FIELD AND OTHERS v. THE UNITED KINGDOM

 

FOURTH SECTION

DECISION

Application no. 34442/18
Tanya FIELD against the United Kingdom
and 4 other applications
(see list appended)

 

The European Court of Human Rights (Fourth Section), sitting on 12 January 2021 and 16 May 2023 as a Chamber composed of:

 Yonko Grozev, President,
 Tim Eicke,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Gabriele Kucsko-Stadlmayer,
 Pere Pastor Vilanova,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to the above applications lodged on 12 July 2018,

Having deliberated, decides as follows:

THE FACTS

1.  A list of the applicants is set out in the appendix.

2.  The applicants are the daughters and eldest children of deceased, current and future hereditary peers. The peerages in question, like the majority of hereditary peerages, descend down the male line meaning that they can only be inherited by a male relative.

3.  The applicant in application no. 34442/18, Ms Field, is the eldest child of the 9th Earl of Macclesfield, a hereditary peer. Upon the latter’s death, in accordance with the letters patent creating the peerage and in view of the fact that he has no male issue, his title will pass to the Earl’s younger brother.

4.  The applicant in application no. 34472/18, Ms Dundas, is the eldest child of the Earl of Ronaldshay, who has no male issue. Her father is the eldest child of the 4th Marquess of Zetland, a hereditary peer. Upon her grandfather’s death, the title will pass to her father and, upon the latter’s death, to her father’s younger brother.

5.  The applicant in application no. 34478/18, Ms Franks, is the eldest child of the 5th Earl of Balfour, a hereditary peer. Upon the latter’s death, in accordance with the letters patent creating the peerage and in view of the fact that he has no male issue, his title will pass to his younger brother.

6.  The applicant in application no. 34484/18, Ms Clegg Littler, is the eldest child of the late 4th Viscount Long, a hereditary peer. Upon his death, in accordance with the letters patent creating the peerage, her younger brother inherited the title.

7.  The applicant in application no. 34596/18, Ms Byng, is the eldest child of the 11th Viscount Torrington, a hereditary peer. Upon the latter’s death, in accordance with the letters patent creating the peerage and in view of the fact that he has no male issue, his title will pass to a distant male cousin.

8.  Prior to 1999, all hereditary peers were automatically entitled to be members of the House of Lords. However, the adoption of the House of Lords Act 1999 (“the 1999 Act” – see paragraph 16 below) ended the automatic right of hereditary peers to sit in the House of Lords. Now, only ninety-two seats in the House of Lords are reserved for hereditary peers of which ninety were filled by elections in which specific groupings of the membership of the House of Lords were able to vote (see paragraphs 15-17 below). Successful candidates were elected to the House of Lords for life. As seats become vacant, as a result of the death, resignation or expulsion of the holder, they are filled by by-elections (see paragraph 18 below).

9.  Since the applicants are unable to inherit the family peerages, they are not and will never be hereditary peers. As only hereditary peers may stand in by-elections for seats reserved for hereditary peers in the House of Lords, the applicants are therefore ineligible to stand in by-elections to the House of Lords.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

Peerages

10.  Hereditary peerages date back centuries and may be created by letters patent or, historically, by writ of summons. The practice of granting hereditary peerages has now largely ceased; new members of the House of Lords are given life peerages (see paragraph 12 below).

11.  In the case of the vast majority of hereditary peerages created by letters patent, descent is down the male line. There are, however, some exceptions where inheritance by female issue is expressly envisaged in the letters patent. By contrast hereditary peerages created by a writ of summons are not limited to male heirs. There are currently approximately eight hundred hereditary peers in total in the United Kingdom.

12.  The Life Peerages Act 1958 (“the 1958 Act”) enabled the Prime Minister to propose men and women to be appointed to life peerages by the Monarch. There are currently approximately seven hundred life peers.

Membership of the House of Lords

13.  The Parliament of the United Kingdom is bicameral, made up of the House of Commons and the House of Lords. The House of Lords is the Upper House of Parliament and according to the House of Lords website currently has 778 members. It is composed of Lords Spiritual and Lords Temporal.

14.  Lords Spiritual are entitled to sit in their capacity as clergymen. Twenty-six Lords Spiritual, who are bishops or archbishops of the Church of England, are entitled to sit in the House of Lords. When they retire, their membership of the House ceases. In the case of five diocesan sees that are permanently represented, membership passes to their successors; in all other cases it passes to the next most senior bishop.

15.  Lords Temporal were historically hereditary peers, who were automatically entitled, by virtue of their peerages, to a writ of summons to sit and vote in the House of Lords (see paragraphs 16-18 below). Following the enactment of the 1958 Act (see paragraph 12 above), those on whom life peerages have been bestowed under that Act are also entitled to sit in the House of Lords (see paragraphs 20-21 below).

