Select Committee on Privileges First Report


APPENDIX 4(9)

Opinion by junior counsel for the Lord Mayhew of Twysden

  1.  I am asked to provide an Opinion on whether the House of Lords Bill is likely to be effective to exclude hereditary peers as a whole from the House of Lords.

  2.  Any consideration of this must concentrate on two parts of the Bill: clause 1 and clause 4(2).

  Clause 1 reads:

    "No-one shall be a member of the House of Lords by virtue of a hereditary peerage."

  Clause 4 deals with commencement and transitional provision. For present purposes, clause 4(1) provides that the Act shall come into force at the end of the Session of Parliament in which it is passed; then comes clause 4(2):

    "Accordingly, any writ of summons issued for the present Parliament in right of a hereditary peerage shall not have effect after that Session."

  Both clauses raise problems which can be understood only by a careful consideration of peerage law.

CLAUSE 1

  3.  Clause 1 does not change the law. This is because nobody is a "member of the House of Lords" by virtue of an hereditary peerage. Membership of the House is conferred by obedience to a writ of summons. As we shall see, this is no mere technicality.

  4.  Certain people, including hereditary peers who fulfil certain requirements, are entitled to claim a writ. The requirements are: holding a peerage of England, Scotland, Great Britain, or the United Kingdom*, full age (21), not an alien, not bankrupt, not disqualified for treason, and having proved a right to a writ (sometimes a lengthy procedure).

  [*Of course, United Kingdom peerages include what are usually called English, Great Britain, Scots, or Irish peerages: this is by virtue of the Act of Union, just as Scots peerages are peerages of Great Britain; but I have used the less accurate and less lengthy, but comprehensible, common terminology here.]

  5.  Thus hereditary peers are a category of persons some of whom are entitled to receive a writ of summons.

  6.  Once a person, whether a lord spiritual, life peer, hereditary peer, or recipient of a writ of acceleration, has received and obeyed a writ by coming to Parliament, and has taken the oath or affirmed, then he is "a member of the House of Lords" (an inelegant, newish, and inaccurate term) and his right to sit cannot be challenged. The term "peer", in its usage within the House, is instructive: demonstrating the equality of those who sit in response to a writ: the motive for the issue of the writ may differ, their degrees of dignity may differ, but after answering the writ they are equals in Parliament.

  7.  This is not just semantics. If an hereditary peer who sits be asked, "By what right do you sit here?" the correct answer would be, "Because I received a Royal Command contained in a writ of summons, and I came in obedience." The fact that the reason the Sovereign caused the writ to issue was because he was already a peer who was entitled to receive a writ is nothing to the point: his status conferred the right to call for a writ, but that very point, the right to a writ, demonstrates that it is the writ, not the peerage, which gives the right to come and thus to "be a member of the House of Lords." See Halsbury's Laws of England (4th ed) Vol 34 (Reissue 1997), para 535.

  8.  Test the aptness of the "by virtue" wording in this way: any subject may, if qualified, stand for and, if pleasing to the electors, be elected to the House of Commons; citizenship is the basic qualification. However, if an Act said, "No person shall be a member of the House of Commons by virtue of British citizenship", would that exclude all British citizens from the House of Commons? Plainly not. It would simply make clear that one cannot come to the Commons simply by saying that one is a British citizen. Something else is required, including full age, sanity, and so forth; plus election by the voters, being returned by the Returning Officer, and taking the oath or affirmation. This clause, the operative clause as the Government may think, does no more for hereditary peers.

  9.  The writ is the crucial element. It is so powerful that, if a person not already a peer (or elder son of a peer with two or more peerages giving a right to a writ) receive and sit in response to a writ, he becomes a peer ipso facto, even, according to some, although I have strong doubts, if the writ was issued in error. (See The Hastings Peerage (1840) 8 C1 & F 144, The Barony of Grey of Codnor (1989), and The Barony of Strange (1737) (discussed in Cruise on Dignities (2nd ed), p 317).) The interposition of the writ between the possession of the peerage and the right to sit is thus no mere technicality.

  10.  If a writ were withheld (and it has happened) a peer could not sit. All he could do would be to do as the Earl of Bristol did when Charles I refused him a writ: petition the House of Lords for them to ask the King to send a writ. He could not just sit and "be a member of the House of Lords by virtue of a hereditary peerage". This case amply demonstrates the point. It is at (1626) 3 Lords' Journals 537, 563.

  11.  I doubt if there really is such a thing as being a "member of the House of Lords": there is a right (or obligation) to sit and vote.

  12.  The only exception to the means of a personal writ to secure attendance in the House of Lords was in respect of the Scots Representative Peerage, where careful legislative provision was made for their unique rights.

CLAUSE 4(2)

  13.  This is a curious provision. The Bill waits until the commencement clause to approach the real issue. One begins by noting that the "accordingly" is something of a non sequitur: nothing that has preceded it justifies the word.

