Select Committee on Privileges Minutes of Evidence

Examination of Witnesses (continued)



  CHAIRMAN: This is what is said in the headnote but what matters during the period is to be found in the journals of the House, not in the writ itself.

  LORD HOPE OF CRAIGHEAD: It is an interesting example, this case of a court being asked to determine a question about membership of one of the Houses of Parliament. I suppose the way the court came in is because the question turned upon the construction to be placed upon an Act of Parliament?

  MR BELOFF: Yes, it did, otherwise, my Lord, that might have been a question of interference with the privilege of the House. Nonetheless I used it simply to underscore in another context the distinction we say is fundamental to this question.

  I think, my Lords, I have dealt already with this, but your Lordships will see in paragraph 20 another facet of the same theme, that there are two types of penalty, one for failing to obey the writ and the other for departing without licence. I think your Lordships actually have open at the moment Volume IV, so perhaps I can show your Lordships very quickly part of a classic work Palmer on peerage law, tab 62, 1195. Between pages 1200 and 1201 of the bound volume your Lordships will see that the author deals with a duty of a peer to attend on the summons and that deals with that obligation and the penalty of amercement or otherwise for failure to comply with it, and then he cites from Coke, just above the heading "Disqualifications", a discrete penalty for departure from Parliament without licence which is something separate from non-attendance. So we say again that reinforces the structural cleavage that we have sought to identify.

  If your Lordships look, finally, at the supplementary authorities, tab 8—there is always a tendency to test whether these are not only antique but obsolete propositions—as far as this is concerned, in evidence or a memorandum that was supplied your Lordships will see at tab 8, page 84, it is the Select Committee on the Powers of the House in relation to the Attendance of its Members. This is 1956, earlier this century, and your Lordships will see it is the then Attorney-General, subsequently, of course, Lord Chancellor, as Viscount Dilhorne, then Sir Reginald Manningham-Buller, accompanied by Mr Squibb, page 102. This was the memorandum supplied by the Attorney-General and junior counsel to the Crown in peerage matters and they, as your Lordships will see, cite again from Coke at page 102, the very passage that I referred to in distinction between the penalties for non-attendance in the sense of not making a return to the writ, on the one hand, and absence from the House when one is participating or should be participating in its affairs, on the other. So that, although these propositions are ancient in origin, they appear to have contemporary vitality.

  Your Lordships then see that the argument that we advance is that this Bill must be analysed in accordance with the rules of construction that we have contended for, in a manner that not only would deny to wholly general words the abdication or abrogation of historical constitutional right but also would attach significance to words that carry with them a weight of historic meaning and carry with them a sense of particular incidents but limited incidents, and it is against that background that we draw your Lordships' attention once again to the text of the bill, which you have in the Appendix in the incarnation in which we are discussing it at page 55.

  My Lords, may I pause for a moment just to remind your Lordships of what I said in answer to my Lord, Lord Campbell of Alloway in relation to the allegation of retreat or abandonment. The opinion of Mr Lofthouse, my junior counsel, that is, as it were, the casus belli as far as this reference is now concerned, is to be found at page 81 and following of the bundle and it is actually useful, if I may respectfully say so, if one looks briefly at it in any event to see what is there, what survived and what cannot survive subsequent amendment in the course of the passage of the bill through the House.

  What Mr Lofthouse there focused on was the existence of the bill without the so-called Weatherill amendment. He analyses and sets out clause 1 and clause 4, which are now clause 1 and clause 7, at paragraph 2. He says in paragraph 3 that clause 7 is ineffective to change the law because he points out that under strict law one is not a member of the House of Lords by virtue of a hereditary peerage: one is a member of the House of Lords by obedience to a writ of summons, and he points out, indeed, as is uncontroversial, as I have already made clear, that certain hereditary peers are disqualified and accordingly could not be members in the sense of participating in the affairs of your Lordships' House, and against that background he goes on to say in paragraph 7 that an hereditary peer who sits, if he were asked, "By what right do you sit here?" ought, if he were faithful to constitutional usage and legal analysis, to say, "Not because I am a peer but because I have received a Royal command contained in a writ of summons and I came in obedience." Mr Lofthouse says that true it is that his status as a peer confers the right to call for a writ but the fact is that he has to make return to the writ before he enjoys the right to participate in the House, and he goes on to say the writ is the crucial element and he refers to certain cases that I troubled your Lordships with before the adjournment.