Hereditary peers

16.  The automatic right of hereditary peers to sit in the House of Lords was largely abolished in 1999. Section 1 of the 1999 Act (see paragraph 8 above) stipulates that no‑one will be a member of the House of Lords by virtue of a hereditary peerage. However, section 2 provides that ninety hereditary peers, as well as the peers holding the office of Earl Marshal and performing the office of the Lord Great Chamberlain (“designated peers”), are excepted from section 1. In short, this means that ninety-two hereditary peers are now eligible to sit in the House (“excepted peers”). According to the 1999 Act, the modalities for selecting and replacing the ninety non‑designated peers were to be established by Standing Orders of the House.

17.  Relevant Standing Orders were duly made. Standing Order 9 of the House relating to public business provides that the ninety-two excepted peers permitted to take seats in the House of Lords after the 1999 reform are to be composed as follows:

-  two peers elected by Labour hereditary peers;

-  forty-two peers elected by Conservative hereditary peers;

-  three peers elected by Liberal Democrat hereditary peers;

-  twenty-eight peers elected by Cross-bench hereditary peers;

-  fifteen peers elected by the whole House from among those ready to serve as Deputy Speakers or other office-holders; and

-  the peers holding the office of Earl Marshal and performing the office of Lord Great Chamberlain.

18.  The Standing Order further provides for any vacancy arising among excepted peers (through death, resignation or expulsion from the House) to be filled by the holding of a by-election. If the vacancy arises in respect of peers elected by groups, only excepted peers of the group concerned are entitled to vote in a by-election. If the vacancy arises in respect of the fifteen peers ready to hold office, the whole House is entitled to vote. The Clerk of Parliaments maintains a register of hereditary peers who wish to stand in any by-election. Standing Order 10 provides for the right of a hereditary peer to apply to be included in the register.

19.  On 3 December 2021, in the context of the second reading of the House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill, Lord Grocott criticised the operation of the system of by-elections and noted:

“Then there was the splendid example on 1 June of the by-election for a new Labour Peer following the death of my noble friend ... The electorate to replace him consisted of the three remaining Labour hereditary Peers ...”

Life peers

20.  Life peers are nominated by the Prime Minister and appointed to the House of Lords for their lifetime by the Monarch. There are various possibilities for a Prime Minister to nominate a person as a life peer, including to boost the strengths of the three main political parties and to bestow honours on particular individuals.

21.  The independent House of Lords Appointments Commission was established in 2000 to make recommendations for life peerages and to vet the nominations proposed directly by the Prime Minister. Any British, Irish or Commonwealth citizen over the age of twenty-one and resident in the United Kingdom for tax purposes may apply to the Commission to become a life peer, and as such a member of the House of Lords. Since the Commission’s establishment in 2000, it has recommended around seventy people for peerages, all of whom were subsequently appointed to the House.

COMPLAINT

22.  The applicants complained under Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1 that they could not stand in by-elections to the House of Lords under the 1999 Act because they were women.

THE LAW

Joinder

23.  Given their similar factual and legal background, the Court decides that the five applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

Complaint under Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1

24.  The applicants argued that they were precluded from standing for election to the House of Lords because they were women. They expressly clarified that they were not seeking to challenge the sex discrimination inherent in the letters patent establishing their families’ hereditary peerages. Rather, they sought to challenge the fact that, in their view, sex discrimination “had been entrenched in a statute of the United Kingdom, namely the House of Lords Act 1999, and in the Standing Orders of one of the chambers of the United Kingdom Parliament, which prevent [us] from standing for election to the House of Lords”. This was because these instruments made provision for vacancies among the excepted peers to be filled by by-election; however, as women could only exceptionally succeed to a hereditary peerage, they were essentially excluded from standing as candidates in the by-elections.

25.  Article 14 of the Convention and Article 3 of Protocol No.1 provide, in so far as relevant, as follows:

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex ....”

Article 3 of Protocol No. 1

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

26.  Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. It is therefore necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010, and Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts)).

27.  Article 3 of Protocol No. 1 applies only to the election of the “legislature”, or at least of one of its chambers if it has two or more (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 53, Series A no. 113, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 40, ECHR 2009; see also the travaux préparatoires, vol. VIII, pp. 46, 50 and 52).

28.  In Cumhuriyet Halk Partisi v. Turkey ((dec.), no. 48818/17, § 37, 21 November 2017), the Court further emphasised that the ambit of Article 3 of Protocol No. 1 was limited to “elections”, held at reasonable intervals, determining the choice of the legislature. It said that the wording of the provision was a strong indication of the limits of an expansive, purposive interpretation of its applicability: the object and purpose of the provision had to be ascertained by reference to the wording used in the provision.

