Examination of Witnesses (continued)|
THURSDAY 14 OCTOBER 1999
LORD WIGODER: What significance do you attach,
if any, to the word "accordingly" at the beginning of
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
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 indicateI
do not invite him to do so unless he choosesthe 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
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
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.
MR BELOFF: Yes.
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
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
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 itset
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 Lordshipsagain
I hope selectivelyto 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 meand 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
Firstly, that if your Lordships would go to
page 101 of the bundleif one looks at the bundle reference
at the bottom it is the safestone 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 writto 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 seeagain I am
taking the letters in bold577 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 grantit 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 peerageby
now an obsolete methoda 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
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.