Examination of Witnesses|
THURSDAY 14 OCTOBER 1999
CHAIRMAN: Yes Mr Beloff?
MR BELOFF: If it pleases the Committee, in this
matter I appear with my learned friend, Mr Lofthouse. Mr Lofthouse
is the junior counsel for the Treasury, in peerage matters and
he appears as junior counsel for Lord Mayhew of Twysden, in matters
before this Committee, under the consent of Mr Attorney Morris.
The present Attorney-General and Mr Philip Sales are here for
Her Majesty's Government.
The question of the future of your Lordships'
House is a matter of high constitutional importance, as it is
of deep political controversy. The motion, which was referred
to this Committee in the question presently before it, no doubt
reflected both those factors. The question itself, however, in
our respectful submission, raises a point of pure law. That is
to say, whether the House of Lords Bill, as amended on Report,
would, if enacted, affect the right of those hereditary peers,
who have answered to their writ of summons before the Bill receives
Royal Assent, to continue to sit and vote throughout the Parliament
in which the Bill is enacted. The Committee is, of course, in
our submission, called upon to decide that question without any
consideration of, or indeed speculation about, the merits or wisdom
of the proposed legislation, still less the political consequences
after a decision one way or another.
My Lords, as your Lordships will have observed
from the case submitted on behalf of the Government, the Government's
position appears to be that the Committee should refrain, at this
juncture, from considering the question at all. I shall need,
therefore, subject to any direction I may be given, to address
that issue at the outset. I would merely observe this point, that
in this and as in other aspects of their written case, the Government
may not appear to be sufficiently sensitive to the distinction
between themselves and the legislature, of which this House is
a part, either in terms of wish or intent or indeed of powers.
I make it clear, at the outset, that nothing in the case I advance
on behalf of Lord Mayhew, the mover of the motion, which has resulted
in the reference, is meant in any way to deny or to challenge
the rights of the legislature, or to enact, subject only to paramount
Community or delegated devolution law, neither of which are here
in play, what legislation it sees fits. With that proviso the
sovereignty of the legislature is in no way in issue.
CHAIRMAN: You make that very clear in your case.
You may assume that we have all read the written cases.
MR BELOFF: I am very much obliged to your Lordships
for doing so and I shall make that assumption.
CHAIRMAN: You may take it as a fact that we
have already read the cases.
MR BELOFF: I did not intend using the noun "assumption"
to give any contrary indication.
My Lord, I do not suggest (it would be quite
unrealistic to do so) that the policy of the present Government,
as is notorious, is other than to deny to the hereditary peerage
the right to participate in the affairs of the House, subject
only to the concession in the so-called Weatherill amendment.
The reason why Lord Mayhew moved this motionand I respectfully
submit that the reason why the House accepted itis because
of two factors: the first being a perceived potential disharmony
between the apparent wishes of the Government and the machinery
by which that wish was to be achieved in the Bill in its present
form. Secondly, and consequently, a real doubt as to what would
be the effect in law if the Bill remained in that form until enacted,
according to the ordinary constitutional procedures, culminating
in the Royal Assent.
His doubts, your Lordships may recollect, were
shared by an eminent authority on peerage law in this House, Lord
Jauncey of Tullichettle. May I just read to my Lords the brief
passage when he spoke in the debate in the House of Lords Bill
on 27 April 1999. It is in the fourth bundle of authorities at
tab 72, at column 160. There are two debates in that column. It
is the first of the two. Your Lordships will see that Lord Jauncey
said this: "Perhaps I may remind the Committee of the words
of Lord Cranworth, the Chancellor in the Wensleydale peerage
case in the last century. `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.'
I agree with the noble and learned lord, Lord Mayhew, that there
is at the very least doubt as to whether clause 4(2) is effective
in as much as the Writ may or may not still be alive after it
has been presented and the holder of it has sat in Parliament".
So, my Lords, what the effect in law would be if the Bill were
replicated word for word in the Act in its present form is the
matter which divides Lord Mayhew on the one hand and the Government
on the other and involves, as your Lordships will have observed
from the written cases, a consideration of materials from indigenous
writs of medieval ancestry through to a 20th century international
Treaty, the European Convention on Human Rights.
I have sought to summarise the propositions
that I will seek to develop before the Committee into eight. If
it is convenient, and only if it is convenient, it may be that
the Committee would wish to have those in writing handed up. (same
CHAIRMAN: It would save a great deal of time
and writing, thank you. We would be very grateful.