  The reason that, when the Weatherill amendment was made, it was no longer possible to say that clause 1 was in effect a meaningless clause, was because clause 2, being then the Weatherill amendment, made an exception to a general exclusion, and if there were no general exclusion there could not be any exception. So Mr Lofthouse realistically said we will have to accept that paragraph of clause 1 is a summary, inelegant and inaccurate way of seeking to attain certain objectives and we must now concentrate on the manner in which those objectives have or have not been attained by concentration on the bill in its new form.

  I will come, as your Lordships have already teased out of me, to the substance of the argument in a moment but I merely point out here—I hope not unfairly—that there is again a certain ambiguity in the Government's approach as to whether or not clause 7 has any independent value, whether it was necessary at all, whether it was, as lawyers, say, ex abundanti cautela or for some other purpose.

  If your Lordships go to the Government's case your Lordships will see why I suggest that there is an almost inherent tension in their position or uncertainty in their position. At page 33, paragraph 30, sub-paragraph 1, they say that clause 1 is in completely general terms, to which my answer is the principle of legality, but they then go on to say in paragraph 31: "Clause 1 is also in very clear terms: once the right to be a member of your Lordships' House by virtue of a hereditary peerage has been abolished (from the end of the Session in which the Bill is enacted), no hereditary peer will be a member of your Lordships' House (unless made a life peer or excepted under clause 2). This means that no such hereditary peer will, from that time, be entitled to participate in the deliberations and votes of your Lordships' House."

  So at that stage it is said that that is clear. At paragraph 31, at page 35, it says: "Further, clause 7(2), together with clause 7(1), confirms that all hereditary peers who receive or have received a writ of summons issued for the present Parliament (whether that writ of summons has been answered to or not) will cease to be entitled to sit in your Lordships' House .... " So what is at any rate thought to be very clear, nonetheless at this juncture appears to require confirmation, and then finally it is described now not as confirmed in paragraph 34, just further down the page, but as a provision which is supplementary to the operation of clause 1. Either clause 1 is effective in itself or, we respectfully submit, it is not. The moment the Government choose to introduce amendments that relate to clause 1, one is entitled, in our respectful submission obliged, to consider, as it were, the full package.

  Then may I take your Lordships to the way in which we deal with this and take your Lordships back to our written submission at paragraph 12. Your Lordship will see that I have somewhat re-ordered the order so that the fact that we are retreating is, as it were, in order to facilitate, rather than to go back to square one.

  Perhaps I could take your Lordships to 11 rather than 12.

  CHAIRMAN: Do not forget, we have read it more than once.

  MR BELOFF: Your Lordships will see that we accept that clause 1 has a general objective, but we point out that it does not deal with the matter. It deals with the future composition of the House associated with clause 2 but says nothing about the means by which or the time by which such reformed composition is to have effect. So that is why, we would respectfully submit, it was indeed necessary to have supplementary provisions.

  Then we say that the question of the how and the when is dealt with in clause 7, described as "Commencement and Transitional" and we say that it states the mechanism and timing of the removal of the hereditary element. The effect of clause 7(1) is that it comes into force at the end of the session in which it has passed the Bill. Thereafter no one is entitled to call for a writ of summons in right of an hereditary peerage, unless excepted under clause 2. We use the metaphor the drawbridge is pulled up at that time.

  At clause 2 we return to the heart of the matter, i.e. writs issued for this parliament shall "not have effect after" the relevant session, and we say that the provision can only impact on those writs which have not yet had effect. So on its face it inhibits for the future and it is not trying to cancel for the past and we say that legitimately it should be construed as preventing any hereditary peer who has received a writ but not answered it from taking his seat after the end of the session, that is unless he is a Weatherill peer.

  Since the Bill must be read as a coherent whole, we submit—and this is the point that I made in answer to my Lord, Lord Nicholls—that clause 7(2) must be construed as explanatory of and consistent with clause 1. So we say, looking at it in that way, clause 1 excludes peers who have taken their seats from future Parliaments. The argument does not tend to the conclusion that the hereditary element, Weatherill peers aside, is not going to be abolished in due course, the question is from when. It will also exclude from this Parliament any peer who has not received a writ of summons before the end of the session and clause 7(2) prevents any peer who has received a writ of summons but has not taken his seat before the end of this session from thereafter becoming a member of this House, unless he is a Weatherill peer. We say there is no reason not to give it this more limited construction because in effect it is a way of achieving, albeit in stages, the overall objective of the Bill as set out in its long title, the abolition of the hereditary element in the House of Lords.

