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Baroness Jay of Paddington: My Lords, I, of course, accept what the noble Viscount, Lord Torrington, said about the assiduity of the noble Lord, Lord Trefgarne, and the noble Earl in bringing forward a large number of interesting issues both in Committee and when the Bill was recommitted. I remember at some late point in the Committee stage personally congratulating them on their ingenuity in raising a particularly complex issue. I hesitate to use the word "arcane" as that has been attacked in the course of this evening's proceedings. The point they sought to raise in Committee, which has been emphasised by some noble Lords who have spoken in this short debate today, was that they genuinely believed (and they continue to be concerned) that there is what was described as a lacuna in the Bill on this question of the ability of this Government or any government in the future being able to confer life peerages on those who have been previously hereditary Members of this House.

Perhaps I may refer to the question about Peers of First Creation and the moves made by my right honourable friend the Prime Minister to seek to invite Members of your Lordships' House who are Peers of First Creation to accept life peerages in this present stage of the deliberations on the Bill. That was done precisely because those people who were asked if they wished to accept the invitation were people who it was judged by my right honourable friend would, in normal circumstances, perhaps have been given life peerages in any case. It seemed to be legitimate that they should therefore be offered this alternative to the pursuit of an election, if that is what they wished to achieve, under the new Clause 2 of the Bill, or to retire from political

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life. The idea was simply to offer them an additional opportunity since they might well, in the first instance, have been offered life peerages rather than hereditary peerages when they were first invited to join your Lordships' House.

The noble Earl made much of the overall point of the Bill and, what he called the disbarring from the House of members of the hereditary peerage. He suggested that that was, as it were, a permanent gate coming down on their membership of the House. The point is that they were only disbarred, to use his expression, from membership of your Lordships' House by virtue of the hereditary peerage. There is nothing in the Bill to suggest that, provided they are qualified in other respects--I will return to the question of disqualification later in my response--they are in any other way prevented from becoming Members of your Lordships' House as life Peers; they are simply and categorically disbarred from membership by virtue of their hereditary peerage.

We have considered the various points made very cogently by noble Lords in our previous debate and we considered this question before the Bill was brought before your Lordships. As I hope I have explained, that is the reason why some Peers of First Creation were offered life peerages at an earlier moment. We seriously consider that the amendment is unnecessary; we seriously assert--we have of course had our own legal and constitutional advice on this matter--that all hereditary Peers will be eligible to receive life peerages. We have consistently envisaged that Members of your Lordships' House who sit now by virtue of their hereditary peerage may indeed become those who are most obviously eligible to become life Peers in some future incarnation. We checked that there were no difficulties raised by this under the Life Peerages Act. It was intended to ensure that the usual disqualifications for membership which apply to life Peers--being an alien, a minor or a bankrupt--continue to apply to life Peers. As the present Bill does not prevent hereditary Peers from being Members of the House--but, I repeat, only being a Member of the House by virtue of a hereditary peerage--there is no disqualification on hereditary Peers which needs to be ousted or, to use the noble Earl's expression, barred.

We have already in the course of the day's proceedings on the amendments of the noble Earl, Lord Ferrers, revisited the question of the significance of the expression "by virtue of". As my noble friend Lord Williams said in responding to the noble Earl, its main attraction is the breadth which it encompasses. In this case there is another significance to it; if you like, a narrowing of the scope. The Bill does not say that no one should be a Member of the House of Lords if he holds a hereditary peerage. That would indeed be a disqualification for membership. But that is not the effect of the Bill.

The Bill is not about disqualification from membership but about barring one of the routes to membership. The route to membership alone of holding a hereditary peerage will of course no longer exist after the Bill comes into force. But everyone still has the same rights as before to seek the remaining routes to

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membership of your Lordships' House. For example, in the same way that after the Bill is passed a hereditary Peer who is also a Bishop in the Church of England will be entitled to take his seat on the Bishops' Bench if he holds one of the qualifying dioceses, so a hereditary Peer who is made a life Peer will be able to rejoin your Lordships. As I have explained before--the noble Lord, Lord Kingsland, seemed to find this an unhelpful expression; to me it seems reasonably clear--they will not pass from being uniquely qualified to being uniquely disqualified.

The noble Lord, Lord Kingsland, also referred to the contribution of the noble and learned Lord, Lord Mayhew, in our earlier debate and he did indeed point out that the Bill recognises at another point the concept of disqualification, and in its proper place indeed it does. Peers are presently disqualified from being Members of the House of Commons. It is an absolute bar. The Bill removes it where the disqualification is by virtue of the hereditary peerage. By virtue of the hereditary peerage, that disqualification from membership of the House of Commons is removed. But if the disqualification were accompanied by the fact that the Peer in question was a minor or an undischarged bankrupt, the Bill would not remove those disqualifications.

I hope that noble Lord will not believe, as someone said in the course of our short debate, that that is playing with words. It does explain matters with some clarity to me, and I am not a lawyer. I think that it does suggest the difference between the disqualification in the appropriate place and the barring of one route to membership of your Lordships' House which does not cut off all other routes.

A Peer who was a hereditary Peer, a bankrupt, an alien or a minor would therefore remain disqualified in relation to the House of Commons, and that is also the effect of the Bill before us read alongside Section 1(4) of the 1958 Act in relation to this House. The disqualifications that apply to membership of the House of Lords also remain. They are consistent with those that remain to disqualify anyone from being a Member of the House of Commons, but they do not include anything arising from this Bill.

I hope your Lordships will feel that that is an understanding that I have attempted to put in the simple language I myself understand. It is slightly, I agree, a question of double negatives, as I said in answer to the previous amendment proposed by the noble Lord, Lord Trefgarne. But I also explained previously that the present amendment appears to override the disqualifications that I have just described, which do properly apply to hereditary Peers becoming life Peers, both now and in the future. It would therefore, to use the expression that I find helpful but the noble Lord, Lord Kingsland, perhaps does not, continue to make hereditary Peers uniquely qualified. A bankrupt hereditary Peer could become a life Peer where a bankrupt commoner could not. The noble Lord's accompanying amendment, Amendment No. 82--the amendment to the Long Title--illustrates that.

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I hope that I have made a little clearer, as I obviously failed to do when we discussed this point in Committee, the difference between disqualification, as the noble Lord, Lord Trefgarne, describes it, and what the effect of the Bill will be. I can only reiterate simply that there is no political intention to prevent hereditary Peers being eligible to become life Peers and no legal bar in this Bill.

The Earl of Northesk: My Lords, before the noble Baroness sits down, perhaps I may clarify one point. I agree with her that there is no absolutist doctrine about disqualification here. However, the disqualification by virtue of a hereditary peerage is nonetheless a disqualification in law. Therefore, the terms of Section 4 of the 1958 Act, under my interpretation, carry force because they include the phrase "disqualified therefore by law". Does she not accept that there is an element of symmetry which needs to be addressed?

Baroness Jay of Paddington: My Lords, it is my legal advice that that is not the case and that the statute, in removing the disqualification for membership, for example, of the House of Commons, except in those instances of being a minor or a bankrupt, is different from that of this Bill, which requires that membership of your Lordships' House should not continue by virtue of a hereditary peerage. But I am advised that that does not override the Life Peerages Act, which enables anyone not disqualified by those other, more limited concepts from becoming a Member of this House. It simply bars one route to membership by virtue of a hereditary peerage, but no others except those limited disqualifications.

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