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The Earl of Dudley: I have some trepidation in taking on the noble and learned Lord the Lord Chancellor, but I do not believe that I am here by duty,

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inheritance or privilege, as he suggested; I believe that I am here by custom. I had been waiting for an eminent historian to make the point made by the noble Lord, Lord Goodhart, that for several centuries after Henry III called the first Parliament only a handful of Peers were summoned by Writ of the monarch to Parliament. They were generally those who were the monarch's choice. That prevailed until Tudor times. Indeed, it was not until Tudor times--when I think it was the responsibility of Thomas Cromwell, who wanted to pack Parliament in order to get through his statutes--that more hereditary Peers began to be called, and finally all hereditary Peers began to be summoned to Parliament by the monarch. So it is not a question of right or duty as a hereditary Peer; it is a question of custom.

There is a very strong point about this question of Writ of Summons; that if the Bill is directed towards the hereditary aspect of the peerage it may well, whatever the Lord Chancellor says, have a weakness, whereas if it is directed towards the Writ of Summons, it may be stronger and more cogent than at present.

The Lord Chancellor: In my opinion, the noble Earl, Lord Dudley, is in his seat by virtue of a hereditary peerage which inheres in him. The noble Viscount, Lord Cranborne, is here by virtue of a hereditary peerage which inheres in someone else--I believe his father. He was entitled to a Writ of Acceleration because of the good fortune that his distinguished father is entitled to many peerages. They were available to the noble Viscount when it was desired that he assume a seat in the House, and a Writ of Acceleration was available to him. The words,


    "by virtue of a hereditary peerage", in Clause 1 embrace the position of both the noble Earl, Lord Dudley, and the noble Viscount, Lord Cranborne.

Earl Ferrers: May I ask the noble and learned Lord the Lord Chancellor--

Noble Lords: No!

Earl Ferrers: I think I am entitled to do so. After all, my noble friend Lord Dudley said that he was frightened of asking the noble and learned Lord a question. I am not frightened of asking him a question, even if I am intellectually decapitated in the process.

The fact is that we are all hereditary Peers and life Peers--here by virtue of having received a Writ of Summons. If the Bill says, as the noble and learned Lord says it does, that as from a certain date hereditary Peers will have their Writ of Summons, as it were, removed from them--although for the reasons that have already been stated, that is impossible--how do the Government equate the fact that some Peers will have their Writs of Summons continued with the fact that some will have them truncated? Once that is done, do we not enter into the realms of hybridity?

Perhaps I may take the noble and learned Lord back to the Aircraft and Shipbuilding Industries Bill--the nationalisation Bill. He will not remember that, because he was too involved in what he described as the "fat-cat

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circuit", but I happened to be involved with the Bill when it was before the House. There was a row over it because it did not distinguish between those involved in ship-repairing and those involved in that business. So, some people were caught by the Bill and some were not. It was therefore hybrid. If the noble and learned Lord's premise is fulfilled and the Writ of Summons can be removed from some Peers but not from others, I respectfully suggest that that might put it into the realms of hybridity.

The Lord Chancellor: The noble Earl, Lord Ferrers, causes me to look back with gratitude and respect for the many years during which I was a member of the circuit which he chose to name in the way that he did. I readily acknowledge that the noble Earl is in no way afraid to ask me questions. I welcome them, and I am in no way afraid to answer them.

The point about Clause 4(2) is that it causes to be null and void Writs of Summons issued for the present Parliament in right of a hereditary peerage after the end of the session in which this Bill passes. Her Majesty has put her prerogative at the disposal of Parliament, and there is no question but that Clause 4(2) has the effect described.

Clause 1 precludes from membership of the House of Lords anyone who is a member by virtue of a hereditary peerage, who will by definition be here pursuant to the mechanism of a Writ of Summons.

