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Lord Trefgarne: The noble and learned Lord almost tripped up over his own words. It seems to me that there is some doubt about this matter. My noble friend Lord Gray has raised a very good point. I accept that the noble and learned Lord happens to think otherwise, but it is not clear beyond a peradventure. There is respectable opinion, respectable legal opinion, for the view contrary to that held by the noble and learned Lord, and that respectable opinion should be taken into account.

As my noble and learned friend Lord Mayhew made clear on an earlier amendment, there is respectable legal opinion on other matters in connection with the Bill as well. It is a sad fact that there are a number of profound

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legal questions about various aspects of the Bill, all of which I hope we shall explore during the Committee stage.

Lord Falconer of Thoroton: I should like to make it absolutely clear that I regard the noble Lord, Lord Gray, as absolutely respectable. However, the argument advanced here is utterly hopeless, and there is absolutely no purpose in giving the Committee any expectation that we shall reconsider the matter.

Lord Trefgarne: That is not entirely a question for the noble and learned Lord himself. In the end, it is a matter for the courts.

Lord Gray: I am grateful to the noble and learned Lord and others. I had better not prolong this debate, but I was a little upset that the noble and learned Lord repeated what I complained about, in that he equated us with UK hereditary Peers, a matter which is not in Section 4 of the 1963 Act. I still maintain that the words,


    "by virtue of a hereditary peerage", are the ones we should be looking at in terms of my arguments, not my possession of a hereditary peerage.

We have had a good discussion. I shall not threaten to come back but, on advice, I may come back. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Lord Marlesford moved Amendment No. 30:


Page 1, line 6, at end insert--
("(2) This section does not apply to any member of the House of Lords by virtue of a hereditary peerage who was on the day on which this Act is passed a member of the Privy Council.")

The noble Lord said: I hope that in moving this amendment I may receive slightly more sympathy from the Government than anyone has received so far.

My amendment would exclude from the provisions of Clause 1 privy counsellors who also hold hereditary peerages. They have had conferred upon them a distinction at least as great as--some of us would say greater than--a life peerage. They were in each case selected for this appointment by the democratically elected government of the day. It is therefore similar to the way in which life Peers and hereditary Peers of the first creation have been appointed.

It is that selection, presumably on merit, which the Labour Party uses to differentiate hereditary Peers, whom the Bill seeks to exclude from Parliament, from the life Peers, who are to remain ad interim.

I emphasise that I have paid the closest attention--and who would not?--to the Labour manifesto in attempting to produce an amendment which should be acceptable to the Government as not violating their manifesto.

One may perhaps add that while, from time to time, it has been suggested that some life Peers may have been appointed in return for favours, whether financial, personal or for party, as far as I am aware, no such aspersions have been made, at least in living memory,

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in respect of those appointed to the Privy Council, and most certainly not in respect of those who would be covered by my amendment.

At present, there are 495 members of the Privy Council. Of those, 195--40 per cent--are Members of your Lordships' House. Of the 195, 174 are life Peers or Peers of first creation. They will remain in any event. There are only 21 who first entered the House as hereditary Peers but who now have the distinction of being Privy Counsellors. That is 21 out of 750 hereditary Peers.

The great majority of those 21 would not have had open to them the opportunity of using the House of Commons as the route to distinguished public service. The 21 does not include those who entered the House as life Peers before succeeding later to an hereditary peerage, of whom there are two or three; nor those hereditary Peers of first creation who have received a letter from the Prime Minister offering them a life peerage. I recognise that it would be open to the Prime Minister to meet the purpose of my amendment by sending a similar letter offering a life peerage to those 21 privy counsellors who happen to be hereditary Peers. However, as it is not within the power of the Committee to do anything about that, it seems reasonable to raise the issue as an amendment to the Bill at this stage.

Before I develop my argument, I feel that I should read to your Lordships the names of those who, if my amendment were to be accepted, would remain here on the same basis as life Peers. They are my noble friend Lord Aberdare, the noble Earl, Lord Airlie, the noble Lord, Lord Ampthill, my noble friends Lord Belstead and Lord Caithness, the noble Lord, Lord Camoys, my noble friends Lord Cranborne, Lord Carrington, Lord Denham, the noble Duke, the Duke of Devonshire, my noble friends Lord Ferrers, Lord Gowrie, Lord Hesketh and Lord Jellicoe, the noble Marquess, Lord Lansdowne, the noble Earl, Lord Perth, the noble Lord, Lord Shepherd, my noble friends Lord Strathclyde and Lord Trefgarne, the noble Viscount, Lord Ullswater, and my noble friend Lord Windlesham.

It may be convenient also to mention that 13 of the 21 are Conservatives, six are Cross-Benchers and one is Labour. Over half of them--12 to be precise--are regular attenders which I define as having attended on at least one-third of the days in the last Session. Of the 12, nine attended on at least 60 per cent of the sitting days and five on more than 80 per cent of the sitting days.

Perhaps I may explain briefly why I believe that the Privy Council is so important in our national life and thus, why those who are members of it are set apart from the rest of us. As Dicey put it, in his famous 1860 essay on the Privy Council:


    "Our Parliament and our Law Courts are but the outgrowth of our Council". It is certainly true that its origins are very ancient. In 1237, Henry III appointed a council of 12, the members of which took an oath to furnish faithful advice and--which, in a way, is more interesting--the king took an oath to follow that. Following Magna Carta some 25 years before, surely that was a crucial stepping stone

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    on the route to the constitutional monarchy which we have today. Those who were not nobles were simply given the title "counsellor" and according to one authority that,


    "gave him greater weight than the proudest baron".

By the time of Edward I, the Privy Council was a permanent body of Royal advisers qualified to render the Crown custodian of the subjects' safety. That is another reflection of the earlier Magna Carta.

Indeed, the jealousy of the Barons of the powers of the council was a recurring theme in that early history. By 1340, there were signs that the appointment of commoners to the council represented the early intrusion of the democratic element into the seats of the mighty. Thereafter, it gradually became to some extent an alternative to the Lords Spiritual and Temporal. In Tudor times its role was formalised. From 1540 onwards it became much more structured, becoming not only the effective Cabinet under the reforms of Thomas Cromwell but also, especially under Henry VIII, as we so often remember in our legislation, an important instrument of government which was, to some extent, an alternative to Parliament.

For the 150 years that followed the Battle of Bosworth, it began to be composed more and more from measures of merit rather than standards of nobility. Thus, there was a separating out of selection by ability rather than by right of birth. It is a process which I contend has continued to this day.

Therefore, if the basic principle of this Government is that legislators should be selected either by the people through elections or by a government on merit, I hope that they will not feel that my amendment violates that principle. I contend it is far less contrary both to the spirit and the letter of the Labour Party manifesto than the Weatherill amendment, to which I understand they have agreed on quite different grounds from those on which I argue today.

Of course, it would be open to the 21 to put themselves forward under the terms of the Weatherill amendment, if that becomes part of the Bill, and some may well do so. Others among them, whose counsel we should value as much as any, would almost certainly not do so.

In conclusion, I contend that at least until a stage two emerges, the House of Lords should retain the 21 as that part of the collection of talent, wisdom and experience in public service for which the Bill already provides. I beg to move.

Lord Monson: From the Government's point of view, it is understandable that they should resist vigorously many of the amendments moved so far. But this amendment, explained so well by the noble Lord, Lord Marlesford, is surely in quite a different category.

The Government have stated on more than one occasion during the past few weeks that they want people to sit in this House on their own merits and not

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on the merits of their forebears. This amendment fulfils the Government's wishes in that respect. So how can they resist it?


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