  At paragraph 50 we point out that if we have established to your Lordships' satisfaction what we say are the hallowed incidents of a writ of summons and the different consequences attached to the issue of a writ on the one hand and the obedience thereto on the other, then that must, in the way in which these matters are debated, be taken notionally to have been in the mind of the draftsman and recognised in the precise language that was deployed. Clause 7(2) does not adopt any clear formula to eliminate the distinction between the effect of a writ of summons on the one hand and the duty to remain in parliament after obedience thereto on the other.

  CHAIRMAN: You say in paragraph 11 that "a purposive approach leads to the construction that in consequence of clause 1, no one shall be entitled to a writ of summons ... nor be obliged to answer one." The result of this reference depends on what we think of clause 7(2)).

  MR BELOFF: Yes, my Lord.

  CHAIRMAN: At the end of the day, the rest is peripheral, background—no, that is too strong, but it is 7(2) which is the heart.

  MR BELOFF: Yes, but you have to understand what lies beyond 7(2) in terms of constitutional law in order to give any meaning to it.

  LORD NICHOLLS OF BIRKENHEAD: Is it right that it all depends on whether or not, after a writ has been issued and acted upon, it continues to have any effect?


  LORD NICHOLLS OF BIRKENHEAD: It is just that narrow point? You say it does not and the Government say it does.

  MR BELOFF: Absolutely so. We say it has exhausted its effect once it is returned to. They say it colours everything that happens after it has been issued.

  LORD NICHOLLS OF BIRKENHEAD: So if after this Bill becomes law, if it does become law, in the next session a member is asked, "What right do you have to sit here?", I understand the answer of the hereditary peer would be, according to Mr Lofthouse, "By virtue of a writ of summons" and the Government would then say to him, "Oh, you cannot rely on that because that writ of summons no longer has any effect", and you say, "Well that is now (functus officio)", to use a language we are no longer allowed to use? It is that narrow point, is it not?

  MR BELOFF: Yes. Your Lordship attributed an analysis to Mr Lofthouse. I think the way that he put it on Lord Mayhew's behalf is that if the question were put to a hereditary peer after the enactment of this Bill in the form in which it presently is and not being a Weatherill peer, "By what right do you sit in this House?", he would say, "I received a command from Her Majesty in the form of a writ of summons. I obeyed that command. I made my return to the writ and you are unable to point to anything in the legislation which deprives me of the rights that I derive from having made that return."

  CHAIRMAN: During this Parliament?

  MR BELOFF: Yes. Of course, he would also say "my brother peer who received a writ on the same day but chose not to make a return is the victim of the legislation". It is as short a point as that.

  My Lords, I think we summarise it in paragraph 21, where we say clause 7(2) merely removes effect from writs of summons. The only writs of summons which could still have effect qua evidence of entitlement to sit are those which are unanswered. Writs of summons which are answered are spent as to their effect. As to their effect, we accept that clause 7(2) must be given useful purpose. Otherwise the conventional presumption against redundancy would be affected. It does give us a useful purpose because without it the holder of an unanswered writ would be in doubt. He has the writ, he has the summons: is he still able to, should he still answer it? Clause 7(2) shows that he would not have the right or, indeed, the duty and its very existence indicates that those who draft the legislation are not satisfied that clause 7(1) by itself would prevent a peer in possession of an unanswered writ of summons from being admitted to the House or absolve him from the obligation of coming. Clause 7(2) puts that matter beyond doubt and we say—and this comes back to the principle of legality, the inability of reliance on general words—that there is on the face of the Bill something special about those who received writs to this Parliament. Clauses 1 and 7(1) do not affect them without more, clause 7(2) makes that plain, but by dealing only with those who have not answered their writs it makes it plain, too, that those who have answered are not to be ejected in mid-Parliament.

