Select Committee on Privileges Minutes of Evidence

Examination of Witnesses (continued)



  LORD WIGODER: What significance do you attach, if any, to the word "accordingly" at the beginning of 7(2)?

  MR BELOFF: The word "accordingly" is a word which in our respectful submission builds a bridge between 7(1) and 1. "Accordingly" says, as it were, you have seen what we have said before in 7(1). 7(1) refers one back inter alia to section 1 and what 7(2) is doing is saying, "Therefore, this is what we are going to do. This is how we are going to do what we have said we are going to do in general terms and when we have said we are going to do it." We say it reinforces the fact that you cannot read them in isolation and that there was a design, objectively speaking of course, in using this particular phraseology.

  Perhaps I could renew my apologies to my Lord, Lord Nicholls if I said anything that was offensive.

  May I turn back to Halsbury's Laws and take your Lordships through the sequence as it is there described. This is in tab 69. May I start with 535, which is at 1330 of the volume, describing the right of hereditary peers to receive writs of summons: "Subject to certain exceptions, any person who succeeds to a peerage of England, Scotland, Great Britain or the United Kingdom and proves his right to such peerage, and any person who is created a hereditary peer of the United Kingdom is entitled to receive, in virtue of his peerage, a writ of summons to sit and vote in the House of Lords." So, subject to the exceptions, it is the status of being an hereditary peer that entitles one to receive the writ. Then, at 701, this is page 1332 of the bounded volume, it says, "A new Parliament can be called together for the transaction of business only by the Crown. It is summoned in pursuance of a royal proclamation made with the advice of the Privy Council. This proclamation directs writs to be issued by the Lord Chancellor from the office of the Clerk of the Crown in Chancery and by the Secretary of State for Northern Ireland from the office of the Clerk of the Crown in Northern Ireland."

  Page 702 deals with the writs of summons to Lords and your Lordships have seen the forms of writs of summons. It says, "Writs of summons, in which are stated the day and place of meeting of the new Parliament, are issued from the office of the Clerk of the Crown in Chancery by the direction of the Lord Chancellor to such Lords spiritual and temporal as have established their right to receive them." Your Lordships may note the footnote that since 1681 Parliament has always met at Westminster, but there is no constitutional objection to its being summoned to meet in any other place.

  Then, my Lords, the consequence of the receipt of the writ which has been issued, if one chooses to obey its command, is set out at 704: "The members of both Houses of Parliament" -including, of course, your Lordships' House—"must make and subscribe the oath of allegiance, or make a solemn affirmation in lieu, on taking their seats for the first time, in every new Parliament and on a demise of the Crown."

  Finally, your Lordships will see that at 709, under "Proceedings in the House of Lords", it says: "In the House of Lords, when the House has been resumed and prayers have been said, the Lord Chancellor takes the oath. He goes alone to the table of the House, repeats the oath of allegiance and signs the roll, after which he returns to the Woolsack, and any Lords who are present take the oath or make the affirmation prescribed by statute. Each Lord presents his writ of summons to the clerk, signs the roll and shakes hands with the Lord Chancellor." Of course, all your Lordships will no doubt have vivid recollections of that particular process. So the writ, having been duly issued and acted upon is then returned and no doubt thereafter taken away duly by the clerk. That is the sequence described in Halsbury.

  The analysis that we advance on Lord Mayhew's behalf has two critical issues, both of which appear to be controversial, although it may be that the Attorney-General will be able to indicate—I do not invite him to do so unless he chooses—the extent to which we rightly discern that both are controversial. The first is that it is the writ of summons which is the sine qua non of a right to sit and vote, a necessary but we say not a sufficient condition because there has to be the return made to the writ. The reason we surmise that this may be controversial is what is said by the Government in paragraph 30 of their case. I take your Lordships to it. It is 29(2) I have in mind, which says in the second sentence, "It is the fact of being a hereditary peer which entitles such a peer to sit as a member of your Lordships' House, and receipt of the writ of summons has no legal effect on its own." My Lord, we respectfully submit that that is a misconstruction of the Wensleydale Peerage case to which I shall shortly come, but it is a clear statement that as we understand the Government's case, as they advance it, they are suggesting that it is the status of a peer as distinct from issue or, indeed, obedience to the writ of summons which has the legal effect of entitling a person to be a member of this particular House. One notes in 29(3) they refer to what they call "the declining importance" of the writ of summons which they say is traced in the Parliamentary Election for Bristol South East case, which your Lordships will recollect, where Viscount Stansgate sought, nonetheless, to contest the parliamentary election.

