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Lord Davies of Coity: Like the noble Lord, Lord Mackay, I am not a lawyer either. But if the amendment were carried it would shift the emphasis away from hereditary peerages to the Writ of Summons. The amendment states:
Lord Trefgarne: Perhaps I may assist a little by reference to my own experience. My late father died in 1960 when I was only 19 years of age. I succeeded to the title. I became Lord Trefgarne the very moment my father passed away. But I was not allowed at that point to sit in your Lordships' House. I had, first, to prove that I was indeed my father's son. That, happily, presented no difficulty. I received a letter from the then noble and learned Lord Chancellor saying that he was satisfied that I was who I was and that he would have authorised a Writ to have been issued had I been 21. So clearly I was a hereditary Peer at that point but not allowed to sit in your Lordships' House because I had not received a Writ of Summons and was not entitled to receive one at that age.
I think that that underlines the point which Mr. Lofthouse has made: that it is the Writ of Summons which gets us into the House, not just being a hereditary Peer. I therefore support the amendment proposed by my noble friend.
The Lord Chancellor (Lord Irvine of Lairg): The noble Lord, Lord Mackay of Ardbrecknish, has confirmed that this amendment arises out of the opinion of a member of the Bar, Mr. John Lofthouse, dated 14th April 1999. I do not in any way desire to detract from Mr. Lofthouse's standing at the Bar. His learning in peerage law--and some peerage law is very ancient; it is a very arcane area of the law--is well acknowledged. But, just for the record, he is not a Queen's Counsel.
His opinion has been widely circulated. His basic contention is that the Bill in its present form will not be effective in excluding hereditary Peers from your Lordships' House. If that were right it would cause great concern to the Government. We should then be welcoming Mr. Lofthouse's opinion as a gift from the gods and setting parliamentary draftsmen to work to make the Bill effective.
No one is more grateful than me for all the assistance that I receive from every and any quarter. Life is so difficult that I could not say otherwise. But I have considered Mr. Lofthouse's opinion with very great care and I am satisfied that the Bill is effective as it stands without the need for any amendment.
The issue is whether the courts would construe the Bill (when it passes) to give effect to its well known purpose. The judges, in common with everyone in the country, know what the Government's purpose and objective is. It is to remove the totality of the rights and duties which members of the hereditary peerage have in their capacity as Members of the House of Lords; and the courts would unquestionably construe the Act to give effect to its manifest and well known objective, which is that the totality of these rights and duties will be removed, without any exception at all, once the Act comes into force, in terms of the Bill as now expressed.
The Bill has great merit in that it is expressed in the plainest of plain English so that anyone can understand. Just as Clause 1 is admirably clear, so also are Clauses 4(1) and 4(2). Clause 4(1) provides, subject to the stated exceptions, that the Act,
"any writ of summons issued for the present Parliament ... shall not have effect after that Session". Thus, Clause 4(2) provides that the consequence of Clause 1 and Clause 4(1) will be that, at the end of the Session of Parliament in which the Bill is passed, any Writ of Summons issued for the present Parliament in right of a hereditary peerage, shall thereupon become null and void in law. That, for the avoidance of any doubt at all--although I am confident that there is none--is the meaning the Government intend for the words in Clause 4(2),
"shall not have effect after that Session".
I confidently advise your Lordships that that is what the Bill intends and means and that that is how the courts would construe it in order to give effect to its manifest and well known objective. For myself, I am clear that the purpose and objective of Clause 1 of the Bill is in no way ambiguous or obscure. But, lest the contrary view be subsequently argued in any court, or any court be minded to conclude that Clause 1 is in any respect whatever ambiguous or obscure, or lest that be argued pursuant to any Petition for Admission or Writ of Summons, let me say on behalf of the Government that for their part they regard the purpose and objective of Clause 1 to be precisely as I have just stated it to be.
The Lord Chancellor: With great respect to the noble Earl, Lord Ferrers, I believe that his final observation is not worthy of his general observations to this House; nor is it representative of him. I made it absolutely clear--I chose my language with deliberate care--when I said that the Government, for their part, regard the purpose and objective of Clause 1 to be precisely as I have just stated it to be. I repeat, "for their part". It is for the courts, of course, to construe this Act when it comes before them as the courts think right. Nothing that I said was intended to, or could, derogate from that.
Clause 4(2) will primarily bite upon a Peer who has received a Writ of Summons for the present Parliament, but has not taken his seat. In accordance with Clause 4(2), if the Bill passes in this Session, it will come into force at the end of the Session. Then the Writ of Summons not responded to will become null and void as a matter of law.
Lord Rees: Could the noble and learned Lord explain a particular point arising out of Clause 4(2)? To what degree and in what way is a Writ of Summons effective during the course of a Parliament in relation to a Peer who has accepted the Writ and taken his seat?
The Lord Chancellor: The effect of Clause 1 is that a Peer who has received a Writ of Summons and taken his seat ceases upon the Bill's coming into force to be entitled to be a Member of the House of Lords by virtue of a hereditary peerage.
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