  LORD HOPE OF CRAIGHEAD: I am puzzled by the element of duty which you say flows from the writ, particularly bearing in mind Parliament's point that right and duty are relative to each other. If one looks at the writ—and I am taking, for example, page 95 in the appendix—there is a command. If I have followed your argument, the command seems to go no further than to attend and to return the writ whereupon the duty is fulfilled, but the command does talk about giving "counsel upon the affairs aforesaid". What I do not understand is why the writ should not have a continuing effect at least as far as the duty is concerned, because the whole point of attendance at the parliament is to offer such advice and assistance as the peer can in dealing with the weighty matters referred to.

  MR BELOFF: My Lord, we respectfully submit that this must be read in the context of the obligation to attend on a particular day and at a particular place. There is no doubt, of course, that if you then obey that command and return the writ you will thereafter be entitled/obliged to treat and to give counsel, but that would be a consequence of obedience to the writ and not merely because of the fact that you received the writ by itself. That is how we put it.

  LORD HOPE OF CRAIGHEAD: It seems a strange construction of the writ of summons. I would have thought that all it is doing is commanding the peer to attend and return the writ. Bearing in mind the wording of both of these two documents, they both seem to be looking at the state of affairs in the country and the need for assistance in Parliament, which I would have thought was a continuing state of affairs.

  MR BELOFF: Yes, but, my Lord, if the return is made as the writ commands the duty thereafter does subsist. Obviously the writ, as I said at an earlier stage, is a necessary pre-condition of the sitting and participation in affairs of the House, but it is not sufficient. You have to make the return to ensure you have either the duty or the entitlement. The language of the writ, in our respectful submission, assists this rather than the reverse together with the gloss and commentary of analysis that has been placed upon it and the jurisprudence—

  CHAIRMAN: I thought the second writ, which is the one issued during the existence of a Parliament, clearly contemplates more than attendance on a day. It does not mention "on a day", it says, "Parliament is sitting and you be personally present ..." That rather suggests that some of us are to stay for the duration of the Parliament.

  MR BELOFF: Yes, the Parliament is no doubt in session at that time, but nonetheless you cannot, without making the formal return, have the subsequent right or duty.

  CHAIRMAN: That does not necessarily limit your obligation to turning up on one day.

  MR BELOFF: No, I would accept in relation to that particular writ that it does not do any advance to my argument that there is a stage in between that cannot be omitted which is the making of a return to the writ which then generates the next stage.

  CHAIRMAN: That does not deal with this particular point. The fact is you have to make a return. If you make a return then you would still have an obligation to stay for the duration of the Parliament.

  MR BELOFF: Yes, but what is the source of your obligation to stay? The Government say it is the issuing of the original writ and we say it is the attendance or return of the writ. Sir William Anson makes the distinction better than we can.

  CHAIRMAN: Most of the other cases are talking about what creates the peerage. It is the return to the writ and getting your name on the Journals of the House which establishes your peerage, not in a sense your obligation to —

  MR BELOFF: That is only because many of the older cases are dealing with what is now an obsolete matter, that is the actual creation of peerages by return to the writ, but they make crystal clear the fact that the mere receipt of the writ is inefficacious without the return to it. We say the analogy is perfect because they are both dealing with writs of summons.

  In relation to Sir William Anson, he is not concerned with the creation of peerages, as your Lordship sees, that occurs in the chapter dealing with the assembling of Parliament. He is quite clear that he is dealing with the right and obligation to sit and participate, not to be created a peer in the first place.

  CHAIRMAN: We shall have to see what Mr Attorney says about that. What is the next point?

  MR BELOFF: I know what he thinks about it. The question is whether he is right in what he thinks.

  Your Lordships pressed me and I accepted the invitation to show your Lordships the form that has been used by the draftsman in removing rights from previous peers and I simply drew your Lordships' attention to the fact that we say that on true analysis they recognise that it is necessary to assault or attack not only the issue but the right to sit and vote which we say is separate from the rights accidental on the issue and we therefore say, in short, that precedent suggests that it is not adequate to do it in the abbreviated way that the Bill seeks to do and we put that point at paragraph 25, which says: "It is submitted that parliament would not so consistently have legislated to deal with both limbs if it were not necessary to the object of excluding a peer. The inclusion of one limb here, and omission of the other, means that the essential parliamentary machinery for ejecting a sitting peer has not been set in place; whatever the Government's intentions, it has not taken steps to implement them."

