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Lord Northbrook: The noble Lord kindly explained to me around a week ago over dinner how his ingenious system works. As a point of order, can he say how the Cross-Benches weighting works? The whole idea of the weighted average system, which I hope my noble friend Lord Ferrers has had time to digest over the past week, is a good idea. It is simple; it is ingenious in its simplicity and achieves what the Government require in a just and equitable manner, albeit over a slightly longer period than perhaps they wished.

Lord Randall of St. Budeaux: I have regarded everybody who is not on the government side--the Cross-Benchers, the Liberals and the Conservatives--as being equal; whether or not one is hereditary, all are equal. The system that I have devised would multiply the votes on this side of the Chamber by the weighting factor.

In practice, the principle of this weighting system would be placed before the Procedure Committee. Indeed, the Clerk of the Parliaments would actually draw up the formula and put it before the Procedure Committee. It would then, in turn, be endorsed by the House. So the principle of the system would be laid down by this Chamber. Again, that is placing the

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responsibility in this House rather than having it carried out by the executive. The more that we do in this House as parliamentarians, rather than the executive, the better.

Lord Goodhart: Before the noble Lord sits down, I wonder whether he realises that anything fewer than 25 votes for each Member of the Liberal Democrat Benches would be wholly unacceptable to us.

The Earl of Caithness: I am grateful to the noble Lord, Lord Randall, for what he has said. Indeed, it has helped to clarify the thoughts that gave rise to the amendment. It has also proved how useful a Committee stage can be in this Chamber because, on Report, we could certainly never have had this debate in preparation for a further stage. I even hope that the noble Lord, Lord Goodhart, if he paid attention, has learnt something that he would not have learnt by the moving of any of the subsequent amendments that he wanted to discuss. I say that because none of them refers to a weighted voting system.

I shall read the noble and learned Lord's response with interest. I shall also read with interest the paper that the noble Lord, Lord Randall, is going to place in the Library of the House; indeed, all noble Lords would benefit from doing so. Again, without this debate, the noble Lord would not have been able to say that he was going to do so and have that fact recorded in the Official Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Lord Norrie moved Amendment No. 14A:

Page 1, line 5, at beginning insert ("Subject to subsection (2A)")

The noble Lord said: The time has come for close scrutiny of this Bill, most particularly its legalities. As I have said in earlier speeches, I have observed many alternative proposals for the reform of this House, some of which appear to most as convenient structural fixes. I am deeply concerned with the legalities of what this Bill purports to enact. I believe that it is defective in law.

A great deal of time and attention is being given to restructuring the House as a reform; but little, if any, is given to the far more substantive issue of a Bill removing hereditary rights. Does that difference of attention mean that we are not to be concerned with the legalities of the Bill? Alternatively, are we concerned only with how the House will be restructured?

In moving Amendment No. 14A, I should like to speak also to Amendments Nos. 30A and 68A as grouped on the list. The purpose of Amendments Nos. 14A and 30A is based on the existence of property and personal rights of hereditary Peers, created by Letters Patent under the Great Seal. These rights are to a seat, a place and a voice in the Parliaments and assemblies of the United Kingdom.

In addition to rights created by Letters Patent, our common and customary laws for centuries, well before legal memory, have recognised as valid and enforceable the rights and property acquired by usage. The law indicates that these rights are acquired by a defined group, without use of force, about a specific place and

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openly for all to see. There are many substantive case-law precedents which affirm and recognise these rights, but which this Bill will remove.

Letters Patent may be abolished by statute. That is no different from a government abolishing all wills and deeds and covenants of property.

However, it is not parliamentary practice for common laws, particularly those concerning property and title, to be abolished by Parliament without first appointing a law commission to review them and Parliament considering its recommendations. The Government have not followed that practice.

Customary law is the foundation of parliamentary law. Custom is the sole basis in law for the process used to enact Bills into statutes. To abolish one customary law, especially concerning property, presents an undermining of and a challenge to all our laws based on and existing by custom. Such abolition challenges a fundamental principle of our English laws and does so without proper advice and consent.

