here’s how the peerage title tiff got started. Responding to some small outrage in the southern hemisphere, and some emails that came his way as a result, Dave Beamish, Clerk of the UK Parliaments, posted up a letter on the House of Lords’ official website telling Lord Monckton not to call himself a member of the House of Lords. Trouble is, Dave had gotten it wrong.

Hundreds, perhaps thousands of articles, commentaries and blog postings were aimed at Monckton, for having answered an Australian Broadcasting Corporation radio interviewer in August 2011 by saying he was a member of the House of Lords, “but without the right to sit or vote”.

This is sort of like being an “ex US senator”. They enjoy certain rights and privileges of the once held office, like getting to use the library and automobile parking in the senate, but they don’t get to vote of course. In England, these sorts of privileges get passed down hereditarily, such as in Monckton’s case. While “hereditary US Senator” probably wouldn’t fly in the USA, England and its Monarchy has its ways of tradition that don’t translate to such expectations in other countries.

Monckton, on returning from Australia from his tour this autumn, consulted Hugh O’Donoghue, a leading constitutional lawyer at Carmelite Chambers, overlooking the River Thames just a mile downstream from the Houses of Parliament. His question: “Am I or am I not a member of the House of Lords?”

O’Donoghue, who specializes in difficult human-rights cases and Peerage law, spent months carefully researching Monckton’s question. He says Lord Monckton “was and is correct at all points”. The conclusion of his 11-page opinion (see PDF at bottom of this article) , reviewing 1000 years of Peerage law, is clear on the issue:

“Lord Monckton’s statement that he is a member of the House of Lords, albeit without the right to sit or vote, is unobjectionable. His claim is not a false or misleading claim. It is legitimate, proportionate, and reasonable. Likewise, Lord Monckton was correct when he wrote to the US Congress that ‘Letters Patent granting Peerages, and consequently membership [of the House of Lords], are the personal gift of the Monarch. Only a specific law can annul a grant. The 1999 Act was a general law.’ He legitimately drew attention to a parliamentary answer by no less a personage than the Leader of the House, making it plain that the Act was a general law and not a particular law that might have had the effect of revoking Letters Patent. We now have the recent authority of the High Court, in the Mereworth case, for Lord Monckton’s assertion that the 1999 Act did not revoke or annul his Letters Patent. Unless and until such revocation takes place, Lord Monckton remains a member of the House of Lords, and he is fully entitled to say so.”

Lord Monckton has sent copies of the Opinion by registered mail to the Lord Speaker (Baroness d’Souza) and to the chairman of the Privileges Committee (Lord Brabazon of Tara). I have a copy too.

Monckton  said:

“I am awaiting with interest the response of the soi-disant ‘authorities’ at the House of Lords to Mr. O’Donoghue’s definitive statement of the law as he sees it. At the very least, it is surely clear that I am entitled, in what is supposed to be a free society, to speak freely about my point of view.

“Dave Beamish has made a prize ass of himself. This criminous clerk has brought the already-tarnished House of Lords and the ancient office of clericus Parliamentorum into further disrepute. His position is now untenable. He must resign at once, or be fired by the House. I was embarrassed by having had to deflect journalists’ questions about whether Dave has been in league with climate-extremist lobby groups. I was not and am not in a position to answer those questions.

“I hope that, for the sake of sparing further harm to elderly and vulnerable family members who have been getting hate-mail as a result of Dave’s unprecedented and extraordinary abuse of his office, the House ‘authorities’ – if that is the right word – will have the common courtesy and good sense to take down his offending and offensive letter from Parliament’s website and replace it with an apology.”

To people outside of England, who don’t deal in formal titles of hereditary peerage, this might look like an overblown egotistic row . But in England, such things are considered very important and are a tradition of position that affects families and reputations going back centuries.