  At paragraph 26, which he know that your Lordships have read, we add an argument from practicality. We say that it is much more convenient to know, if there is going to be an expulsion in mid-Parliament, who would actually be affected. There is not going to be any debate about whether certain particular individuals are or are not hereditary peers. One will simply know those who have made the returns and those who have made the returns can stay for the duration of Parliament. Those who have not made the returns have still got their writs but they must hang them on the walls of their baronial castle or otherwise.

  At paragraph 27 we round up the submission by stating that this makes good constitutional sense, it creates certainty and of course it does not mean that the large group are going to be without the right of having voted for the Parliament in the last election and no longer have the right to direct participation in the affairs of Parliament for the balance of the Parliament. I will come back to this very briefly when I deal with the point of the European Convention on Human Rights. As your Lordships will have noted from 7(3) and 7(4), there is a contemplation that the conferment of rights of holders of hereditary peerages (excluded now from the House of Lords) to vote at elections in the House of Commons or the European Parliament is going to be the subject of transitional provisions which we say fits nicely with the analysis that we have made, that is that this is actually on objective analysis a staged process and the virtue, therefore, of having 7(3) is that it entitles the Secretary of State to match the conferment of a right to vote upon those people who are at that particular stage deprived of the right to participate. I refer on the one hand to one House and on the other to the other.

  Paragraphs 28 and 29 deal with clauses 4 and clause 2; they are negative propositions. We simply say they do not affect the argument for the reasons we there set out and it is done by potential way of response. I will not trouble your Lordships with them now since you have read them.

  LORD NICHOLLS OF BIRKENHEAD: Clause 7(2) says that the receipt of a writ of summons gives an entitlement to a recipient. On one reading perhaps it entitles the recipient to attend Parliament and to sit and vote throughout that Parliament. Would you accept that?

  MR BELOFF: If that was so.

  LORD NICHOLLS OF BIRKENHEAD: It has to be acted on, of course, but it gives an entitlement to attend and sit and vote throughout the Parliament.

  MR BELOFF: Bracket, if acted upon, close bracket. I can accept that as long as your Lordship does not then say but then the logical conclusion must be that the reference to issue a writ colours the whole—

  LORD NICHOLLS OF BIRKENHEAD: No, no. If that is the scope of the entitlement, why should not 7(2) have the effect of cutting it down?

  MR BELOFF: We say that the entitlement that is derived from the issue of a writ of summons and the receipt of a writ of summons is to make the return and that thereafter any rights that are derived to participation in the affairs of the House are the consequence of that return and, therefore, although the issue of a writ is a sine qua non, it is not a sufficient condition of participation in the affairs of the House and if that be right, merely to attack the rights of those to whom the writs have been issued, it is inadequate to take away the rights of those who have made a return. I do not disguise the fact that it might be possible to seek to construe 7(2) in a manner which said we are cutting it off at source and did not need to do anything thereafter. I respect that that is a possible analysis. It is not one that I accept.

  LORD NICHOLLS OF BIRKENHEAD: Not at source, at mid-stream.

  MR BELOFF: Mid-stream if your Lordship is saying peerage is source, yes.

  LORD NICHOLLS OF BIRKENHEAD: The writs in the ordinary round have all been issued, they were issued in 1997 and with them they carried the entitlement that we have just discussed. There then comes along a statute that says, in the middle of Parliament, they are not going to have that effect, they are only going to have effect until the end of the present session. Can you help me on that?

  MR BELOFF: If one pursues the riverine metaphor it may be helpful, my Lord. I would suggest that the interposition of the return is equivalent to a lock in the canal. In other words, if you start off again thereafter—that is the way I am putting it. I do not think it is adequate as far as the Government do, but it all started with the writ and therefore to attack the issuing of the writ inevitably involves attacking everything thereafter. That is only if the rights that they are seeking to attack, the right to participate membership, depends only on the writ. If it depends upon the writ plus they must attack the writ plus. They have not done so.

  LORD NICHOLLS OF BIRKENHEAD: Thank you very much. I detained you. You were about to turn to human rights.

  CHAIRMAN: I think this is all terribly relevant to what we were saying earlier about the wording of the two writs. The writs really do intend that members of the House should stay in place during the Parliament.

  MR BELOFF: Yes, but, my Lord, nonetheless, the form of the writs has been considered over the centuries and the necessity of the return as a discrete intervening act has been well recognised and there is nothing in the form of the writs that detracts, we would submit, from that.