  LORD HOPE OF CRAIGHEAD: Do you accept the accuracy of the first sentence in paragraph 2? For example, let us take the case of Her Majesty's judges who do receive a writ of summons. It is not suggested, is it, that they are entitled to sit in the House as members simply because they receive a writ of summons?

  MR BELOFF: My Lord, the writs that they receive, although designed to secure their attendance at the opening of Parliament, are distinctive writs; we say they are writs of attendance. We do not for a moment suggest that all judges who receive such writs then become members of the House.

  LORD CAMPBELL OF ALLOWAY: Could I ask if at some time you could deal with the question of abandonment which is a contention, it is at paragraphs 25 to 28, because it relates to the question of construction and one issue could affect the other.

  MR BELOFF: My Lord, may I make it clear that there is no point that has been abandoned in the context of the motion moved by Lord Mayhew or of the question that has been referred by the House to this Committee. So to suggest, my Lord, it portrays to those who have suggested it a misunderstanding no doubt inadvertent of Lord Mayhew's position— There was a stage when the Bill as originally drafted was thought by those then advising Lord Mayhew and, in particular, my learned junior (whose opinion to that effect is set out at pages 81 to 88) to be entirely incompetent to achieve its effect by reason of the fact that, as we would respectfully still contend, what generates the right to sit and vote in your Lordships' House is obedience to the writ of summons as distinct from the membership of the peerage, which may in the majority of cases generate the right to receive such a writ. My Lord, that argument which was then advanced in good faith and, we respectfully say, with force could not be sustained in the light of the so-called Weatherill amendment because it was clear that to continue to promote that argument would make a nonsense of clause 2. Clause 2 would have no meaning if clause 1 had no effect. When that particular development occurred in the course of the parliamentary procedure Lord Mayhew did not seek to pursue that particular argument, so by the time the motion was moved on 27 July for a reference of a question to this Committee that argument was not being pursued and the questions that were submitted and the issues that were set out by agreement no longer advance an argument that has now become obsolete, but abandonment is not, with respect, the correct word in the context of the question that has been referred. We would rather put it in this way, i.e. we have been respectful of the guidance that is necessarily given by the language that is used and as the language that is used itself alters or the context in which the language falls to be construed is altered by alterations or other related parts of the Bill, so to that extent we have adjusted our argument to meet the Bill in its contemporary incarnation. That is in short the position. I am grateful to my Lord, Lord Campbell for inviting me at a relatively early stage to put on one side any suggestion that your Lordships may have that Lord Mayhew has been beating some retreat ever since this question was referred to the Committee. That is not the position. His position remains the same as it was when the question was referred.

  Going back to my previous point, the Government appear to be saying at that particular juncture, putting it colloquially, it is being a peer that entitles you to sit, it is nothing to do with receipt of the writ of summons by itself and then they appear to underline that by speaking of the declining importance of the writ of summons. Both those matters, with respect, are wrong because they misunderstand the cases that they are seeking to analyse. As far as the second is concerned, the position is simply this: there have been at least two ways of creating peers recognised in history. One, of course, is by the issue of letters patent of which the first recorded instance was in 1387. The other is by issue of a writ of summons and consequence of obedience of that writ of summons which even in the absence of letters patent creates a peer. We are now concerned with the effect of the issue and obedience to the writ of summons not on the creation of peerages but on the rights that peers enjoy and in that context we detect no declining importance of the writ of summons, nor do we suggest that the Parliamentary Election for Bristol South East gives any colour to that; it is simply addressing a different point.

  If your Lordships then go forward to clause 37 of the Government's case, the matter is put in terms of the writ of summons more acceptably. I will read the full paragraph: "Thus clause 7(2) supplements clause 1 as a `belt and braces' provision." I will comment in due course upon the somewhat elusive way in which the Government seek to explain the significance of clause 7(1) and 7(2) throughout their case. Clause 1 removes within its Parliament one necessary precondition to sitting as a member of your Lordships' House, namely being a hereditary peer. Clause 7(2) spells that out and then your Lordship sees that a second necessary precondition to sitting as a member of your Lordships' House being in receipt of a writ of summons is also removed within this Parliament. There appears to us, though we may be guilty of a misunderstanding, a clear tension between paragraph 29(2) which says that receipt of a writ of summons has no legal effect on its own—

  CHAIRMAN: The emphasis is on the words "on its own". What they are saying in 37 is that there are two pre-conditions. One is that you should be a peer and therefore entitled to a writ and, second, that you should receive the writ to attend. What they are saying, as I read 29(2), is that simply to receive without more does not have a legal effect.

