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Lord Trefgarne moved Amendment No. 12:


After Clause 1, insert the following new clause--

LIFE PEERAGES FOR DISQUALIFIED PEERS

(" . A peerage under the Life Peerages Act 1958 may be conferred on a person notwithstanding that he is disqualified under section 1 from attending, sitting or voting in the House of Lords, and, accordingly, section 1(4) of that Act shall not apply in relation to any such person.")

The noble Lord said: My Lords, at an earlier stage of the Bill, I drew attention to what seemed to me to be a difficulty generated by the Life Peerages Act 1958. I confess to having been unpersuaded by the reply which I received on that occasion from the Government Front Bench.

Section 1(4) of the 1958 Act provides that a life peerage--and I parenthesise slightly--shall not confer any right to attend or sit and vote in this House on any person who is disqualified therefrom by law. It seems to me almost self-evident that those hereditary Peers who are precluded by law from sitting and voting in your Lordships' House by virtue of the provisions of this Bill would be disqualified from receiving a life peerage, if subsequently they were thought appropriate for that honour.

I must confess that I am slightly reinforced in that view by the knowledge, or so I understand, that those hereditary Peers of first creation--nine in number--who have quite publicly been offered life peerages, have been assured that their new life peerages will be conferred before this Bill becomes law. It seems that an alarm bell must have been ringing in government corridors somewhere to the effect that the difficulty to which I have referred is indeed real. Perhaps that is not so. Perhaps I am mistaken. I look forward to being told whether that is the case.

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It seems self-evident to me, as a simple, non-legal person, that the provisions of Section 1(4) of the 1958 Act generate a difficulty with regard to the conferring of life peerages upon dispossessed hereditary Peers, as we shall be as and when this Bill becomes law.

I hope that the Government have given some thought to this matter and can produce a definitive rebuttal to the difficulty which I have perceived. If they are able to do that, I shall, quite happily, withdraw the amendment. I beg to move.

10.45 p.m.

The Earl of Northesk: My Lords, as my name is attached to this amendment, perhaps I may also add my little potted interpretation. I ask myself a simple question: what actually happens when and if the Bill is enacted in its current form? We have to take it on advice from the Government Front Bench that all members of the hereditary peerage, excepting those who are successful in the ballot arising from Clause 2, will be barred; in other words, they will be disqualified in law from being Members of this House. That is the purpose of the Bill. That is its intent. What therefore happens, say, five years after the Bill has been enacted? It may perhaps be decided, even by the current Prime Minister, that a member of the hereditary peerage should be made a life Peer on merit. That is all well and good. However, because of Section 4 of the Life Peerages Act 1958, that singular honour, granted, I repeat, on merit, could not and would not carry with it an entitlement to a Writ of Summons to be a Member of this House. The legal barrier--the barrier in statute--of the Bill would take precedence.

In response to this issue in Committee, the noble Baroness the Lord Privy Seal suggested that there is nothing in the Bill which would remove the right of hereditary Peers to be Members of the House of Lords. I simply submit that that is absurd. That is precisely what the Bill does seek to achieve. Indeed, my interpretation is that that is the Government's intent, as has been stated on numerous occasions and in many different ways by all Members of the Government Front Bench.

In Committee, the noble Baroness indulged in some linguistic gymnastics to justify the Government's position, but no amount of semantics can disguise the simple fact that, as drafted, the Bill does seek to disqualify members of the hereditary peerage from being Members of this House. As such, it falls within the terms of Section 4 of the 1958 Act.

I dislike harping on about this point, but given the fact that the hereditary peerage will be barred from ever again being permitted to receive a Writ of Summons to perform the task of legislative scrutiny here, the Government really ought to think very carefully as to whether the Bill on this issue is properly and adequately consistent with their own Human Rights Act. My own judgment--and I freely admit that I am not a lawyer--is that, on strict interpretation, it is not.