  14.  To any writ there must be a "return" (hence "returning officers" for the Commons). The return to a peer's writ is his coming in obedience and sitting. A writ has "effect" once a peer has sat; the writ is handed in (and a line put across it I think). The writ is the order to come, the ticket perhaps; it states the date of the Parliament, at least in writs issued for a new Parliament. Once a peer is in, he has made the "return" to the writ, and is entitled and obliged to stay. Remember that the writ has its origins in days when lengthy and virtually continuous parliaments were unknown. One came, presented the writ, sat, and went home, until the Sovereign next had need of advice or money or whatever. The same is true today: the writ is spent once it has been returned. It is interesting that Halsbury's Laws in the volume on Parliament has a section headed "Issue and Return of Writs": Vol 34, para 701.

  15.  Compare a member of the Commons. He is admitted by virtue of having been elected in obedience to the writ, but once he has taken the oath, the "effect" of the writ for his election is surely spent.

  16.  In Cruise on Dignities (2nd ed), p 318, there is cited the printed case for the petitioner in the Strange case in 1737:

    "When the person summoned sat, the writ of summons had its full effect; and could not afterwards be avoided, or made not to have been—"

  Cruise says that the House of Lords "appears to have acquiesced in this reasoning." (I think, incidentally, that the future Lord Mansfield was one of the counsel who signed the petitioner's Case.)

  17.  Lord Coke also has some interesting material in his 12th Report, p 70, treating of baronies by writ (where a person who is not already a lord of parliament is summoned and sits, and thereby becomes an hereditary baron). He speaks thus on the case of Edmund Nevil:

    "And it was resolved by the Lord Chancellor, the two Chief Justices, Chief Baron, and divers other justices there present, that the direction of delivery of the writ did not make him a baron or a noble, until he did come to the Parliament, and there sit, according to the commandment of the writ; for until that, the writ did not take its effect . . . [My emphasis.]

  Now, although the "effect" there is the creation, that passage provides some support for my clause 4(2) "effect" point. After sitting the writ's effect ceases: it is no longer needed. The "effect" is to compel attendance and grant admission to take the oaths. Coke also speaks of the possibility until sitting of a "writ of supersedeas" withdrawing the writ of summons. Plainly then supersedeas would not be possible after the writ has had its effect by sitting.

  18.  The combination of the problems with clause 1 and clause 4(2) is that the Bill might be construed as excluding only those hereditary peers who had not spent the effect of the writ by taking their seats by the end of the Session in which the Bill is passed. The argument is: (a) clause 1 must mean something, despite all the indications to the contrary; (b) clause 4(2) cannot by its wording operate to eject current "members of the House of Lords": clear and different words would have been necessary (as to the need for clear words, see paragraph 21 below); (c) the only writs which could still have "effect" are those whose return is still outstanding; the effect is spent for those who have responded to theirs; (d) therefore, clauses 1 and 4(2) exclude hereditary peers whose writ has not been acted on by the end of the Session; (e) those peers who have taken their seats in time remain until the end of the Parliament; (f) for the next Parliament, all hereditary peers will be entitled to fresh writs, which will not be caught by the present clause 4(2); except that hereditary peeresses in their own right and Scots peers will be excluded by virtue of the repeals of parts of the Peerage Act 1963. Yet even the modest effect thus achieved by the Bill could be only by the odd means of making a commencement sub-clause the operative part of the Bill.

FURTHER SOURCES

  19.  A vast source of helpful material on the "by virtue of" and "effect" points is in MacQueen's Report of the Debates on Life Peerage (the Wensleydale peerage case). A copy is in the House of Lords Library.

  Lord Cranworth, Lord Chancellor, at p74, said:

    "That which gives every noble Lord his right to sit here is not his Patent of Nobility, but the Writ of Summons which he is entitled to, in consequence of that Patent."

  20.  The crucial cases on the construction of Acts relating to the right to sit and vote in the House of Lords are Viscountess Rhondda's Claim [1922] 2 AC 339 and The Barony of Farnham (1995). In Rhondda, the speech of Viscount Birkenhead, Lord Chancellor, is very helpful. For instance:

    "What then becomes of the suggestion that the right to sit is not a right granted by letters patent? Literally it is true. The letters patent require the supplement of a writ. But they give a right to demand that writ, and impose an obligation to receive it and to act upon it." [p 359].

  Note that there is nothing in this Bill to reflect the obligation of sitting.

