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House of Lords Bill

8.47 p.m.

Consideration of amendments on Report resumed on Clause 1.

Earl Ferrers moved Amendment No. 7:

Page 1, line 5, leave out ("by virtue of") and insert ("because he holds")

The noble Earl said: My Lords, in moving Amendment No. 7, I shall also speak to Amendments Nos. 42 and 81.

These amendments differ slightly from our proposals in Committee. They seek to leave out the words, "by virtue of", and to insert the words, "because he holds". The Bill as presently drafted states that,

The words that I have suggested are far clearer. I do not know exactly what "by virtue of" means. If a Peer is to be excluded from the House of Lords, I suggest that he or she should be excluded because he or she holds a hereditary peerage. In fact, everyone is here not "by virtue of" a hereditary peerage or "by virtue of" a life peerage; Members are here by virtue of the Writ of Summons.

This goes to the heart of the matter. I respectfully suggest that the Government are wrong. If we are all here, it does not matter whether we are life Peers or hereditary Peers. The reason we are here is that we have received a Writ of Summons. When you receive a Writ of Summons, it summons you to Parliament. Once you have come to Parliament, the Writ is, as it were, a spent bullet and it has gone. You are here in Parliament having obeyed the Writ. Later we shall come to an amendment which I suggest is also correct. Once a person has come to Parliament and obeyed the Writ it cannot then be said that the Writ of Summons applies to some people for the remainder of the Parliament but for others it can be truncated half-way through.

As I believe I suggested to the noble and learned Lord the Lord Chancellor last time, it is rather like buying a railway ticket that permits you to travel from

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London to Edinburgh. If one is thrown off at Peterborough, one will feel that has one has had a pretty raw deal. The fact is that the Writ of Summons brings one to Parliament. All of us are here by virtue of that Writ, not by virtue of a hereditary peerage or life peerage. I do not seek to make life difficult for the Government, but to help them. It is not impossible that they may be challenged on this matter. If they were good enough to change the wording to,

    "because he holds a hereditary peerage", the Bill would be clearer and the Government would be much more in the clear. I believe that those are excellent reasons why the Government should accept the amendment.

I know that the brief of the noble Lord, Lord Williams of Mostyn, who I am certain is to reply, and all noble Lords on the Government Front Bench is to accept no amendment or argument, but the noble Lord, Lord Williams, is a gracious man, a big person and sometimes overrides his brief. I believe that in this case he should override his brief because my amendment makes much more sense. I beg to move.

Lord Brightman: My Lords, I have enormous respect for the noble Earl. However, in my respectful opinion, the wording of the Bill as drawn is as plain as a pikestaff. There is really no profit in debating this matter at any greater length.

Lord Mayhew of Twysden: My Lords, it is with every proper degree of diffidence that I venture a slightly longer opinion than that which has just fallen--I believe that that is the right expression to use in these circumstances--from the noble and learned Lord who sits opposite. I also venture to intervene very diffidently for fear of spoiling the marvellous impression given by my noble friend Lord Ferrers in appealing to the better instincts of the noble Lord, Lord Williams of Mostyn.

I simply did not understand the way in which the noble and learned Lord the Lord Chancellor defended the wording of this clause as a tigress defends her cubs. He appeared to believe that the determination of the Government to hold to their election manifesto would somehow be judged by whether they stuck to this wording. He did not appear to understand that all we suggested was that in our respectful opinion there was a measure of doubt that could be overcome. We had substantial debates on this clause in Committee and tried in vain to make clear, as my noble friend just said, that we sought simply to avoid uncertainty. After all, that is part of the function of this House.

We went to the extent of furnishing the Lord Chancellor with an opinion by Mr Lofthouse, Treasury counsel in peerage matters. He set out an argument that gave powerful weight to the point that the present wording might be successfully challenged because what made one a Member of this House was not the holding of a hereditary peerage but applying for, receiving and returning a Writ of Summons. It is common ground that until one has gone through that procedure one cannot fulfil one's duty to attend, speak and vote in this House. If one cannot fulfil the duties of a Member of the House

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of Lords there must, surely, be a sensible argument, to put it no higher, that one is not a Member of the House of Lords. It may be said that one's membership is inchoate and it is only when one has gone through that procedure that one can fulfil one's duties.