All Peers have property rights in the Palace of Westminster. These rights of property are the same as those recognised in our courts, such as to walk across another man's field to attend church; to take water from a spring; to hold a horse race; to use another man's beach for drying fishing nets; or to hold a fair. Such rights are the basis and not the result of our constitutional laws. In my previous speeches on the reform of this House I proposed the convention of the constitution by which hereditary Peers would agree not to have their votes taken into account. This is the proposition in my Amendment No. 68A. The great advantage of this amendment is that the Government would not need to introduce a Bill to abolish Letters Patent, nor rights existing in common law and custom. It also avoids having to pass a Bill to annul each Letters Patent for each hereditary peerage and the parliamentary time and expense of so doing.

The aim of Amendment No. 68A is for the hereditary Peers to secure a statutory protection of their vote but that their votes are not taken into account in the passage of Bills and the rules of procedure in this House. At the same time the personal and property rights of hereditary Peers to attend, sit and speak would remain as established by common law and Letters Patent. A vote not counted is better than no vote at all. Even though by this amendment votes of hereditary Peers would not be counted, their views and opinions would still remain a valued and enduring indicator of opinion in Parliament. The revising role of the House is sustained by the quality of its best opinions. Hereditary Peers will remain a constant and abiding influence on governments and they will acquire perhaps even more profound influence when not associated with partisan views. Surely it is a mistake to believe that all power rests solely in a vote. Well formulated and delivered opinions and policies form the will of an electorate. As the pen is mightier than the sword, so a sound and independent opinion forms the vote.

I am glad to see that the noble Earl, Lord Longford, is present. His amendment suggests a two-Writ system. However, that amendment would specifically omit any

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voting by hereditary Peers. It would remove the right to vote completely. My amendment preserves the vote but not the right to have it taken into account. It provides for the greater democracy in Parliament desired and sought by the Government but without the need to abolish legal rights. It also takes into account the truth that the Government do not have a mandate from the electorate to rescind the property rights of hereditary Peers. They have a mandate to reform the House of Lords, but the Government did not declare how they would proceed. Their mandate cannot possibly be interpreted as an authority for them to abolish property rights, except perhaps by the most devious and tortuous twisting of the real significance and meaning of a political manifesto.

In my Second Reading speech the noble and learned Lord the Lord Chancellor intervened before I sat down and asked me whether I challenged Parliament's power to rescind Letters Patent. I supported my reply in a letter to the noble and learned Lord where I answered no. However, I also said that the Government could not claim to have a mandate from the electorate to rescind property rights. This was never mentioned in the Labour Party's manifesto and therefore cannot have been supported by the electorate. My amendment would enact a protection and continuation of property rights without opposing the reform of this House; nor would it be adversarial to the Government's desire to achieve greater democracy in Parliament. I sincerely hope that the Government will see the pragmatism of my amendments.

Hereditary Peers would never have attracted such political focus if their votes were not counted in making the laws in Parliament. The amendment, if enacted, will relieve the problem of the inherited political power of an embedded Conservative majority.

This group of amendments also deals with matters concerning property rights created by Letters Patent and with the consequential legal issues invoked by the Statute of Westminster and the European Convention on Human Rights. These two matters will be examined in greater detail in relation to my Amendments Nos. 111A and 120A at a later stage. But I touch on the Westminster Statute and European human rights issues today because my Amendment No. 68A moderates the need to invoke the Westminster Statute and avoids human rights challenges in the courts.

The need to obtain the consent to this Bill from all the Commonwealth Parliaments is mandated in the preamble to the Statute of Westminster 1931. That is because, by removing the rights of hereditary Peers created by the sovereign's Letters Patent, the Bill directly diminishes the sovereign's own hereditary rights. By its very purpose, the Bill more than touches on the Queen's titles. It removes the hereditary right of our sovereign to create hereditary Peers who have the right to be Members of this House. That is the very substance of the sovereign's hereditary right. It is the Queen's right, inherent with her titles, to create hereditary Peers with the right to be Members of this House. By this Bill, the Queen and her successors will

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no longer be able to create hereditary Peers with a right to membership of this House. That is the basic purpose and effect of the Bill. As such, it directly invokes the Statute of Westminster since it changes the sovereign's rights and titles. I refer noble Lords to the preamble to the statute for serious consideration. If your Lordships and the Government will consent to it, my amendment avoids those profound dilemmas.