  My learned junior, who is always conscious of my omissions, suggests that your Lordships have not seen sufficient of what I call the deprivation legislation, but I think I did show to your Lordships the Appellate Jurisdiction Act, I think we looked at the Peerage Act and I think we have looked at the Bankruptcy Act and I think that gives your Lordship a flavour of what we call the double-barrelled element. The others are merely adding weight—

  CHAIRMAN: If he blames you for omitting something then you can blame me because I am discouraging you from going any further.

  MR BELOFF: And your Lordship is in no doubt that that is precisely what I shall do.

  The European Convention on Human Rights I can take relatively shortly. There is an interesting stance taken in the Government's case at 10(5), page 25, where they say with theoretical force that legislation in this country may be interpreted in a different way by a court considering before 2 October 2000 or after. That, my Lord, we accept, but we do not understand and we trust that on Lord Mayhew's behalf it is not the position that it is seriously being contended that this House ought to pass legislation of this character offending against the European Convention on Human Rights and in breach of international obligations to which Her Majesty's Government are party. That is the first point. Secondly, we draw attention to the fact that in accordance with the modern practice, the Leader of the House has made a statement which your Lordships see at page 53 of the bundle, to the effect that the provisions of the House of Lords Bill are compatible with the Convention rights. So we are going to invite your Lordships to consider this on the basis that, if we can establish a Convention is otherwise relevant, your Lordships should test the propriety of what is proposed in legal terms by reference to its precepts. My Lord, what is the approach that one takes?

  The penultimate authority to which I will refer your Lordships is the ex parte Brind case in volume iii, tab 47. The controversial issue at the time was whether or not there should be live broadcasts with suspected terrorists. It is Lord Bridge of Harwich giving the leading speech in your Lordships' House in the Appellate Committee. It is at pages 747 to 748, page 812 to 813 of the bound volume. I read no more than two sentences, against letter H: "But it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it." Your Lordships may, having regard to the lateness of the hour, just care to note that the Court of Appeal, at any rate, has already suggested that one should show peculiar sensitivity to the imperatives of the Convention now it is on the Statute Book although not yet in force. The reference, perhaps just for any note your Lordships care to take, is in a case dealing with wrongful detention, a case called ex parte Evans, which is 1999, the second volume of The Weekly Law Reports, 103 at page 109 and 117 in the judgment of Lord Woolf, the Master of the Rolls.

  With that I turn back to the way in which we put the matter in our case by firstly, I think, taking your Lordships to the jurisprudence in the Convention which I believe we have summarised accurately. Are your Lordships anxious that I conclude today?

  CHAIRMAN: I think it would be very convenient if we can because we have another reference to follow after this one.

  MR BELOFF: I understand, in which case I shall do my very best. I think the best way of dealing with it is this. I have given to your Lordships the references in paragraph 31 to the Articles of the Convention. Again for your Lordships' marginal note, if you wish to study them at your leisure, it is bundle iv and tab 66. I have given your Lordships a reference to three of the authorities in the European Court of Human Rights that bear upon these particular provisions. The Matthieu, Mohin and Clefayt case is at volume iii, tab 45. The case of W, X, Y and Z v. Belgium, which is referred to over the page at page 18, is at tab 44 of volume iii. Gitonas v. Greece referred to at the end of paragraph 32 is tab 3, page 50; and Matthews v. United Kingdom, which was a recent case involving the inability of citizens of Gibraltar to vote in European elections, is at tab 4 at page 54. The other passage of Evans I wish to refer to is at 115, between letters C and D.

  We say that the analysis of the two Articles that we have cited is accurately set out in paragraph 32 and we have given your Lordships the reference to the paragraphs from the Belgian case which support those propositions. The Article gives rise to individual rights. The nature of the rights enshrined in Article 3 includes the right to vote and the right to stand for election to the legislature. Any conditions which limit the right must not curtail the rights in question to such an extent as to impair their essence: they must be imposed in pursuit of a legitimate aim and must not apply disproportionate means. Such conditions must not thwart the free expression of the opinion of the people in the choice of the legislature and must protect the principle of equality of all treatment of citizens in the exercise of their right to vote and the right to stand for election.