MR BELOFF: First, a proposition which, of course,
engages the Government's plea that the Committee should not consider
the matter, is that it is just, convenient, appropriate and indeed
necessary that the Committee should consider here and now the
question referred to it.
Secondly, that the question itself depends upon
an analysis of the Bill in its present incarnation with a view
to determining whether it indeed achieves what is said to be the
Thirdly, given that the issues raised bear on
the composition of the House and the right to participate in its
activities, the principle of legality requires clear words significantly
to affect such composition or to remove such rights from those
who presently enjoy them.
Fourthly, it is inherent in the drafting of
the Bill, as is indeed the case, that in order to remove rights
to sit and vote from hereditary peers, that it is necessary in
some wise to make provision by reference to the writ of summons
addressed to such peers by the Monarch.
Fifthly, the writ of summons is a command to
attend Parliament. Once the writ has been returned and the peer
taken his or her seat its effect is spent. Your Lordships will
have detected from the printed cases that this is a crucial submission,
as indeed is the sixth to which I will now turn.
Sixthly, The Bill, by focusing upon the issue
of the Writ and denying such issue any further efficacy has only
denied to those peers who have not made a return to the writ,
the right to make such a return and in consequence to sit and
vote in the House hereafter. By contrast, the Bill does not seek
to abrogate the rights of those who have made return to the writ
and whose right to sit and vote thereafter results from that return
and not from the issue of the writ itself, and would accordingly
continue for this Parliament. I add, parenthetically, for this
Parliament only, because for any fresh Parliament a fresh writ
of summons would need to be issued.
Seventh, that such a limiting interpretation
is reinforced by reference to the European Convention on Human
Rights, which guarantees both the right to vote, which on the
Government's interpretation of the Bill would be removed from
all, save so-called Weatherill peers, and the right to stand for
election to the legislature which they did not enjoy in respect
of the present Parliament.
Eighth and lastly, that convention can be prayed
in aid in the event of ambiguity in domestic instruments, a
fortiori, having regard to the fact that it will, in material
part, shortly be incorporated into domestic law.
I turn, if I may, to address the issue raised
in paragraphs 7 to 12 of the Government's case which gives, of
course, a threshold issue in which they debate the role of this
Committee. If we may summarise, it appears to us that the proposal
of the Governmentit is at page 22 of the bound volume,
page 2 of the Government's caseit appears to us that the
proposal of the Government, that the Committee should abstain
from considering the issue, referred to it by the House, depends
upon the fact that the Bill is still a Bill, not the law of the
land, and is a challenge founded on prematurity. I understand
that the learned Attorney-General wishes to intervene.
THE ATTORNEY-GENERAL: My Lords, I simply want
to be helpful, if I may. If the question had been put to me as
to whether I wished indeed to submit, that this Committee should
vacate itself on the basis of the first ground, it is simply this.
We maintain our position. We should invite the Committee in due
time, if it thought appropriate, to deprecate such a proceeding
for the future. I am content to deal with the substance. I hope
that is of assistance.
CHAIRMAN: That is very helpful. We will go on
with the substance, although there may be a question for the future.
MR BELOFF: It is not entirely clear to me, but
no doubt it will be clarified as to whether your Lordships would
expect me to give any assistance, or such assistance as I might
seek to give them in relation to the guidance that the Attorney-General
CHAIRMAN: The Attorney-General has made it clear
that he is not going to advise us now at this stage to sit on
the question. He may invite us to reule that subsequent to this
matter, that this should not happen again.
MR BELOFF: Yes, it is in relation to that second
part in which your Lordship might or might notand I suspect
the answer is you would not wish to hear me but
CHAIRMAN: We will listen to the way he puts
it, when we get into terms of general guidance. Otherwise, you
may be seeking to guide us in totally different matters. For these
reasons I think we had better hear him first.
MR BELOFF: I think that is right. I just wanted
that guidance from your Lordships.
May I then take your Lordships at once to the
text of the Bill in its present incarnation, with a view simply
to reminding your Lordships of the material provisions and clauses
without, at this juncture, venturing any detailed analysis. It
is to be found in its form, as amended on Report, at page 55 of
the bound volume. 1 July of this year. Your Lordships will see
the proposed long title to the Bill: "To restrict membership
of the House by virtue of a hereditary peerage; to make related
provision about disqualifications for voting at elections to,
and for membership of, the House of Commons." Then there
is a reference to an Appointments Commission for connected purposes.
