Select Committee on Privileges Minutes of Evidence


Examination of Witnesses

THURSDAY 14 OCTOBER 1999

THE HON. MICHAEL BELOFF, MR JOHN LOFTHOUSE, THE LORD WILLIAMS OF MOSTYN AND MR PHILIP SALES

  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 motion—and I respectfully submit that the reason why the House accepted it—is 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 handed)

  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 Government's objective.

  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 Government—it is at page 22 of the bound volume, page 2 of the Government's case—it 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 invites.

  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 not—and 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 course.

  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 pivots—if it pivots on a single word between Lord Mayhew and the Government—on 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 of Chester.

  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 group—hereditary peers which are, of course, historically the senior element of the Parliament—will 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 that date.

  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 Pollock.

  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 or activities.

  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 the volume.

  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 used—this 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 exercised.

  "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 assume—there, for example, and your Lordship anticipates the tendency and the direction of argument—where 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 general word.

  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 Jauncey—this is 921 of the bound volume, 7 of the Opinion—I 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 composition—this is at page 6, paragraph 6 of our printed case—we 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 as—I 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."


 
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