The amendment also avoids the prospect of an application to the European Court of Human Rights to decide whether the removal of an embedded Conservative majority in this Parliament is lawful. In the debate on the White Paper, I referred noble Lords to the successful Turkish case in the European Court. In my speech at Second Reading I stated that the Government are motivated by a political objective; namely, to remove a political group and thus change our constitution in so doing. That cannot be accepted as a lawful motive to achieve constitutional or democratic reform of our parliamentary government.

The Turkish case decided that it is not lawful under European human rights laws to exclude a group from political participation simply because it is politically regarded as undermining the structures of the state. The fact that this Government pursue greater democracy does not morally or lawfully entitle them to violate human rights laws. Thus my amendments provide a practical compromise and a legal alternative to achieving the greater democracy that the Government seek.

The Turkish decision protects the rights of all individuals, regardless of their political affiliations. Therefore I have to reject the view expressed by the noble Baroness the Leader of the House in the Explanatory Notes on the Bill that its provisions are compatible with the European Convention on Human Rights. They are not. These amendments avoid those traps and snares that the Government have set for themselves and for the Opposition, and which lie set and ready in the provisions of the Statute of Westminster and the European Human Rights Convention and laws. The Government should carefully consider the substantial features of my amendments. I believe that they provide far stronger credentials to achieve greater democracy in Parliament than does this Bill.

Finally, will the Minister give the Committee an assurance that the Government, both prior to and during the passage of the Bill in Parliament thus far, have consulted with the Queen concerning the effect of the Bill in abolishing Her Majesty's hereditary rights and titles? If so, will the Minister also assure the Committee that the Government have advised the Queen, as Head of the Commonwealth, about the provisions of the Statute of Westminster 1931? Furthermore, have they advised Her Majesty that the Bill invokes the statute and thus its mandatory requirement to obtain the approval of the Commonwealth parliaments? I am willing to accept answers in writing to those questions if the Minister is unable to respond tonight. I beg to move.

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9.45 p.m.

Lord Strabolgi: I am sure that we are all grateful to the noble Lord, Lord Norrie, for explaining the purpose of his amendments. As I understood him, he said that his Amendment No. 30A gave personal and property rights to enter, sit and speak in the House of Lords as granted by Letters Patent. Letters Patent create a peerage and give the right to receive a Writ of Summons to attend Parliament. It is the Writ of Summons that must be presented, as was debated earlier today, before a Peer takes the Oath of Allegiance, either on introduction or at the beginning of any new parliament.

As was said earlier, Clause 4(2) makes clear that the right to receive a Writ will be abolished by the Bill--except perhaps for the various Peers who may be allowed to stay for a temporary period if the Weatherill amendment is accepted. Thus if any hereditary Peer arrives at the start of a new Parliament, claiming his rights under common law or based on the Letters Patent, and relying on his Patent as a talisman, he will not be able to sit unless he has taken the Oath--and he cannot take the Oath if he has no Writ of Summons. The amendment is therefore flawed in that way.

The amendment is also flawed because it does not include all hereditary Peers. It relates only to peerages created under Letters Patent. This would exclude the 35 or so hereditary Peers who hold baronies created by a Writ of Summons, of which I am one. Baronies by Writ are the oldest baronies of all and are not dependent on Letters Patent, certainly not the 13 extant baronies dating from before 1387 when the first Patent was issued exceptionally by Richard II to John Beauchamp, who became Lord Kidderminster. Baronies by Writ are baronies of England and differ from the later baronies of Great Britain and the United Kingdom created by Letters Patent in that they allow descent to heirs general rather than to heirs male, thus allowing women to succeed, I am very glad to say, and, since 1963, to sit. I have no Letters Patent--your Lordships may think that it would not be of very great importance if I was not allowed to sit--but I have asked a number of other holders of Baronies by Writ whether they possess Letters Patent. Everyone said that they did not, and one or two said that they had never heard of them.

Amendment No. 30A is an attempt to circumvent the provisions of the Bill. It is basically unsound and based on a false premise. I hope that the noble Lord will withdraw it. If he does not, I hope that the Committee will reject it.

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