Then the familiar introductory words, then clause 1: "No-one
shall be a member of the House of Lords by virtue of a hereditary
peerage." I merely observe, at this juncture, that it is
the view of those responsible for the legislation that this clause
by itself is not sufficient to achieve the Government's objectives,
which is why there are further clauses that bear on the issue
at a subsequent stage. Of course, I will return to that in due
Clause 2 deals with what one may call the Weatherill
exception. (1) "Section 1 shall not apply in relation to
any one excepted from it by or in accordance with Standing Orders
of the House. (2) At any one time no more than 90 people shall
be excepted from section 1: but anyone excepted as holder of the
office of Earl Marshall, or as performing the office of Lord Great
Chamberlain, shall not count towards that limit. (3) Once excepted
from section 1, a person shall continue to be so throughout his
life (until an Act of Parliament provides to the contrary). (4)
A person may be excepted from section 1 by or in accordance with
Standing Orders made in anticipation of the enactment or commencement
of this section. (5) Any question whether a person is excepted
from section 1 shall be decided by the Clerk of the Parliaments,
whose certificate shall be conclusive." I do not understand
that clause 3 has any bearing on the matter, nor does the Government's
case so suggest.
Clause 4 at page 57. Described by the marginal note:
"Removal of disqualifications in relation to the House of
Commons: The holder of a hereditary peerage shall not be disqualified
by virtue of that peerage for: (a) voting at elections to the
House of Commons, or (b) being, or being elected, as a member
of that House. (2) Subsection (1) shall not apply in relation
to anyone excepted from section 1 by virtue of section 2."
In other words, Weatherill peers, if I may describe them in that
way, without offence, will not be able to enjoy dual membership
of both Houses of the legislature.
Then in 5, the voting rights of life peers:
"Extension of duration of Parliament": again I do not
understand anything to turn on that. At 6 there is a familiar
formula for providing for amendments and appeals in consequence
of the primary legislation.
7(1) and (2) and indeed (3) and (4) are important.
7(1) deals with the question of the timing of the giving effect
to the policies set out in clause 1. "Sections 1 to 6, including
schedules 1 or 2, shall come into force at the end of the session
of Parliament in which this Act is passed". Subsection (2)
deals with the machinery, as we submit, for the attainment of
the overall objective. "Accordingly, any writ of summons
issued for the present Parliament, in right of a hereditary peerage,
shall not have effect after that session, unless it has been issued
to a person who by the end of the session is excepted from section
1 by virtue of section 2"another proviso in favour
of the Weatherill peers.
Thus your Lordships will have already gathered
that the debate pivotsif it pivots on a single word between
Lord Mayhew and the Governmenton the use of the word "issue".
The significance to be attached to that arises in the context
of established peerage law. Then (subsection 3), which is an ancillary
to clause 4, the Secretary of State may by order make such transitional
provisions about the entitlement of holders of hereditary peerages
to vote at elections to the House of Commons or the Parliament
as it considers appropriate. I merely draw your Lordships' attention
to the fact that that bears on the right to vote at elections
and does not bear upon qualify or, in any other way, affect the
right to be elected a member of the House pursuant to the removal
of disqualifications in clause 4.
Then (subsection 4), which is a matter of machinery.
"An order under this section may modify the effect of any
enactment or any provision made under any enactment, which shall
be made by statutory instrument, which shall be subject to annulment
in pursuance of a resolution of either House or Parliament."
Your Lordships will see that in order to avoid what might be a
debate about those experiencing those arcane areas of peerage
law, there is a definition of hereditary peerage, which makes
it clear that it includes the Principality of Wales and the Earldom
Before I develop any further submissions, may
I set them in context in this way and draw the Committee's attention
to what I hope is a properly neutral and objective fashion to
what is at stake. I do so not for forensic or rhetorical purposes
but to establish the basis for further submission. As suggested
to your Lordships, there are certain principles of construction
of statute (or proposed statute) that bear upon the way in which
the Committee may resolve the issue before it.