  MR BELOFF: That is also as a matter of law wrong.

  CHAIRMAN: So you attack that too.

  MR BELOFF: I attack that too. There might be a tension between saying that a writ of summons has declining importance and saying that its receipt is a necessary precondition, but it matters not.

  CHAIRMAN: You are not giving effect to the words "on its own".

  MR BELOFF: The point I adverted to was the difference between 29(3) and 37 as distinct from 29(2) and 37. My Lord, what we do say is that it is the writ of summons which is a sine qua non right to sit and vote but it is not a sufficient condition. The second point is that it is obedience to a writ which makes one a member of the House of Lords with the consequent rights of sitting and voting and if one has merely been issued with, that is to say received a writ of summons and made no return to it, one has no right to sit or to vote and it may be that that is not incompatible with what is said in the second and third sentences or broad thrust of paragraph 37.

  My Lord, I was seeking some domestic analogy to try to illustrate the point helpfully to your Lordship and the analogy occurred to me of the now obsolete existence in certain Oxbridge colleges of the notion of founder's kin whereby, as I understand the history of the matter, descendants of graduates of those particular colleges had an entitlement themselves by virtue of that to come up to the college as an under-graduate. We would respectfully submit that someone who had a right as founder's kin could not describe himself as an under-graduate merely because he had that right. No doubt the right in modern times would entitle him to demand an application form, but, again, even the issue of the application form would not make him an under-graduate. He would not become an under-graduate until he had responded to the application form by taking up his place and we say that if he was asked why he was an under-graduate, he would say, "Because I have taken up my place in this college." That is why we say that although there is a linked series of stages that follows from the other, nonetheless there are distinctive rights generated at each stage.

  My Lord, can I just elaborate on that now by reference to an authority and I have no doubt that the Committee will direct me as to the extent to which these matters do or do not prove to be of assistance. If your Lordships would perhaps go back now to paragraph 7 of our written case. My Lord, there are two points that we make which reinforce the significance of the writ itself. The first is that even if someone were not previously a peer and were to receive a writ of summons, it may be even in error, that person would, by reference to the fact of obedience to that writ of summons, become a peer. That, my Lords, is made good by what is stated in relation to the case of the Barony of Strange in Cruise on Dignities, Second Edition, volume iv, tab 61 and again, in a sense just as the Barony of Farnham case was an extravagant example of a particular principle so this is both an extravagant and unusual example of another principle. Page 317 of the book, page 1193 of the bound volume, says: "With respect to the fourth question, it is certain that in many cases an act of the Crown proceeding on a mistake may be revoked; upon the ground that the king was deceived in his grant. But in the printed case of the Barony of Strange in 1737, where a writ of summons was issued by mistake, it is said, `The King's grant of nobility by writ of summons was not governed by any of the rules by which his gift of lands was governed at the common law. The king's gift of lands was not good but by his letters patent; and by special words of grant. No inheritance passed from him without the word heirs, and if he was deceived in the motive which induced him to grant, his grant was void; and he might by his prerogative repeal it by scire facias. But if a commoner was once summoned to parliament, and sat, his blood was ennobled, and his title and dignity descended to his hairs; though the king's motive to summon him were merely personal; vis. to have his advice and counsel, though there were no words in the writ of summons from which the king's intention could be collected, to give to the person summoned the state, title and dignity of a baron; much less to expound it to an estate of inheritance. 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. His creation into the state and dignity of a baron was by operation of law, in consequence of his once sitting, and did not depend on the king's intention, which it would be of dangerous consequence to be guessing at, after such a length of time."