In short, Lord Monckton is not amused, less so at the boys down under than at the Clerk  of Parliaments, Dave Beamish, in London. He adds in his letter:

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The Summary of Mr. O’Donoghue’s learned Opinion reads as follows:

“I am asked to consider whether The Viscount Monckton of Brenchley was correct when, in a recent radio interview in Australia, he answered the question ‘Are you a member of the House of Lords?’ by saying, ‘Yes, but without the right to sit or vote.’  My conclusion is that Lord Monckton’s answer was and is correct at all points. We have the authority of two Law Lords in the Privileges Committee that the meaning of the words ‘membership of the House’ in the Act is confined to the right to sit and vote. The implication is that in all other respects excluded Hereditary Peers remain members of the House. Also, the Letters Patent that created Peerages such as that of Monckton of Brenchley have not been revoked, and we have the recent authority both of the Leader of the House and of the High Court for that. Though the House of Lords Act 1999 purported to remove ‘membership of the House of Lords’ from excluded Hereditary Peers including Lord Monckton’s late father, its constitutionality is questionable. Peerages entail membership of the House. Lord Monckton is correct to state that he does not at present have the right to sit or vote, though if the 1999 Act is unconstitutional the excluded Hereditary Peers are unlawfully excluded. Therefore, Lord Monckton remains a Member not only of the Peerage but also of the House of Lords, save only that he cannot for now sit or vote there, and he was and is fully entitled to say so.”

The ancient common-law offense of wilful misfeasance in a public office gives the citizen the right of redress against a defalcating public official who might otherwise persist in his crime with impunity. In the present case, the rap-sheet might read as follows:

“You, Dave Beamish, Clerk of the Parliaments, of the House of Lords, London, SW1A 0PW, are charged with wilful misfeasance in a public office, contrary to common law, in that, on a date unknown in July or August 2011, in London, you did knowingly and without lawful excuse cause to be posted on the House of Lords’ official website a letter to The Viscount Monckton of Brenchley falsely stating that the said Viscount Monckton of Brenchley is not entitled to say that he is a member of the House of Lords, and that upon repeated request to desist you wilfully and harmfully persisted in the said misfeasance.”

Section 21 of the Data Protection Act 1998 creates the offense of unlawfully processing unregistered data. Here, the rap-sheet might read:

“You, Dave Beamish, Clerk of the Parliaments, of the House of Lords, London, SW1A 0PW, are charged with unlawfully processing unregistered data, contrary to Section 21, Data Protection Act 1998, in that, on a date unknown in July or August 2011, in London, you did knowingly, harmfully and without lawful excuse cause sensitive personal information about The Viscount Monckton of Brenchley to be published on the House of Lords’ official website.”

Article 8-1 of the European Human Rights Convention, enacted by the Human Rights Act 1998 in the UK, gives everyone “the right to respect for his private and family life, his home and his correspondence” and states plainly that (except on grounds manifestly inapplicable here) “there shall be no interference by a public authority with the exercise of this right”.

Under Freedom of Information law the disclosure of the Clerk’s letter to Monckton is a misfeasance at least fourfold. The Act prohibits disclosure of the Clerk’s letter in that the disclosure is a breach of an enactment (the Human Rights Act); and a breach of a Community obligation (the EU has adopted the human rights convention); and the Act exempts disclosures of sensitive personal information (the Clerk could have given his opinion about excluded Hereditary Peers without mentioning Monckton by name); and exempts disclosures of confidential information (it was calculated to cause harm). Breaches of the Human Rights Act and of the FOIA do not give rise to offenses, but are actionable in damages, as is libel. A complaint has gone to the UK’s Information Commissioner. Furthermore, as Hugh O’Donoghue’s Opinion says:  “Lord Monckton may legitimately raise not only the matter but also the manner of the conduct of officials of the House with the Privileges Committee.”

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Lord Monckton is quite skilled in oratory skewering. Thus, I had to look up “defalcating”. It has roots in the bankruptcy code. I think he’s implying Mr. Beamish was/is morally bankrupt.

In short, don’t mock the Monck for his title.  Here’s the PDF of the legal opinion:

O’Donoghue-lords-opinion (PDF 335k)