Firstly, it is common ground that the subject
matter of the Bill is the composition of this House, one of the
two Houses of Parliament. Secondly, that from the end of the present
session a grouphereditary peers which are, of course, historically
the senior element of the Parliamentwill no longer have
the right to sit and vote in this House. It is, of course, the
dimensions of that group which is an issue between Lord Mayhew
and Government. Thirdly, that this is certainly again common ground,
as I understand the matter, that the members of the group were,
because of their status as peers, ineligible to vote at the last
General Election or indeed in any Parliamentary election since
We submit that it is recognised that the quid
pro quo for the disenfranchisement of the peerage was indeed
their ability to participate in the affairs of this House. The
indirect participation in the democratic process, which most citizens
of this country enjoy by means of the right to vote in elections,
a particular right of which peers were deprived, was balanced
out, by the fact that they enjoyed a direct participation via
the right to vote in this House.
LORD HOPE OF CRAIGHEAD: May I ask you, so as
to clarify my mind. Is there any issue raised about the effect
of clause 4, to which you referred? Is there any problem about
construing clause 4 in its application to all hereditary peers?
MR BELOFF: There is no problem in relation to
the rights to be elected members of the House of Commons. It would
appear, absent any transitional provisions, that this right will
be enjoyed in relation to the particular group as and when the
Bill comes into effect on Royal Assent. There is or may be a dispute
as to the impact of section 7, and subsection (3) of clause 4,
which we say appears, on its face, to give to the executive, the
Secretary of State, a discretion to determine in what circumstances
the right to vote at elections to the House of Commons may be
accorded to those peers who are deprived of the right, to participate
in the affairs of that House.
LORD HOPE OF CRAIGHEAD: Leaving that point aside,
as far as the right to be elected as a member of the House of
Commons is concerned, you accept, do you, that clause 4 is universal
in its effect and applies to all hereditary peers?
MR BELOFF: That must be so, my Lord.
CHAIRMAN: Only if the Bill takes effect. It
cannot possibly be intended to take effect immediately.
MR BELOFF: No, my Lord, no. The notion that
there is this balance, as it were, struck in our constitution,
for peers deprived of the right to vote, in elections of the House
of Commons on the one hand, but able to participate in the affairs
of the upper House on the other, is reflected amongst other places
in the argument that was advanced in the well-known case of Viscountess
Rhondda in the submissions of the Attorney-General, Sir Edward
If your Lordships look in the first volume of
authorities at tab 38, where this Committee's determination of
Viscountess Rhondda's claim is set out, this is 1922, Appeal Cases
339. It is a case that we shall need to return to at a subsequent
stage. I merely draw your Lordships' attention at this time to
the particular point made by the Attorney-General, Sir Edward
Pollock, at 346. At the foot of the page, your Lordship will see
these words: "In construing your Lordships will recollect
that the issue here is that Viscountess Rhondda was entitled,
by reason of section 1 of the Sex Disqualification Removal Act
of 1919, to receive a writ of summons to Parliament which pivoted
on whether or not a peer or peeress was exercising a public function
within the meaning of that legislation." But in the course
of that the Attorney-General, who appeared for the Crown, said
this at the foot of the page, 346: "In construing an Act
of Parliament it is legitimate to examine the state of the law
by the representation when the Act was passed. By the Representation
of the People Act 1918, section 9, subsection 5.
Just for your Lordships' note we have included
that so I hope it is not necessary to detain your Lordships by
taking you to the text, which is on the authority, tab 13. It
was provided that any incapacity of a peer to vote at an election
arising from the status of a peer should not extend to peeresses
in their own right. At that time it was clear that a peeress could
not sit in the House of Lords and her privilege to vote for a
member of the Commons House of Parliament was to secure, if only
indirectly, that she should be represented in Parliament as a
whole. So the Attorney-General, at that juncture, recognised,
in our respectful submission, the element of constitutional balance
which he found reflected in the legislation which he was analysing
for the benefit of the Committee.
So we submit, in the light of this third argument,
that what is proposed is in truth a rupture in a constitutional
bargain that had already been struck. To use a vulgar phrase,
there has been a "double whammy" here. The group, or
whatever its dimensions may be for the matter of debate, would
truthfully be able to say for the balance of this Parliament:
firstly, we could play no part in the election of the House of
Commons. Secondly, we can no longer play a part in the affairs
of the House of Lords. Thirdly, and in consequence, we are subjected
to Government by a Parliament without right to influence its composition
CHAIRMAN: Subject to the point which is made
by the other side, that if there was a by-election before that
Act came into force, as a constituent in a constituency he or
she had a right
MR BELOFF: That would be an adventitious benefit
for what one suspects would be a very small minority for those
affected but I accept that point.
