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Lord Glenamara: My Lords, I was a member of the committee and should like to say just a few words. There is a small constitutional point involved which has not been mentioned. There is a theory, which has some validity in history, that an hereditary barony can be created if a Writ of Summons is issued in error; indeed, there are one or two cases in history where that has happened. After 1922, the Writs of Summons continued to be issued, although perhaps they ought not to have been. Whoever sends them out kept on doing so. But it was made absolutely clear that they were for life. Therefore, in this case, an hereditary barony could not be created because the Writ of Summons made it

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abundantly clear that they were for life. Thus the petition must fail. I am very sorry, but I must oppose the amendment moved by my noble friend. I hope that your Lordships will do likewise.

3.45 p.m.

Lord Bruce of Donington: My Lords, in view of the fact that my noble friend Lord Longford introduced my name into the matter, perhaps I may ask the leave of the House to be exempt from the proceedings.

Lord Strabolgi: My Lords, as a member of the Committee for Privileges, perhaps I may just say a few words. First, as my noble friend Lord Glenamara said, the Irish Peers did not sit by mistake. There was an original theory when we first began to sit that the Writs had been sent out by mistake after 1922. However, that was proved not to be so. They sat because they had been elected for life. Before 1963, the Scottish Peers were elected for the Parliament, but the 28 Irish Peers were elected for life. That was the reason that they were allowed to sit after 1922 until the last of them died—namely, the Earl of Kilmorey—in 1961.

We relied very much on a view of the Law Officers of the Crown very shortly after Irish Independence in a document dated 1925. One of them was Sir Douglas Hogg, the father of the noble and learned Lord, Lord Hailsham, and the other was Sir Thomas Inskip. They said:


    "It may well be contended that if the effect of the Irish Free State Agreement Act is to take away the right of the Irish Peers to be represented in the House of Lords, the existing representatives have no longer any right to be there. On the whole we have come to the conclusion that this argument is not well founded. We regard the Act of Union as conferring on the Irish Peerage the right to elect 28 of their body to sit for life as their representatives in the House of Lords: but we think that each representative Peer had conferred on him by the fact of his election the right to sit for life in the House of Lords and we do not regard that right, which is nowhere expressly dealt with, as necessarily taken away from the existing representatives by the legislation of 1922".

That is the point. They did not sit by accident which created the question of a Barony by Writ, although I may say here that, with all the precedents of Baronies by Writ which had been perhaps created by accident, there had always been an intention to create a peerage.

Further, I understand that no report of the Committee for Privileges, of which I have the honour to be a member, has ever been rejected by this House since the petition in the Rhondda case which was sent back by the Lord Chancellor of the day in the early 1920s for very different legal reasons. Otherwise, there is absolutely no precedent for what my noble friend Lord Monkswell, in his inimitable way, is attempting to do. Therefore, I hope that your Lordships will reject the amendment.

The Chairman of Committees: My Lords, I believe that the House would probably expect me to offer a few observations in reply to the amendment as moved by the noble Lord, Lord Monkswell. In doing so, perhaps I may thank the noble Lord for notifying me before he tabled his amendment that he was proposing to raise the matter in some way. Similarly, I should also like to thank the noble Viscount, Lord Mountgarret, for having also

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warned me beforehand that he intended to intervene in the debate. Further, I should like to thank all noble Lords and noble and learned Lords who took part in the debate. But, as a number of them have spoken, perhaps they will forgive me if I do not refer to each of them by name. I am especially grateful to the noble and learned Lords, Lord Hailsham of Saint Marylebone and Lord Jauncey of Tullichettle, for their contributions on the legal matters involved in the case.

In replying to the noble Lord, Lord Monkswell, it might be helpful if I were to remind your Lordships of what it is that your Lordships' House is actually being asked to do. Before doing so, I should like to refer to the remarks made by the noble Earl, Lord Longford, which were, if I may say so, most entertaining. However, I must confess that I did strain myself during the course of his speech to ascertain the precise relevance of what the noble Earl was saying to both the Motion and to the amendment. But then it came to me all in a flash: it was a speech that had to be made; after all, this is Wimbledon Fortnight.

A petition for a Writ of Summons to this House is not a petition directed to your Lordships: it is a petition to the Queen. On the advice of the Home Secretary and the Law Officers, Her Majesty the Queen refers the petition to this House so that the House may advise Her Majesty as to the law with regard to that petition. By long-established practice such petitions are referred to the Committee for Privileges which under Standing Order 75 is required to sit with the assistance of no fewer than three Lords of Appeal. We of course had four. When agreed to by the House, the decision is submitted to Her Majesty in the form of a judgment preceded by the words:


    "It is resolved and adjudged".