  There stands an illustration, firstly, that what is essential to generate the rights inherent in a writ of summons is that one takes, if I can put it this way, the opportunity that is offered by that writ and actually exploits it by sitting; it is that which gives the full effect to the writ of summons. Also, even if a writ of summons is apparently issued by mistake, there is law sui generis that says, nonetheless, the effect of obedience to that writ, by sitting, is such as to create someone a peer, we respectfully submit that, though of course your Lordships appreciate that there are, on the one hand, discussions on the books and cases on that which create, persons who were previously commoners peers by obedience to writ of summons, whereas we are speaking in the context of this question about the rights of persons who are already peers when they obey writs of summons. Nonetheless, we say the analogy is exact because these are all writs of summons, they are phrased in a particular way and it is the incidents of those writs and what one needs to do by way of response to those writs which is critical to the argument that we advance.

  My Lords, the other aspect which is why it is that one needs the writ and being a peer is not itself sufficient can be shown in the famous case of the Earl of Bristol which we find in bundle i at tab 30. If I recollect the history of this matter exactly, the Earl of Bristol had offended Charles I and notwithstanding that he was an earl and as such entitled as a peer of the realm to a writ of summons, he had not been issued with one and because of that he referred his quandary to the Lords' Committee for Privileges. The petition itself, 78, left-hand column, is in the bound volume and again, without wearying your Lordships with it, I hope I may freely translate. He has said that, being a peer of this realm, he has not received any writ of summons to come to this Parliament and he makes his complaint accordingly. "It is agreed, that this petition be referred unto the Lords Committee for Privileges." The Lords' Committee for Privileges then debate the matter and, at page 79, left-hand column, your Lordships will see that the report that is made is that "a writ of summons may be sent to this petitioner, and to such other Lords to whom no writ of summons hath been directed for this Parliament; excepting such as are made incapable to sit in Parliament by judgement of Parliament or any other legal judgment". There is an interesting historical sequence to that particular matter but I do not detain your Lordships with it.

  All this shows is that it is not enough to say, "I am a peer and accordingly I am entitled to sit and vote in the House of Lords". The issue of the writ is a sine qua non, which is why it was felt necessary for the House to invite the monarch to issue a writ of summons to someone who was entitled to receive it. My Lords, one will see both in those statutes which enable and in those statutes which disable provisions about the question of issue of a writ and the question of the consequences of issue of a writ; in other words that the sitting and voting is regarded as something sequential to but separate from the issue of the writ, as has been reflected.

  Again, if I may just take your Lordships to three of the statutes that we have referred to in paragraph 8 of our printed case. Those which actually disenfranchise, if I can somewhat adapt that word, peers are yet more instructive when one comes to ask the question, at the end of the day, whether there was not a perfectly recognised mechanism available to the Government to achieve their avowed intent, but at the moment I concentrate merely upon the fact that in statute the distinction that I have sought to draw has some resonance before taking your Lordships very briefly to the major cases that reinforce the general point. They are all in bundle i of the authorities.

  I start with the Appellate Jurisdiction Act which is at tab 15 of 1876, section 6 of that Act. It dealt with the reform of our Supreme Court and the constitution of Lords of Appeal in Ordinary. Section 6 is both a qualifying and limiting provision by reference to the rights of Lords of Appeal in Ordinary. The relevant paragraph is the pre-penultimate paragraph which begins with the words "Every Lord of Appeal in Ordinary" and I read those, if I may. "Every Lord of Appeal in Ordinary, unless he is otherwise entitled to sit as a member of the House of Lords, shall by virtue and according to the date of his appointment be entitled during his life to rank as a Baron by such style as Her Majesty may be pleased to appoint, and shall during the time that he continues in office as a Lord of Appeal in Ordinary, and no longer, be entitled to a writ of summons to attend, and to sit and vote in the House of Lords"—and then it is non-hereditary—"his dignity as a Lord of Parliament shall not descend to his heirs." So there one has a recognition in the statute of the distinction between the two rights, the right on the one hand to a writ of summons to attend and on the other hand the right to sit and vote in the House of Lords. One sees, in our respectful submission, that what the writ of summons generates is a right or even obligation to attend. It does not impose a right or confer a duty to sit and vote in the House, that is regarded as a separate entitlement and the entitlement, of course, in our submission is generated by the obedience to the particular writ that one has received.