  One of the factors that has been held in the Greek case that we referred to, Gitonas, as providing an appropriate reason for denial of rights is the independence of members of Parliament. This bore upon cases where persons holding certain public office positions were disabled from standing for office or freedom of choice of electors. Neither of those two do we say are relevant in this particular instance. The only passage I would like to show your Lordships is just the most recent case, the Gibraltar case just three paragraphs from that in bundle iv, tab 54 because this is, as it were, state of the art jurisprudence. I would like your Lordships just to look at page 1079A and two paragraphs on that page. It says at 63: "The Court recalls that the rights set out in Article 3 of Protocol No.1 are not absolute, but may be subject to limitations", and then they set out the propositions that we have set out at paragraph 32. At 64 it says: "The Court makes it clear at the outset that the choice of electoral system by which the free expression of the opinion of the people in the choice of the legislature is ensured—whether it be based on proportional representation, the `first-past-the-post' system or some other arrangement—is a matter in which the State enjoys a wide margin of appreciation. However, in the present case the applicant, as a resident of Gibraltar, was completely denied any opportunity to express her opinion in the choice of the members of the European Parliament. The position is not analogous to that of persons who are unable to take part in elections because they live outside the jurisdiction, as such individuals have weakened the link between themselves and the jurisdiction."

  We respectfully submit, and I go back to the point that I made at the outset, that for this group of peers, however large it is, which is the area of dispute between the Government and ourselves, they have effectively lost their rights. They did not enjoy rights to elect the present legislature because they had the balancing right to participate directly in the affairs of the House. If that is taken away from them for the balance of this Parliament then they are completely disenfranchised in the sense recognised by the European Court of Human Rights and that is a reason, we respectfully submit, for adopting a construction, if it is otherwise available, that minimises the dimensions of that group, i.e. limits it to those who have not returned the writ that has been issued to it rather than take the Government's enlarged submission that it applies to all to whom a writ has been issued whether they have made a return or not.

  The last point we would make is that that construction is fortified if one looks at the face of the Bill in terms of the right to elect members of the House of Commons or, as is said curiously in the European Parliament, the powers vested in the Secretary of State to make those transitional provisions. We make two points on that. Firstly, one trusts that this is simply the result of an unconscious ignorance of the status quo. Hereditary peers currently enjoy rights to vote in European elections. As we have said, it is the European Parliamentary Elections Act 1978, Schedule 1, paragraph 2(1). Although I hope that this was not intended on Lord Mayhew's behalf, the only sense on the face of that provision is to confer upon the Secretary of State to take away a right that is already enjoyed, but putting that on one side, what has not been done in respect of rights to vote for the future to the House of Commons by elections, if one happens to be in an appropriate constituency, it has not been given right away to all those persons who no longer have a right to participate in the affairs of the House, it is being given to a member of the executive to have the power to determine when such rights should be conferred. We respectfully submit that it is wholly inappropriate, if there is to be any kind of compensation in terms of disenfranchisement in convention terms, that it should be given to a member of the executive to determine when those rights should be enjoyed rather than to confer them directly by primary legislation. This, of course, is an ancillary point because the right to vote for the future will only be a mitigating factor for that small number of persons who will enjoy it in appropriate constituencies. Our more fundamental point I return to is that there has been a rupture of the bargain that was originally struck, you cannot vote for the Commons because you can participate in the affairs of the Lords and this group would be unique in lacking both for the duration of this Parliament and the European Convention, as interpreted, suggests that one should not, unless compelled to do so for good and sufficient reasons, of which there is none, put citizens of a Member State in that predicament.

  My Lords, subject to any questions that your Lordships have, I am four minutes before the bell.

  CHAIRMAN: We are very grateful for your help. Mr Lofthouse, do you wish to make any points?

  MR LOFTHOUSE: My Lords, this may not be the moment to do it. I do not know whether, if there were some matters that perhaps I might wish to raise, your Lordships might hear me on Monday. It may be that my learned friend—

  CHAIRMAN: I would rather you did it now. It may be that four minutes is not long enough.

  MR LOFTHOUSE: It would be too short.

  CHAIRMAN: We must keep it fairly short on Monday. Mr Beloff has gone through an enormous amount of material.

  MR LOFTHOUSE: My Lord, I am not saying, I may well be told not to say something, but I wanted to keep the option open, that is all.

  CHAIRMAN: We shall look carefully at Mr Beloff as we leave! We will adjourn until 10.30 on Monday.

  Adjourned until Monday next at half past Ten o'clock

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