To pick up another point your Lordships will
have detected from the Government's case: they say, and say rightly,
that there are other categories of persons who are governed by
means of a Parliament in the election of which they have no role:
for example, minors who may acquire the right to vote in the course
of a particular Parliament. We say there is a clear distinction
to be drawn in this context between those who never had a right
and simply acquire it by way of benefit in the middle of a term
of Parliament, and those who had the right and have that right
taken away. That is a difference which the law recognises conceptually
in a whole host of areas.
The purpose of drawing your Lordships' attention
to those features of what is proposed is, as I submitted earlier,
to focus attention upon the approach to construction that we submit
ought to be adopted. We submit firstly and I make three points
on this, if I may. The first is that the features and the facets
of the proposed reforms, which I have sought to sketch out, impel
what I would term the minimalist approach to the construction
of the provisions of the Bill. To put it more fully, it should
be interpreted, as far as possible, in a way which limits the
size of the group of peers to which such disabilities, as I have
described, will apply. If your Lordships return to the case that
we developed in writing at paragraph 5 and paragraph 6, your Lordships
will see that we touch upon these particular issues. This is the
Government bundle. If I may, I will take your Lordships briefly
to the authorities that we suggest are in point.
The first point we make in paragraph 5, at page
5 of our case. The Bill affects Parliamentary composition and
the right to participate in the affairs of the legislature by
vote or otherwise. Accordingly, and reflecting the importance
of the matter, clear words are required to achieve any alteration.
For this purpose I take your Lordships back to an observation
of Viscount Birkenhead, the then Lord Chancellor, in the Viscountess
Rhondda case, to which I have referred, for the purposes of
an extract of the submission of the then Attorney-General, Sir
Edward Pollock. Your Lordships will find that again at tab 38
of the first volume of authorities and the short passage I have
in mind, that is the passage at page 365, 220 at the bottom of
As your Lordships recollect, I described the
issue before the Committee at that stage and the Lord Chancellor
said in the penultimate paragraph: "In an examination of
this question, it is first appropriate to inquire how the legislature
has, whether in recent times or in times more distant, dealt with
similar questions." That is to say, the composition, the
privileges of the House. "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."
Then he gives a series of examples and having given a series of
examples says, no doubt correctly, that it would be tedious to
set out the precise wording.
If your Lordships go to the foot of that page,
having set out provisions on the local Representation of the People
Act of 1918, he notes that it, (that is that Act), then sets out
three lines at the foot of the page 366 of the report, 221 of
the tab. "It then proceeds with great particularity to set
out circumstances in which women will be entitled to register
as Parliamentary electors for a university constituency and as
local government electors for any local government electoral area."
Then your Lordships will see how he contrasts that with the Act
under consideration. He says that: "The close and accurate
expressions usedthis is the second paragraph, page 367
or 222 of the bound volume" when it was desired to
confer upon women the right of sitting, say, upon a parish council,
point to the need of great caution in construing words which,
in their vague and general application, as it is contended, confer
the right of sitting and voting in this House, and confer it not
only upon those women whom the King may hereafter ennoble, but
also upon those for ennobling the prerogative has not yet been
"So we may derive from that the clear indication
that when one is considering affecting the composition of the
House, whether by adding to its number, as was the case in the
Viscountess Rhondda's claim, or detracting from its number, as
is the case in the Bill under consideration, one would expect
the words to be words of the utmost clarity and that one should
see that meticulous care has been taken to achieve any desired
effect. Words not used, in other words, carelessly, but precisely
and according to their accepted meaning.
CHAIRMAN: Meticulous care has not been taken.
We still have to interpret them.
MR BELOFF: Indeed, my Lord, but your Lordships
should assumethere, for example, and your Lordship anticipates
the tendency and the direction of argumentwhere a reference
is made to the issue of a writ rather than to the effect of a
return to the writ, or any other phrase, your Lordship should
approach the matter on the basis that that reflected the intention
of those who were responsible for the drafting.
LORD HOPE OF CRAIGHEAD: Mr Beloff, before you
leave the point, are you drawing any distinction between conferring
a benefit and removing a benefit? I think the discussion in the
Rhondda case, to which you have been looking, was all looking
at the conferring of a right to sit and vote, whereas the effect
of the Bill, as I understand the argument, is taking a right away
from those who have enjoyed this. Is there any room for distinction
between the two?