29.  Article 3 of Protocol No. 1 provides both a guarantee of elections and guarantees concerning the modalities of elections within its scope. In this latter respect, Article 14 may be relevant where the allegation is that the requirements applicable to the right to vote or stand for election discriminate against an applicant on the basis of one of the grounds set out in that Article. In a case where the complaint is about an absence of elections, it will suffice for the Court to examine whether the complaint concerns a “legislature” in order to determine whether the complaint falls within the scope of Article 3 of Protocol No. 1. However, where applicants complain about the modalities of elections, they must demonstrate, in addition, that the elections in question fall within the general scope of that provision. In the present case, the applicants invoke Article 14 to challenge the modalities of the by-elections to excepted peer seats in the House of Lords. The Court must therefore examine whether the complaint concerns a “legislature” and whether the by-elections fall within the general scope of Article 3 of Protocol No. 1, having regard to the object and purpose of the provision (see paragraphs 27-28 above).

30.  As to the former, the Court notes that the complaint concerns the House of Lords, one of the two chambers that together make up the national parliament of the United Kingdom. The Court is satisfied that the parliament of the United Kingdom constitutes a “legislature”, and that the House of Lords is a part of that “legislature”.

31.  As to whether the by-elections fall within the general scope of Article 3 of Protocol No. 1, the Court observes, first, that the electorate for any given excepted peer seat may take one of five different forms depending on the vacancy (see paragraphs 17-18 above). At its very highest, it consists of all of the members of the House of Lords and at its lowest, it may be very restricted indeed: on one recent occasion, it consisted of three hereditary peers (see paragraph 19 above). But whatever the electorate, since none of the members of the House of Lords are themselves elected by voters in the United Kingdom, the by‑elections do not constitute direct or even indirect elections. More broadly, it cannot be said that the by-elections are aimed at providing the electorate in the United Kingdom with the opportunity to express its views on the choice of the legislature, which is the purpose of parliamentary elections falling within the scope of Article 3 of Protocol No. 1 (see, mutatis mutandis, Cumhuriyet Halk Partisi, cited above, § 39).

32.  Second, the Court notes that successful candidates are elected for life to the House of Lords. Once the original composition of the excepted peers was determined following the entry into force of the 1999 Act, no further provision was made for general elections to all hereditary peer seats. Instead, by-elections are held only upon the death, resignation or expulsion from the House of the holder of a seat (see paragraphs 17-18 above). The by-elections therefore do not take place at regular intervals and their timing is not aimed at ensuring that fundamental changes in prevailing public opinion are reflected in the opinions of the representatives of the people (see Timke v. Germany, no. 27311/95, Commission decision of 1995, Decisions and Reports no. 82-A, p. 158).

33.  Finally, the Court notes the nature of the reform to the House of Lords which took place in 1999 and the introduction of the notion of excepted peers (see paragraph 16 above). It is plain that the purpose of the system of elections and by-elections envisaged by the 1999 Act was not to ensure the free expression of the people in the choice of the legislature but rather to reduce the number of hereditary peers then entitled to sit in the House of Lords. This is reflected in the fact that the pool of candidates is restricted to hereditary peers; the fact that only ninety seats out of a membership of around eight hundred in the House of Lords are filled by way of a vote; and the fact that, as already explained, the reform did not provide any possibility for the expression of the will of the voters of the United Kingdom in the system of elections envisaged (see paragraphs 13, 16 and 31 above).

34.  In conclusion, the Court does not consider that the by-elections held upon the death, resignation or expulsion from the House of Lords of an excepted peer can be said to constitute elections which contribute to ensuring the free expression of the opinion of the people in the choice of the legislature. Having regard to the object and purpose of Article 3 of Protocol No. 1, the Court concludes that by-elections under the 1999 Act do not fall within the general scope of this provision.

35.  In these circumstances, the applicants’ complaint about their ineligibility to take part in by-elections to the House of Lords does not fall within the ambit of Article 3 of Protocol No. 1. It follows that Article 14 of the Convention is not applicable in the present case and that the applications are incompatible ratione materiae with the provisions of the Convention and must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;Declares the applications inadmissible.

Done in English and notified in writing on 8 June 2023.

 

 Ilse Freiwirth Yonko Grozev
 Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Place of Residence

Nationality

Represented by

1.

34442/18

Field v. the United Kingdom

12/07/2018

Tanya FIELD

1971

Oxford

British

DLA Piper UK LLP (Mr P. Hardy)

2.

34472/18

Dundas v. the United Kingdom

12/07/2018

Eliza Constance DUNDAS

1998

Richmond

British

3.

34478/18

Franks v. the United Kingdom

12/07/2018

Willa FRANKS

1973

Stockbridge

British

4.

34484/18

Clegg Littler v. the United Kingdom

12/07/2018

Sarah Victoria CLEGG LITTLER

1958

London

British

5.

34596/18

Byng v. the United Kingdom

12/07/2018

Henrietta BYNG

1977

London

British

 

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