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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 Peston: Before my noble and learned friend replies, I wish to make two points. I agree with the noble Lord, Lord Mackay of Ardbrecknish, that many of us here are laymen. He is, and I am. We have to be careful about involvement in these issues. Despite my earlier acerbic remarks, I always accept the bona fides of the party opposite. Perhaps I may say to the noble Viscount, Lord Cranborne, that I stand second to no one in wishing Bills to be properly drafted.

There is an easy solution to these matters. There is at least one other expert person on whom we can rely here; namely, my noble and learned friend the Lord

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Chancellor. I, for one, would like to hear his definitive response. I am tempted to think that it will be conclusive.

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.

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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,


    "shall come into force at the end of the Session of Parliament in which it is passed". Clause 4(2) provides that,


    "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".

The Government's objective in choosing the words in Clause 1,


    "by virtue of a hereditary peerage", is, by the intended breadth of the words, to make it plain beyond any doubt that the Bill when it passes ends the membership of this House by any Member whose membership is in any way connected with, or related to, a hereditary peerage. My noble friend Lord Williams of Mostyn will make the same point when he comes to reply for the Government to Amendments Nos. 19, 68 and 155, which are in the names of noble Earl, Lord Ferrers, and the noble Baroness, Lady Young.

Mr. Lofthouse's argument is that Clause 1 is ineffective as membership of the House of Lords is not "by virtue of a hereditary peerage", but "by obedience to a Writ of Summons". Obedience to a Writ of Summons, however, is the mechanism by which a seat is assumed, but it is not membership of the House of Lords itself. Clause 1 is intended without any qualification to preclude membership of the House of Lords by any person whose membership, if not so precluded, would be in any way connected with, or related to, any hereditary peerage.

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.

I regard this amendment as having given me, on behalf of the Government, a useful opportunity to put to rest any misunderstanding about the straightforward

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purpose and objective which Clause 1 is intended to secure. On that basis, I invite the noble Lord to withdraw his amendment.

4.15 p.m.

Earl Ferrers: Before my noble friend replies, will the noble and learned Lord explain the issue a little further? Clause 4(2) states that,


    "any writ of summons issued for the present Parliament in right of a hereditary peerage shall not have effect after that Session". However, the noble and learned Lord did not reply properly to the fact that a Writ of Summons invites a person to come here. Once he comes here, that Writ is expended and therefore it is not possible to halt the application of the Writ half-way through. If the noble and learned Lord wanted to travel from London to Edinburgh, bought a ticket and boarded the train, he would not think much of it if he were thrown out at Peterborough.

The noble and learned Lord did not address that issue. However, he did say--I found it alarming--that the courts will consider the Bill in the way that the Government want. He said that the Government "intend" this that and the other. Parliament intends and the courts will decide what Parliament itself has decided on.

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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