MR BELOFF: There is room for a distinction and
the distinction is in favour of Lord Mayhew's argument because
obviously it is more significant to remove from a group of persons
that which they already have, than to confer a benefit upon them.
So I would say that anything which was said by Viscount Birkenhead
on particular concepts of Viscountess Rhondda's claim would be
said with still more force when one is concerned with the deprivation
of rights or denial of rights previously enjoyed. The illustration
we give in the same paragraph of the written submission is a most
dramatic illustration of the way in which the Committee shrinks
from allowing rights previously enjoyed to be taken away by a
The Barony of Farnham case, of course,
was a recent determination of this Committee. It is in the third
volume of authorities, tab 49. It was the sequel to the Earl
of Antrim case. It concerned, as your Lordships may recollect,
the issue as to whether or not peers, who had been elected to
sit and vote on for a part of Ireland, could or could not retain
that right when their constituency had, in effect, ceased to exist
in consequence of the 1992 legislation, which made the Irish Free
State a self-governing dominion within the British Commonwealth.
If your Lordships go to the Opinion of Lord
Keith, who presided over the Committee at that stage, (this is
page 915), as is often the case, the argument was based on unusual
facts but the propositions of law are clear, as one would imagine.
I would just remind your Lordships, in particular, in the light
of Lord Hope's question to me, what the issue here was. One could
derive that from the first two paragraphs of the Opinion of Lord
Keith: "The petitioner is the twelfth holder of the Barony
of Farnham in the peerage of Ireland. He succeeded to the barony
upon the death of his grandfather, the eleventh baron, on 5 February
1957. The eleventh baron had on 18 December 1908 been elected
by the peers of Ireland to be one of the 28 Lords Temporal to
sit and vote on the part of Ireland in the House of Lords of Parliament
of the United Kingdom. Following his election the eleventh baron
regularly received Writs of Summons to Parliament and he sat in
the House of Lords in obedience to his Writs on a number of occasions
both before and after 5 December 1922. In particular he sat on
3 December 1924. The significance of the date 5 December 1922
is that it was on that day that the Irish Free State came into
existence as a result of the Irish Free State Constitution Act
1922 and the Irish Free State (Consequential Provisions) Act 1922."
Then the case for the petitioner is summarised
in this way: "The case for the petitioner is that after 5
December 1922 it was no longer possible for the eleventh baron
to sit in the House of Lords as one of the 28 Lords Temporal of
Ireland elected to sit and vote there on the part of Ireland.
The circumstance that after that date he received a writ of summons
to Parliament and in obedience to it sat in the House of Lords
had the effect, so it is maintained, of creating in him a barony
by writ of the United Kingdom descendible to his heirs general.
The petitioner claims to be entitled to that barony by writ as
the heir general of the eleventh baron."
No doubt, subject to correction from my learned
junior, I understand that the reason for seeking to make that
particular argument depends upon the different rights of generation
of entitlement to a claim to a peerage by descent, from acceptance
of and obedience to a writ of summons on the one hand; and a simple
descent from someone who had been elected to the previous machinery
on the other. But be that as it may, the force of submission was
obviously to this effect, as Lord Keith reminds one at page 2
of his Opinion. That the eleventh baron had after 1922 purported
to sit in respect of a constituency that no longer existed by
reason of the fact that Irish Free State had become a self-governing
dominion within the British Commonwealth. Nonetheless, despite
those facts which might appear prima facie compelling,
the Committee determined that they were not prepared to accept,
even by reason of such fundamental change to the context, that
the right had been abrogated by a side wind.
What was said at page 4 in relation to the Opinion
was that the argument was sought to be based upon the Antrim
decision, which determined that since the date of 1922, absent
machinery for continued election of these peers, there was no
basis upon which any further peers would have the rights of peers.
Lord Keith said this: "The first branch of the arm is unsound
and it is unnecessary to consider the second, which, indeed, the
Committee did not invite counsel to develop. The provisions of
the Act of 1800, regarding the position of Irish representative
peers, apart from those concerned with the mode of election, were
not expressly interfered with by the 1922 legislation. The passages
I have quoted from Article Fourth of the Articles of Union declare
that the 28 Irish representative peers shall be elected for life.