  21.  Later Viscount Birkenhead said:

    "The first point to note is the meticulous care with which, whenever the Legislature has dealt with the right or duty of attending in this House or voting for election to the other, it has expressed its will upon the matter. So far as this House is concerned, it is only necessary to refer to the elaborate provisions relating to the rights and duties of Scottish peers upon the union of England and Scotland in 6 Anne, c.11, and those relating to the rights and duties of Irish peers upon the union of Great Britain and Ireland contained in the Act of Union of 1800. It is worth noting also that, when power was given to create life peers for the purpose of hearing appeals, their right to a writ of summons to attend and to sit and vote in the House of Lords was dealt with by express words, both in s.6 of the Appellate Jurisdiction Act 1876 (39 & 40 Vict c 59), and in s 2 of the Appellate Jurisdiction Act 1887 (50 & 51 Vict c 70)" [p 365].

  22.  Thus it was held that an Act (the Sex Disqualification (Removal) Act 1919), which provided that a person should not be disqualified by sex or marriage from the exercise of any public function or from being appointed to or holding any civil or judicial office or post, did not enable a peeress in her own right to sit and vote in the House of Lords. The Committee for Privileges first held in Lady Rhondda's favour, the Attorney General effectively conceding the point, but the House sent the matter back, and a larger Committee held against her. The problems encountered in Lady Rhondda's case should be a cautionary tale for any Government seeking to amend peerage law.

  23.  In Farnham, very complicated questions arose relating to the Act of Union with Ireland and the 1921 Treaty and subsequent legislation. Putting it simply, the Irish peers were entitled after the Union to elect 28 representative peers; when any died there was a by-election. After 1922 no further elections were held, but those already elected continued to be summoned until they died. In 1966, in The Earl of Antrim's Petition [1967] 1 AC 691, the House of Lords held that no fresh elections could be held. The principal reason was that the peers were to be elected to sit and vote "on the part of Ireland", and that, since 1922, there had been no political entity of Ireland on the part of which they could sit. Yet some had continued to be summoned and to sit. One was Lord Farnham's grandfather. Thus, Lord Farnham said: if there was no extant function for his grandfather, his grandfather must have been sitting otherwise than as a representative peer, and that, by the doctrine of barony by writ, he had been created an hereditary baron of the United Kingdom. However, he failed. Notwithstanding the end of the reason for their presence in the House, it was held that they had been elected for life under the Act of Union, and their continued presence was referable to their election, not to a new creation by mistaken summons. One sees from that that so strong and clear must be the language to remove a peer from Parliament, that even peers who were elected to represent something were not excluded upon the extinguishment of that something.

  24.  It is true that there are passages in Re Bristol South East Parliamentary Election [1964] 2 QB 257, [1961] 3 All ER 354, (decision of Election Court on Mr Benn's election after inheriting the viscountcy of Stansgate) that go the other way on the Writ point; but (a) they were unnecessary to the decision, which was that it is the status of peer that disqualifies, and thus obiter dicta; (b) they go against House of Lords authority; (c) they are unconvincing. The judges' understanding of peerage law appears weak: for instance, at [1961] 3 All ER 365, they appear unable to understand the remark of perhaps the greatest peerage expert (Lord Redesdale) in the most important work on peerage law (Third Report on the Dignity of a Peer, 1822; reprints 1826 and 1829) about peers who have not "thought fit to qualify themselves to sit and vote as lords of parliament". The answer that would occur to anyone acquainted with the subject is that it must be a reference to Roman Catholic peers, for whom coming to Parliament would have meant taking a sinful oath, and for whom claiming a peerage would have been fraught with danger of drawing attention to themselves in time of persecution: cf. Vaux Peerage Case (1837) 5 Cl & Fin 526 at p 564, and Camoys Peerage Case (1839) 6 Cl & Fin 789 at p 819 to 821. Yet that lack of understanding coloured the judges' approach.

CONCLUSION

  25.  On a strict construction of the Bill, it does not achieve the Government's objectives. The Government may find, if it can secure the passage of this Bill, that it was not worth the trouble. Putting it at its lowest, once it is in force they risk facing petitions for admission and later for writs of summons, possibly from many peers, and consequent uncertainty. The Lord Chancellor's position may be particularly unenviable, as he will have to determine whether his duty is to issue writs to particular hereditary peers. At the very least, where there is doubt, then the Bill is risky for the Government. The fact that they think they know what they are trying to do does not absolve them from the obligation of expressing it properly; if they do not, and if ordinary canons of construction point against their construction, they might not even be saved by asking a Committee for Privileges to look at Hansard under the recent cases such as Pepper v Hart [1993] AC 593. They might be told, "We know what you wanted. The question is whether you have achieved it."

  26.  This is a difficult and complex matter. Perhaps I may put it in this way: if the Government asks if it can be assured that this Bill will work, the answer must be that it cannot be so assured.

  27.  It may be that a Bill could be drafted so as to be sure to achieve the Government's objectives. It would need to be wholly different in concept from this Bill. The reality may be that, without a total reform of the House of Lords, the exclusion of any element is fraught with difficulty.

  28.  I should end by saying that no criticism should be made of the draftsman: his instructions must have made his task impossible.

John Lofthouse

2, King's Bench Walk, Temple, London EC4

14 April 1999


 
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