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Noble Lords: Oh!

Lord Mackay of Ardbrecknish: I did not mean that!

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 Peston: It looks as though we are playing a peculiar game here. My noble friend Lord Richard

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deserved a straight answer. Let us assume, hypothetically, that by some miracle your Lordships, even without my noble and learned friend the Lord Chancellor rising to reply, agreed the amendment. The Bill would then include an amendment proposed by official Opposition spokesmen stating categorically that hereditary Peers would no longer receive Writs of Summons. Can we then assume--since I cannot believe that the noble Lord, Lord Mackay of Ardbrecknish, would play games with us--that through the rest of the Bill's passage, having got their own way in amending the Bill, seriously as they think, the Opposition would then nod through the whole of the rest of the Bill having improved it beyond all measure? Or shall we continue day after day playing these ludicrous games?

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

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whether he is satisfied with the language that has been adopted in the Bill, or whether he thinks that it may be the case that different language would yield a more sure result.

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?

This would not matter if the Bill did not proceed on the basis that it is using the nomenclature or title of,


    "a member of the House of Lords". I ask in passing whether that has ever been construed judicially and whether it has ever been defined. It is not defined in the Bill. What definition do the Government give? If my suggestion is right, in plain language surely it is by virtue of the Writ and obedience to the Writ that a hereditary Peer becomes a Member of the House of Lords and not by virtue of his hereditary Peerage. I do not know whether that argument is right; I do not know whether that argument is wrong; but I believe that it has substance and that it needs both a convinced and a convincing answer.

Much more important than my own views on the subject are the views of Mr. Lofthouse, a Treasury Counsel in peerage matters and someone of great experience and standing, who was referred to by my noble friend Lord Mackay. Is it not the case that Mr. Lofthouse, in his opinion, which I know the Lord Chancellor has seen, cites much House of Lords authority? Given these rather unsatisfactory and certainly unusual circumstances, would it not be wise for the Government to reflect that there are more ways available to them of skinning this cat? I suggest that the new clause is one of them--or at least it is part of one of them--because it reflects the primacy of the Writ of Summons by stopping any hereditary Peer from sitting and voting here because he will not have received a Writ of Summons. No doubt other forms of words could be found to achieve the same result.

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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:


    "Accordingly, any writ of summons issued for the present Parliament in right of a hereditary peerage shall not have effect after that Session". But again I ask the Lord Chancellor: does that language itself not have problems for the Government? Can it not be argued with some substance that a Writ of Summons is spent once we attend in obedience to it, hand it over and take the Oath? I understand, although I have not checked up on this, that to mark the fact that it is spent, a line is struck through it by the Clerk. It has no continuing effect once we have obeyed the command which it embodies to attend in your Lordships' House. So it rather looks as if the current language in the Bill, although it will not be wholly ineffective, will catch only those hereditary Peers who have failed by the end of this Session to turn up, to obey a Writ of Summons. It will catch, if I may say so, the backwoodsmen, but only the backwoodsmen.

It could be said that that is perhaps not a bad thing; if you happen to take that view, although it is immaterial whether you do or you do not. But whether it is a good thing or a bad thing, it is not the Government's thing. I suggest that this language will lead to many a challenge in the Committee for Privileges with which the Lord Chancellor, among others, would have to deal. Apart from anything else, there is an interest in making sure that the Bill is as clear as it can be.

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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