Such a decision is not therefore the opinion of a majority of your Lordships but a judgment. It is a judicial proceeding analogous to, although not wholly comparable with, a judgment following a hearing before an Appellate Committee. In those circumstances your Lordships may feel that the House should only rarely and for exceptionally compelling reasons seek to interfere with the report of a committee based on a judicial hearing at which Lords of Appeal were present and where those Lords of Appeal have given their judicial opinions.

The amendment of the noble Lord, Lord Monkswell, is in the form used in 1922, as the noble Lord, Lord Strabolgi, mentioned in the course of his remarks, which was the last occasion when this House asked the Committee for Privileges to reconsider a peerage case—the position of Viscountess Rhondda. On that occasion, as the noble Lord, Lord Strabolgi, reminded us, it was the Lord Chancellor who moved the amendment and he explained that he was taking that unusual course because in his view the Attorney-General had not put to the committee the relevant points of law—that is the significant word, as your Lordships will appreciate—which ought to have been considered.

On that occasion the House agreed to refer the matter back to the committee and the committee, having considered those points of law, made a second report in exactly the opposite sense from its first report. It is of

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course a matter for your Lordships, but the House may feel, particularly in the light of what the noble and learned Lord, Lord Jauncey, has said as a member of the Committee for Privileges, that the Rhondda case does not provide a suitable precedent for the present case in that there are no new legal arguments which would justify us asking the committee to consider or to reconsider the matter all over again.

I feel bound to add that if the committee were to consider the matter further, I have no doubt whatever that it would come to precisely the same conclusion. With these points in mind, and with that background and the background indicated by other noble Lords in the course of this short debate, I hope that the noble Lord, Lord Monkswell, will feel able to withdraw his amendment. If he felt unable to do so, I would be bound to advise your Lordships that it would be right not to support the amendment.

Lord Monkswell: My Lords, I thank all noble Lords who have contributed to the debate, which has been useful and informative. I wish to refer to a number of the submissions that have been made. In doing so I would advise the House that I am minded to withdraw my amendment but I think it would be for the courtesy of the House if I explained why. If I did not do so, the House would not be correctly advised.

The noble and learned Lord, Lord Hailsham of Saint Marylebone, in his inimitable style, discounted the ancient right of the creation of barony by writ of summons. I am not sure that he intended lèse-majesté—I am sure that would be a wrong interpretation—but we have as part of the proceedings of the committee a report which, as I believe the noble Lord the Chairman of Committees has advised us, was written by an expert on peerage law. It states that,


    "the Crown has the right to issue a Writ of Summons either (i) to a person who does not have a peerage at all, or (ii) a person whose peerage does not entitle him to a Writ of Summons".

I believe that that right still exists for the Crown.

The noble and learned Lord, Lord Hailsham, also said that the Barony of Farnham no longer exists. It does exist but the old Barony of Farnham does not entitle the holder to a seat in this House. The noble and learned Lord also said—and this is where I think he supported my argument—that the Act of Union had gone by the board.

The noble and learned Lord, Lord Jauncey—I am indebted to him for his contribution to this debate, which was welcome—advised the House that Lord Farnham continued to sit by virtue of election for life. This is where I take issue with the committee in the sense that it did not consider the basis on which that election for life was founded. My contention is that it was founded on the basis of the Act of Union of 1800. A number of noble Lords have effectively said, and the House has effectively said, that in the consideration of previous privileges committees it no longer existed after 1922. The noble and learned Lord made reference to the Scottish Peers. A number of them sat between 1707 and 1963 by virtue of that Act of Union which was not changed until 1963. The noble and learned Lord also suggested that it was not competent to issue a barony by writ. I have referred to that.

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I am indebted to the noble Lord the Chairman of Committees for reminding the House that this is consideration of a petition to Her Majesty and we sit in a judicial capacity in this sense. However, I would point out to the House that we are all equal in sitting in that judicial capacity.

I now come to the reason for withdrawing my amendment. That reason was given by the noble Lord, Lord Glenamara. He referred to a matter which I did not notice because it was not included within the proceedings—I can quite understand why—and that is that the writ of summons received by Lord Farnham had inscribed within it a condition that it was for life. That is the legal basis on which we can agree this Committee for Privileges report. I hope that we are not in error in presuming that the wording of that writ of summons makes it clear that it was only entitling the holder to a seat in this House for life because, as the noble Viscount, Lord Mountgarret, pointed out, I suspect that this is the last opportunity we may have to put this matter to bed. I beg leave to withdraw the amendment.

Amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to, and it was ordered that the resolution and judgment be laid before Her Majesty by the Lords with White Staves.


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