They are at all times to have the same privileges of Parliament
as the Lords of Parliament of Great Britain. True, it is also
provided they shall be the number to sit and vote `on the part
of Ireland' in the House of Lords of the United Kingdom, although
these words do not appear in the corresponding passage of the
incorporated Irish Act ..." "The words `during his life'
must be given full effect, and in my opinion it is neither necessary
nor correct to imply a condition that the entitlement to sit shall
come to an end if Ireland as a whole ceases to be part of the
United Kingdom." He then says that nothing in the Antrim
case, to which I have already referred, altered his opinion.
At page 7, if one goes to the opinion of Lord
Jaunceythis is 921 of the bound volume, 7 of the OpinionI
direct your Lordships' attention with respect to the last three
sentences of the first main paragraph on that page. "If the
petitioners are correct, it would follow that the 1922 legislation
must have impliedly removed from the representative peers their
right to sit and vote. I cannot accept such an assertion. It is
inconceivable that so important a constitutional right should
have been removed from the representative peers merely by implication
when there was every opportunity to achieve that result by express
provision". Then he defines a report of the opinion of Lord
Wilberforce in the Antrim matter. I note and I accept that
had the Government been sensitive to the arguments raised on behalf
of Lord Mayhew and others such as Lord Jauncey, and chosen to
accept that those arguments might at any rate have potential validity,
they could easily have achieved, by express provision, that which
they say they have sought to achieve. I repeat, I do not deny
that they had their opportunity, but it appears that they were
confident that they did not need to take advantage of it. We say
this is a striking example in unusual circumstances of seeking
not to create a situation in which members of this House are deprived
of rights, simply by implication and without the clearest words,
needed to attain that objective.
My Lord, we say at paragraph 6 that the approach
that has been relevant in what I would call peerage matters, germane
to the House's compositionthis is at page 6, paragraph
6 of our printed casewe say that it reflects a more general
rule of a fundamental constitutional right, and we draw your Lordships
attention to it. In a sense, it is not a matter we envisage to
be the subject of debate, but the right to participate in Government
is a fundamental constitutional right. The editors of the fourth
edition of Halsbury's Laws are content to allocate it to that
category in their analysis. If your Lordships want the reference,
it is bundle IV, at tab 169. We say that there is, in fact, a
developed trend reinforced by recent decisions in your Lordships'
House sitting at Appellate Committee. That fundamental or constitutional
rights cannot be abrogated by a side wind.
If I can just show your Lordships two cases,
both of the last two years. The first case, which is one that
we have put in the bundle of supplementary authorities, is the
case of ex parte Pierson, which is tab 17. One notices
that Lord Hope participated in this particular decision. In the
supplementary bundle of authorities, page 262, the Report. The
case, just to remind your Lordships, it was concerned with the
aspect of penal policy and whether or not the executive could
lawfully, in respect of persons in receipt of a mandatory life
sentence, increase the period of actual detention.
Your Lordships need to know no more about the
framework of the case than that. The passages that I have in mind
are to be found firstly in the speech of Lord Browne-Wilkinson
on page 573 of the Report, page 260 of the bound volume at letter
G. "I consider first," says Lord Browne-Wilkinson, "whether
there is any principle of construction which requires the court,
in certain cases, to construe general words contained in the statute
of being impliedly limited. In my judgment there is such a principle.
It is well established that Parliament does not legislate in a
vacuum: statutes are drafted on the basis that the ordinary rules
and principles of common law will apply to the express statutory
provisions." He cites academic authority including Professor
Cross. "As a result, Parliament is presumed not to have intended
to change the common law unless it has clearly indicated such
intention either expressly or by necessary implication. This presumption
has been applied in many different fields including the construction
of statutory provisions conferring wide powers on the executive."Then,
my Lord, he refers to a number of recent cases, all in the area
of the application of penal policy or of prisoners' rights. Then
at page 575 he refers to a recent case in which the Divisional
Court declined to construe a statutory power conferred on the
Lord Chancellor to prescribe the fees to be taken in the Supreme
Court as permitting a level of fees to be set such asI
quote the words of Lord Browne-Wilkinson's speech"to
preclude access to the courts by would-be litigants." Then
this is the key statement of principle: "The general words
of the statutory provision did not authorise the abrogation of
such a basic `constitutional right' as the right of access to
the courts. Although I must be not taken as agreeing with everything
said in the judgment in that case (in particular whether particular
basic rights can be overridden by necessary implication as opposed
to express provision), I have no doubt that the decision was correct
for the principle reasons relied on by Lord Jauncey in his judgment."