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If one is going to do something specific, one really ought to draft the legislation to do that, and not to leave anyone in any doubt. Leaving people in doubt may have been good enough at one time, but it is not good enough now. I certainly think that one of the roles of this House is to ensure that people are not left in any doubt, that there is not a potential legal challenge. There can always be potential legal challenges, but we have a duty to try to ensure that we have covered all eventualities so that a legal challenge does not arise that was foreseen during the course of the Bill's passage. So we must examine this matter carefully.
Over time, this House has made clear its view that the law ought to be clearly made, so that political matters and judgment matters of a political nature are not left to the courts if that can possibly be avoided. Mr. Lofthouse's opinion, as will some of the views that we shall probably hear later in this debate, casts doubts on the drafting of the Bill. It suggests that the Bill may not actually achieve the Government's objective. I humbly submit that my amendment might better achieve that objective, without making any judgment as to whether or not I like it. I look forward to hearing the remarks of the noble and learned Lord the Lord Chancellor--
Lord Richard: Before the noble Lord sits down, in view of the distinguished names that appear on this amendment--the quartet that we see is a very official one on behalf of the Opposition--can we take it that it is now the policy of Her Majesty's Opposition that no one shall receive a Writ of Summons to attend the House of Lords by virtue of an hereditary peerage, or is this merely a drafting nonsense?
Lord Mackay of Ardbrecknish: I thought I had made that clear, even to the noble Lord, Lord Richard. As I have said, this House often tidies up, tries to improve and probes legislation of which it does not approve. When we were in government the Opposition, led by the noble Lord, did that on a number of occasions on propositions of which they heartily disapproved. It stopped them tabling probing amendments, clarifying amendments, to ensure that the legislation meant exactly what it said. That is exactly what I am doing. I am trying to ensure that we take the view of a proper revising Chamber and ensure that the legislation means what it says. We shall discuss whether we like what it says later.
Lord Mackay of Ardbrecknish: I never thought to ask the noble Lord the same kind of question when he tabled amendments to Bills that I was proposing when I knew that he did not approve of the Bill in total. It still did not prevent the noble Lord and his friends from tabling amendments, not wrecking amendments but probing amendments. I have tabled this amendment because I believe it is our duty to explore how the Bill operates, whether it is correctly drafted and how it works. I thought that I made our views perfectly clear at Second Reading.
Lord Elton: Before my noble friend sits down, will he confirm that it would be entirely wrong of this Front Bench or this House to allow a Bill to go forward knowing that it could not have the intended effect, and it therefore has a duty to probe this question; and that that is not a commitment to any policy except that of seeing that legislation works?
Lord Mackay of Ardbrecknish: I am grateful to my noble friend, who has had long experience. He has played a distinguished role, both in and out of government, in ensuring that legislation is questioned and properly drafted. He is absolutely right. I beg to move.
Lord Mayhew of Twysden: Perhaps I may trouble the Committee briefly in support of the purpose for which my noble friend declares he has proposed the new clause. I wonder whether it would not be prudent for the Government to take seriously the anxieties expressed by my noble friend, and to consider whether there may not be another means by which their declared objective can be achieved.
We are not talking about the merits of the Government's policy or what we feel about it. It can be easily described. It is to turn the hereditary Peers out of Parliament, and to do so at the end of this Session. What we are talking about is whether or not the language chosen to effect that policy actually does the job.
Like my noble friend, I feel a certain sense of paradox in seeming to attempt to help the Government to do their job. But I have always understood it to be central to the functions of this House that it pays careful attention to the quality of the legislation that is brought before it. I ask the noble and learned Lord the Lord Chancellor
As I have said, there is no difficulty in stating the Government's policy clearly. The trouble arises in their determination to use the concept of a Member of the House of Lords being a Member by virtue of a hereditary peerage; and by declaring in Clause 4(2) that the Writ of Summons of such a person shall not have effect after this Session. That is the problem that confronts us. Does the noble and learned Lord the Lord Chancellor agree that any Bill which purports to remove a component of Parliament--to eject part of Parliament--has to be expressed in crystal-clear language? I say that because it will be examined very closely and construed very tightly by any tribunal--it will probably be the Committee for Privileges--that is called upon to resolve the challenge.
Is there not a real argument that it is not until a Peer has received and obeyed a Writ of Summons and taken the Oath or affirmed that he or she becomes a Peer who is a Member of your Lordships' House? Is there not a real argument to that effect? Can it realistically be said that a Peer is a Member of the House of Lords when he or she cannot perform the function and duty of sitting and voting here because there has been no Writ of Summons? Is such a person's position not this: that he holds a peerage certainly, whether hereditary or life, but he is not a Member of the House of Lords?
The Government believe that their purpose of turning out hereditaries at the end of this Session is achieved, however curiously in point of form, when one reaches the commencement clause, Clause 4(2), which reads as follows:
I have had the advantage of seeing the letter which the Lord Chancellor kindly sent to my noble friend Lord Strathclyde. Rather interestingly, the Lord Chancellor said in his letter that parliamentary counsel considered alternative approaches, including operating directly on the Writ of Summons in Clause 1, which this new clause precisely does. However, he said that the main reason for not doing so was the wish to get at the heart of the matter. That is all well and good, but where does the heart of the matter lie? It seems seriously possible, I suggest with great respect, that it lies not in the holding of a hereditary Peerage but in the receipt of and obedience to a Writ of Summons.
There are certainly other ways in which the declared intention of Clause 1 and Clause 4(2) could be more reliably achieved. The language might not be so sonorous; it might not be so welcome or agreeable to certain partisan eyes and ears; but it would very probably be better law. I trust that the Government will think again.
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