All that we were saying in the amendments proposed then, and all that my noble friend suggests now, is that we should use language that puts the matter beyond doubt. Unfortunately, the noble and learned Lord the Lord Chancellor at the beginning of his reply pointed out that Mr Lofthouse was not a Queen's Counsel. He is not a Queen's Counsel because he is Treasury junior counsel. It may be a small point, but if one becomes a Queen's Counsel one cannot do that job. The opinion needed to be dealt with on its merits. I do not say that it is right. With great respect to the noble and learned Lord who has just spoken, I suggest that there is an argument to the contrary that can be supported by an advocate far more distinguished than myself, which is not a particularly high hurdle to overcome. Therefore, it is desirable to avoid doubt, if it can be avoided. That is exactly what my noble friend puts forward in his amendment.

For my part, I cannot see much difference between "by virtue of" and "because of". I believe that the Government have it well within their power to make absolutely clear that a person shall not be a Member of this House if, being the holder of a hereditary peerage, he has received a Writ of Summons. Of one thing I am sure: this matter will be challenged by a hereditary Peer at some time or other. Although it is always fun to see the Government with egg on their face, it is our function to avoid this happening as a result of uncertain drafting of legislation when that can be avoided.

Lord Strathclyde: My Lords, I have a good deal of sympathy with the thinking behind this amendment, which was moved by my noble friend Lord Ferrers, supported by my noble and learned friend Lord Mayhew. An issue needs to be resolved. The noble and learned Lord, Lord Brightman, may be right in one respect. This may not be the best place to resolve this matter. It may not have escaped the notice of the Government Benches that my noble friend Lord Kingsland has tabled a Motion, on which we shall ask the opinion of the House, as to whether this particular matter should be referred to the Committee for Privileges at the earliest opportunity. After all, the Committee for Privileges is probably the correct forum in which such matters should be decided.

It may well be that we could have amended this Bill in Committee, but at the end of the day it resulted in a legal argument between different sides. I believe that it is better for those legal arguments to be resolved in what is as near as possible a court of law; namely, the Committee for Privileges. I understand that that is one of the purposes of that great committee. Although I very much welcome the opportunity that my noble friend has given us to debate the issue again, I believe that there is a better place in which it can be done; but I entirely

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support his intention. There is a doubt which can be easily clarified, and it should be done at the earliest opportunity.

Lord Williams of Mostyn: My Lords, the noble Earl, Lord Ferrers, invited me to overturn my instructions in the brief, and the noble and learned Lord, Lord Mayhew of Twysden, appealed to what he described as my better instincts. It is notoriously well known that I am not let out unaccompanied to give vent to my better instincts or to overrule the brief. The noble and learned Lord said that it was always fun to see a government with egg on their face. He had many years to savour that experience when he was such a distinguished member of the former government.

What the noble and learned Lord, Lord Brightman, says is both short and correct. If I had ever had the prospect of sitting with him judicially, I would have been able to say that I agreed with everything that had fallen from my noble and learned friend and had nothing to add. There is nothing to add. It is perfectly simple. We have said that the disqualification arises in effect by virtue of a hereditary peerage, and that includes any holder of a peerage by virtue of acceleration and any holder of a hereditary peerage by virtue of the termination of a peerage in abeyance. We needed to find a proposition that would flexibly cover direct and indirect relationships with hereditary peerages.

There is the point about the Writ of Summons. But the Writ of Summons runs only for someone who has an entitlement to it by virtue of an hereditary peerage. Indeed, the Writ is not simply a summons to come and take the Oath. The Writ requires the recipient to attend and treat and give counsel upon the affairs aforesaid. No one can sensibly suggest that turning up, taking the Oath and never returning, would be a proper, faithful response to that summons.

It is perfectly straightforward and clear. No one is to sit here by virtue of an hereditary peerage. As the noble Earl, Lord Ferrers, is about the remind me, the Bill states,

    "by virtue of a hereditary peerage". I think that we sufficiently knocked that argument about rather like a game of table tennis between us.

It is perfectly simple and perfectly plain. I cannot improve or further embroider upon what fell from the noble and learned Lord, Lord Brightman.

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