  Can I take your Lordships to two modern pieces of legislation, both reflecting interesting events in our political history but which give legal clothing in consequence of them. First of all, the 1958 Act which entitled the creation of life peerages, this is at tab 20 of the bound volume, page 59. This, added to what was then, as it were, the life peers in the discrete category of Lords of Appeal in Ordinary it says that, without prejudice to that, "Her Majesty shall have powers by letters patent to confer on any person a peerage for life having the incidents specified in subsection (2) of this section." Then (2)(a) deals with title or style; and then (b), subject to subsection (4) which deals with disqualifying matters, to receive writs of summons to attend the House of Lords and sit and vote therein accordingly and then in (4), "Nothing in this section shall enable any person to receive a writ of summons to attend the House of Lords, or to sit and vote in that House, at any time when disqualified therefore by law." So we suggest again that there is a recognition there that these matters are separate. If one were self-sufficient it would be unnecessary to speak to the other and of course one only has to resort to the vocabulary of the writ of summons to see again that it deals with matters of attendance.

  The Peerage Act of 1963 was the consequence of the dilemma to which the then Viscount Stansgate found himself. Your Lordships will find that at tab 21, page 60. One and two deal with the entitlement to receive an instrument of disclaimer, the last three lines have some bearing, "... no such instrument shall be delivered in respect of a peerage by a person who has applied for a writ of summons to attend the House of Lords in right of that peerage" and that reflects peerage entitlement to a writ of summons, but if it ended there what the writ of summons does is not answered. Section 3(1) across the page, page 62, says, "The disclaimer of a peerage by any person under this Act shall be irrevocable and shall operate, from the date on which the instrument of disclaimer is delivered, (a) to divest that person ... of all right or interest to or in the peerage, and all titles, rights, offices, privileges and precedence attaching thereto" and we would say `rights' notoriously include a right to receive a writ of summons. Then your Lordships will see the need to relieve him of all obligations and disabilities, etcetera. Section 4 deals with Scottish peerages and they are going to be the same rights to receive writs of summons to attend the House of Lords and to sit and vote in that House, and Section 6 says, "peeresses have the same right to receive writs of summons to attend the House of Lords, and to sit and vote in that House ..."

  So, again, unless one attributes to Parliament superfluous vocabulary, one asks the question why is it that the rights which are described are not only rights to receive the writs of summons to attend but also the right to sit and vote; and we say the answer is because it is recognised that the mere receipt of the writ of summons is insufficient. It is the obedience to that writ which generates the second right which it is also intended to and is effective to confer upon this new class of peer.

  My Lords, I shall return at a slightly later stage to those statutes of which your Lordships will see there are many which have disqualified persons, both Lords temporal and spiritual from sitting in the House. One has in mind the Irish church, the Welsh church, bankruptcy, disqualification acts, insolvency acts and the like.

  CHAIRMAN: It is accepted that Parliament by statute can take away the right of a peer to sit.


  CHAIRMAN: All these examples where Parliament has done so, do they really help us in this context?

  MR BELOFF: They only help you insofar as your Lordships receive and accept the submission that when rights have been taken away it appears that the rights are both rights to receive writs of summons and rights to sit and vote and we say that they are therefore separate rights, they have been dealt with separately and we say the contrast between those formulae and the formula hitherto adopted in section 7(2) is that it was to cut short the abbreviation of the rights at the point of the issue of the writ of summons.

  CHAIRMAN: Let us have a look at one or two of those by way of example.

  MR BELOFF: The best ones are referred to in paragraph 24 of our case and again they are all in bundle i and your Lordship is quite right, it is quite convenient to take them now bearing in mind the time. The Irish Church Act is all in volume i, tab 11, page 42, section 13. My Lords, I thought just as a matter of convenience that we should actually set out the first and introductory page of all this legislation. You Lordship can see whence they came, and I merely remind your Lordship that that is available. Section 13, after referring to dissolution of ecclesiastical corporations, "on and after that day no archbishop or bishop of the said Church shall be summoned to or be qualified to sit in the House of Lords as such ..." The Bankruptcy Disqualification Act 1871, section 2: "Every peer who becomes a bankrupt shall be disqualified from sitting or voting in the House of Lords, or in any Committee thereof, and further, if a peer of Scotland or Ireland, shall be disqualified from being elected to sit and vote in the House of Lords." The question of the issue of the writ of summons is dealt with discreetly in section 8 over the page: "A writ of summons shall not be issued to any peer for the time being disqualified from sitting or voting in the House of Lords." So both matters are attacked. Your Lordships already have the Appellate Jurisdiction Act.

  CHAIRMAN: We have seen a couple of examples. How are we getting on?