Lord Glenarthur: As the noble and learned Lord the Lord Chancellor failed to answer it, I wonder whether he would pick up the point made by the noble and learned Lord, Lord Jauncey, who referred to a judgment made some time in the last century which specifically seemed to imply, if I understood him correctly, that the Writ of Summons is paramount in this case, and not the Letters Patent or anything else. The noble and learned Lord the Lord Chancellor has not answered that point at all.

The Lord Chancellor: I have no intention of getting involved in arcane questions of peerage law. What the Bill does is to address the substance of the matter, which is membership of the House of Lords by virtue of a hereditary peerage, a concept which the ordinary man in the street and the judges will have no difficulty in construing.

Lord Glenarthur: The noble and learned Lord the Lord Chancellor makes that perfectly plain, but is it not a matter of fact that if this is looked at in more depth it is seen to be a matter more for the courts to interpret than he has said? He cannot ride roughshod over history in all this. The noble and learned Lord, Lord Jauncey, put a legitimate point which the noble and learned Lord the Lord Chancellor has manifestly failed to answer.

The Lord Chancellor: I have just answered it. The Bill will take effect, and will be construed by the courts, in accordance with its manifest intention and effect. We do not dictate to the courts. On the contrary, we hold them in the highest regard for their independence. But

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it is my duty from this Dispatch Box to state clearly and unequivocally what the Government's intention, purpose and objective is by reason of Clause 1.

Lord Campbell of Alloway: Put in a sentence, it repeals settled peerage law on this point. It annuls the previous peerage law as it exists.

The Lord Chancellor: I do not accept that. The background may be previous peerage law, but I must remind the noble Lord, Lord Campbell of Alloway, that in this matter Parliament is sovereign and our manifesto commitment is as clear and unequivocal as I believe the Bill to be.

Lord Trefgarne: It seems to me that the cat is now out of the bag. Whatever may be the view and, indeed, the wish of the noble and learned Lord the Lord Chancellor, it seems to me now inevitable that one or other of the 700 or so hereditary Peers who will be excluded from the House of Lords by the Bill, if it is passed in its present form, will go to a court to get his position reinstated. Can the noble and learned Lord the Lord Chancellor say whether that will be subject to legal aid?

The Lord Chancellor: I would hesitate to say that it would not be in the public interest for any such point to be tested in the courts, but I doubt whether anyone who might embark on such an exercise, which I confidently predict would be doomed to failure, would qualify for legal aid.

The Earl of Northesk: I too am not a lawyer, but I should like to put one point to the noble and learned Lord the Lord Chancellor. As a non-lawyer, I must of course respect his conviction of the purpose of the Bill, but in respect of the Lofthouse opinion, if there is any credibility in it whatsoever, would it not be the case that recourse would not necessarily operate under the court system, but would, according to Standing Orders and the precedent of the Earl of Bristol case, involve a direct petition to the Crown?

4.30 p.m.

The Lord Chancellor: I could embark on a learned disquisition on the many ways in which this issue may become justiciable but that would trespass upon the patience of the Committee. But wherever this matter falls for judicial determination, since Her Majesty has put her prerogative at the disposal of Parliament for the purposes of the Bill, my confident expectation would be, on any petition for admission or Writ of Summons, that the Crown, in the exercise of its prerogative, would follow the law.

The Earl of Caithness: Like my noble friend Lord Trefgarne, I was a hereditary Peer before I received a Writ of Summons. If my memory serves me right--and this is the point I ask the noble and learned Lord to clarify--unless I applied for a Writ of Summons within a set time frame I was prevented from applying

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for it in the future. Therefore, I could have remained a hereditary Peer but not had the Writ of Summons. Am I right about that or did I have to apply to become a hereditary Peer and apply within a certain timescale?

The Lord Chancellor: I cannot answer that point off the top of my head. But I should be very surprised if there were a time limit.

Lord Hughes: I may be asking an unnecessary question but I notice that a subsequent amendment, Amendment No. 121, seeks to delete Clause 4(2). If Amendments Nos. 10A and 121 went into the Bill, would that mean that all those hereditary Peers who presently have a Writ of Summons would remain until the end of this Parliament?


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