I return to my familiar theme. The Bill, on matters of substantive detail, is not the creature of exquisite simplicity that the Government claim. The particular

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issue that the amendment seeks to address is a prime example of the lack of clarity and uncertainty engendered by the Government's approach to the Bill. Thus the purpose of our amendment is to plug what we perceive to be a specific gap in that approach. I can but hope that the noble Lord, or whoever is due to reply on the Government Front Bench, will, as my noble friend Lord Trefgarne asked, be in a position to give us a reasoned and a reasonable explanation as to why our interpretation of the situation is flawed. In the absence of that, and with the agreement of my noble friend, I hope that the rest of the House might find favour with this small attempt to deliver that quality of fairness to which members of the Government say they attach so much importance.

Viscount Torrington: My Lords, I know that I have been very impressed, and I believe that many other noble Lords on these Benches have been, with the assiduity with which my noble friends Lord Trefgarne and Lord Northesk have dug around in the nooks and crannies of this Bill, looking under all the stones, trying to find the inconsistencies and the flaws and suggesting improvements to them. Some of those flaws undoubtedly exist. By contrast, the Government seem to be saying, "Our Bill is perfect; it is very clear. It doesn't require any changes". Indeed, the noble and learned Lord the Lord Chancellor has said that on numerous occasions. I think that some people call it "Pepper and Harting" the Bill; I tend to call it "Heckler and Koching" the Bill, or "Webley and Scotting" it.

It is just possible in this particular case that my noble friends have stumbled on an important what I think lawyers call a "lacuna" in the Bill--I am not a lawyer but I believe that is the word--which may need repair. We seem to be left with the ridiculous situation that hereditary Peers, who may be perceived by the outside world as some kind of top dogs, could find themselves at the bottom of the heap. They could be the only people in this country who are not allowed to be Members of your Lordships' House. That would be an extraordinary turn of fate and I really think it should be attended to.

Lord Kingsland: My Lords, the purpose of this amendment, as I understand it, is to clarify the ability of the Government to confer life peerages on disqualified Peers--something that after the commencement of the Act we are led to believe that they intend to do. The Government seem to believe that Clause 1 of the House of Lords Bill will have the same effect as a disclaimer and allow a former hereditary Peer to sit as a life Peer. My noble friend Lord Trefgarne is advised by contrast--and by Mr Lofthouse--that this may not be the case.

Section 1(4) of the Life Peerages Act 1958 states:


    "Nothing in this section shall enable any person to receive a writ of summons to attend the House of Lords, or to sit and vote in that House, at any time when disqualified therefor by law". My noble friend Lord Trefgarne has raised an important point; namely, whether or not Peers excluded by the Act could legally be brought back. It is essential that this point be clarified before the Bill becomes law.

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As was pointed out by my noble and learned friend Lord Mayhew of Twysden in Committee, the concept of disqualification is known to the Bill. It is cited in Clause 3 and used as the description of the effect of the Bill. The matter is now complicated by the inclusion of the Weatherill amendment. The noble Baroness the Leader of the House said in her reply that the Bill did not uniquely disqualify hereditary Peers; rather it ended a situation where they were uniquely qualified.

But that was before Weatherill. Now some Peers will be elected and qualified, other Peers will not be elected and will be disqualified. Will they be able to receive life peerages in the light of the 1958 Act? In her reply in Committee the noble Baroness also said that the Government had offered life peerages to some Peers. She cited my noble friend Lord Aldington. But with great respect to the noble Baroness the Leader of the House, that is not the point. The point is not whether the Government can give life peerages now; it is whether they will be able to do so after the Bill becomes law.

At an earlier stage we understand that some Peers on the Labour side were advised that it might need a separate Act of Parliament to confer life peerages on hereditary Peers after the Act was passed. I think we are entitled to ask the Government what is the position. The Government have a duty to make this clear beyond any doubt before the Bill passes. But so far, in my submission, the Government have not done so.


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