  MR BELOFF: My Lord, that is a quantitative and not a qualitative estimate you are asking me for. The Attorney-General has informed me that he intends to be succinct and therefore, my Lord, in the light of what he has told me, there will be no problem in finishing within the two days, but it is clear, I fear, that I am going to burden your Lordships for a good deal longer.

  CHAIRMAN: But you will finish today, will you not?

  MR BELOFF: I would hope so, my Lord. Even if I were not to do so, according to the Attorney-General's estimate we would still have plenty of time.

  CHAIRMAN: You may not wish to follow the Attorney's arguments but at least you can follow the qualities of his speech if he is going to be succinct!

  MR BELOFF: I take your Lordship's observations to heart!

  CHAIRMAN: We will adjourn until two o'clock.

  After a short adjournment

  CHAIRMAN: Yes, Mr Beloff?

  MR BELOFF: If it please the Committee, before the adjournment, under the stimulus of your Lordships, I had taken you with relative celerity through certain statutes—

  CHAIRMAN: We commend your celerity.

  MR BELOFF: Indeed, have encouraged it—set out in paragraphs 8 and 18 of our written case both relating to qualifying and disqualifying of powers, and I had made the submission that what was critical was the obedience to the writ and the discrete concept of a right to sit and vote is separated from and consequential upon being summoned. If I may take your Lordships—again I hope selectively—to certain of the case-law that we refer to in paragraph 9. Again the proposition that we are advancing is that it is the obedience to the writ which is the sine qua non of the right to sit and vote thereafter.

  My Lords, in Nevills Case, which your Lordships have at tab 31 of Volume I of the authorities, page 82 of the bundle, as your Lordships see, in effect the summary says it all. The heading in a sense summarises the effect that it is cumulative: "The delivery of the writ does not make a man a baron or noble, until he comes to Parliament, and there sits, according to the command of the writ. But if the King creates any baron by letters patent under the Great Seal, to him and his heirs, or to him and to his heirs of his body, or for life, &c, he is a nobleman presently." So they are concerned, of course, with the distinction between the creation of peerages, but focusing for present purposes on the effect of a writ, and as to when a writ has effect, either in terms, now obsolete, of creation of a peer or in terms of generating the rights that are in some sense inherent in the writ. It is the sitting that is important and your Lordships see that how question arises in Parliament, "And it was resolved"—I now take it from line 4 of the judgment—"by the Lord Chancellor, the two Chief Justices, Chief Baron, and divers other justices there present, that the direction and delivery of the writ did not make him a baron or 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, and the words of the writ were well penned .... " and then they set those out in the Latin—" ... he is called a peer of Parliament the which he cannot be until he sit in Parliament, and he cannot be of the Parliament until the Parliament begin; .... " and then there are certain ancillary matters to that.

  CHAIRMAN: It is impossible to resist in these old reports turning to the next case. Do not read it; just read the two lines in the heading.

  MR BELOFF: I can see why your Lordships find it more irresistible than the submissions I make. The next case is The Vaux Peerage in the Committee of Privileges, tab 32 of the same volume, and your Lordships will see that an argument is advanced, on the one hand, by Sir Harry Nicolas, who Mr Lofthouse tells me—and who would dare controvert him in such a matter?—was the leading peerage counsel of his day, and Sir John Campbell was the Attorney-General who debated the matter on the other side, and there are certain observations that each makes before I come to the dispositive part of the judgment I would like to take your Lordships to.

  Firstly, that if your Lordships would go to page 101 of the bundle—if one looks at the bundle reference at the bottom it is the safest—one of the issues which arose is the degree to which one might presume that certain instruments have or have not, in fact, been delivered. What was in issue here was that there was no evidence of a writ of summons having been issued prior to a particular sitting and nonetheless, despite that, certain inferences were drawn that the actual holding of the barony of Vaux was created by writ of summons and sitting in Parliament and, therefore, descendable to heirs general. So they had to consider what it was that generated the peerage and the right to sit.

  Sir Harry Nicolas, at page 101, and then I am looking above bold 571 some eight lines into the page, in the third sentence of that paragraph, says: "No baron, whether created by patent, or without patent, could take his seat in this House without producing his writ; and as the writ in the case of baronies would sufficiently account for the existence of the dignity, it is only necessary to presume the writ—to presume that which must, ex necessitate rei, have issued, and the title is complete." So what is being said in effect is that he could not have sat here unless he actually had a writ and if you can establish that he sat here, which is a critical factor, you may work backwards and you can presume that the writ was issued.

  If your Lordships go two pages on to 103, at the foot of the page your Lordships will see—again I am taking the letters in bold—577 in the centre of the page and then going on a little further, some six lines further: "The patent gives him no absolute right to come here, unless he be duly summoned to attend; for until he is called upon to perform the functions of a peer by a writ from the Crown, he cannot enter this House. The writ is the King's command to attend his Majesty in Parliament." So that is, we say, the function of the writ. "When he obeys that command for the first time, if the dignity be created by letters patent, the patent is read at your Lordships' table, to show the origin and nature of the dignity, and it is returned to the peer as evidence of his title to the peerage." So again it is the sitting that completes, or, in the language of Sir William Anson, as I shall show your Lordships in a moment, as it were, perfects the relevant title.

  Across the page, 104, at the foot of the page, some eight lines into paragraph 579 in the Clark and Finelly report, a third of the way down the page, there is again a description of the writ of summons as being "simply the King's command to a person to perform a particular duty. It grants nothing; it creates nothing; it cannot therefore ennoble. In the Abergavenny case", which I have just read to your Lordships—"where the writ of summons had issued, but the party died before he could obey it, the decision of all the Judges was, that a person summoned to a Parliament is not a peer until he obeys the writ. The peerage under a writ is consequently obtained, not by the writ, but by sitting in this House." What we say by analogy is that a right to sit and vote in this House is created not by the writ itself but by the obedience to the writ, the return to the writ, and taking one's seat accordingly.

  I will take your Lordships on, if I may, to the argument of the Attorney-General so that your Lordships can see that on this issue in any event there was a certain comity of view. If your Lordships go to page 110, the end of the first main paragraph on that page, that is to say, about seven or eight lines in from 596 of the report, the four lines at the end of that paragraph: "I allow that if the Crown calls up by writ a commoner whose father is not noble, and he takes his seat,"—and I emphasise those words—"a peerage is thereby created descendible to the heirs of the body of that peer."

  Then your Lordships will see over the page, finally, before I come to the judgment or opinion of the committee themselves, at 111, just above the 599 of the report, that is some third of the way down the page: "The doctrine of Sir Harry Nicolas is, that the writ does not create the barony: no doubt it does not, but it enables the person to whom it has been granted, by taking a seat in your Lordships' House, to acquire a barony; it operates as a conditional grant—it is a grant on condition that the grantee shall take his seat in your Lordships's House, and then his blood is ennobled and the peerage descends to his posterity." And then some six lines down just a single phrase your Lordships may see: "As soon as he has taken his seat he is noble."

  So, again looking at the matter conceptually, the writ, of course, gives you what I call the opportunity, what is described elsewhere as a conditional grant, something that you may exploit but whose rights are thereafter derived from the fact that you take your seat in obedience to the writ and thereon you have, if it is a question of actually creating a peerage—by now an obsolete method—a peerage. If you are already a peer you receive a writ of summons. It is when you sit you then have the rights attendant upon that, i.e. to participate in the affairs of the House.

  LORD CAMPBELL OF ALLOWAY: Could I ask a question. These authorities and the essence of your case, or part of the essence of your case, appear to be that under the peerage law you sit in return to the writ and that confers the entitlement to sit until the end of the Parliament. I am putting it very simply because I am a fairly simple person, but is that proposition disputed? Is that in dispute as a matter of peerage law because I put this question to the Lord Chancellor on 27 April and he said, no, he was not abrogating the peerage law and I read the Government's case. It does not seem to me that they are disputing this as a proposition of peerage law. I am only trying to find out, is this common ground?

  MR BELOFF: I am grateful to your Lordship because you may recollect that when I opened this stage of my submissions I did advert to a measure of doubt as to the extent to which the proposition was controversial. If it is accepted that it is the obedience to the writ which generates the right to participate in your Lordships' affairs and that the issue of the writ per se is ineffective in that context and only generates the right to obey and to return to the writ, then, of course, from that platform, if it were common ground one could proceed rapidly to a consideration as to whether or not the bill in its present form, if enacted with that language, was effective to achieve the objective of taking away rights not only of those persons to whom writs have been issued but also of those persons to whom writs have been issued but who have made a return to the writ.

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