Examination of Witnesses|
MONDAY 18 OCTOBER 1999
CHAIRMAN: Mr Lofthouse, thank you very much
for this note which you have prepared, which will assist us greatly.
Not all of us have had the opportunity of reading it, of course,
because we only got it very shortly. That is not a criticism at
all. So perhaps you could take us through it, realising we are
still reading at the same time.
MR LOFTHOUSE: My Lord, indeed so. The purpose,
as your Lordships see, of the note and, indeed, I am following
it, if I may, is to pick up and deal with some points that appeared
to be troubling some of your Lordships the other day.The first
essential, I suggest, to understand in approaching this case is
that a writ of summons to parliament is a formal document which
has a precise function and which has a function and an identity
and a nature which can be identified only by historical and legal
analysis. Its effect is by now as good as a term of art and that
is the term the Government has chosen to use. It is unsafe, when
approaching a question about a writ of summons, to rely upon modern
linguistic methods or methods of construction appropriate to a
modern document because it has, as I say, an identified function
and nature. So, for example, words such as "You will be personally
present at our Parliament", if I wrote them in a letter today,
might mean you will be there throughout, but when they are written
in a writ of medieval original they have a meaning which can be
ascertained from the cases and so forth that means, "You
make an appearance on one occasion. When I have got you there
I shall give you my further orders." The rationale for that
is that to get you there is all a king needs. Once you are in
the king's presence he can give you his further orders. You are
bound to come at his order and when you come you are bound to
CHAIRMAN: It means "present yourself"
rather than "be present at", is that what you are saying?
MR LOFTHOUSE: My Lord, yes. You must be present.
He tells you to be present, you come and you are in the parliament.
When you are in the parliament you will be in the king's presence.
The king is always either personally or legally present in parliament.
If he were not it would not be a parliament.
My Lords, going, if I may, as briefly as I may,
through the notes, page 1 I have already dealt with. On page 2:
"Each parliament called by a sovereign is separate. This
case is solely about this Parliament, the one called in
1997. The central issue is whether this Bill achieves the remarkable
effect of removing from a legislature in the free world a substantial
number of its members."
My Lords, I think the last time that a group
of people was settled but was actually thrown out was probably
the Welsh Church lords spiritual in about 1914, and there are
previous examples of it, as you know and as we have provided.
"At the beginning of a parliament, or later
arrival, a person summoned takes his seat"as I have
said"and [upon that] is incorporated in the parliament.
Thereafter his rights and duties arise from"or are
imposed by, I would say"the Sovereign's legal presence
.... " I say that because again some of your Lordships may
have been troubled by the idea that if you are summoned and parliament
is there for giving the king advice, what is the point of just
arriving? What is the point of the writ? The answer is, as you
will see as I go through the law, there are other methods that
keep you there, other duties that bite once you come, and they
are discrete duties and it is not a matter of antiquarian interest.
LORD HOPE OF CRAIGHEAD: Mr Lofthouse, do you
acceptand I am looking at the second sentence, paragraph
3that the rights and duties are correlative with each other?
In other words, so long as the duty subsists there is a right
to attend and vice-versa, there is a right to attend in order
to perform the duty?
MR LOFTHOUSE: My Lord, yes, they go hand-in-hand.
At one stage in history people regarded it as purely a burden
to come to parliament. It took quite a while for people to start
regarding it as a right. Early cases are largely concerned with
people trying to avoid coming to parliament. Therefore, when one
realises that one is dealing in this case with lords of parliament
who have been sworn in this House and who are not alleged to have
committed any fault, are to be ejected, it is said, without their
consent, however appropriateand it is not a matter for
this Committeein policy terms that may be, it is an enormous
step which is being taken and one for which one would expect the
right language to be used, and that is really the nub, of course.
If it is the will of parliament it can be expressed clearly, and
if it is the will of parliament and is so great a step it must
be expressed clearly.
LORD CAMPBELL OF ALLOWAY: Could I ask a question.
As to this question of construction, which goes to the root of
the submission, looking at 18 and 20 in particular of your case,
do you accept that the general writ of summons at page 95, which
on sitting after presentation, as you probably know, is either
returned to the peer if he asks it or is kept in the Record office
and grants entitlement to attend and also imposes obligations
undertaken to the monarch as to the exercise of that entitlement
until the end of parliamentdoes the grant of such entitlementit
is in a way the question asked by Lord Hope and I did not quite
follow the answer and I know it is my faultdo you accept
that the grant of that entitlement, correlates with the imposed
personal undertaking to the monarch and can one, as a matter of
construction, whether ancient or modern (to take your point),
segregate the efficacy of the writ of summons as between grant
and the imposed undertaking? Apart from abrogation by statuteI
know that the monarch gave Her assent, prerogative on Second Reading,
not Third Reading, and this is why I personally find it difficult
to understandhow can the efficacy of the writ of summons
be spent before the end of parliament, apart from being abrogated
MR LOFTHOUSE: My Lord, it depends upon what
the writ of summons is for. The writ of summons is merely to secure
the initial coming to parliament by the lord. Once he has come
he is then under duties. When he has come and perfected his title
he comes under duties as a lord of parliament, duties that are
well-known, duties that have sometimes been expressly made clear.
One of those is the duty not to depart but the writ gets him there
and he hands the writ in. Its only effect is to get him there.
The king needs no more; the medieval monarch would have needed
no more than to get you there.
CHAIRMAN: I find it very difficult to read that
into the form of writ which is issued during the existence of
MR LOFTHOUSE: My Lord, I will deal with that,
if I may, I hope not impertinently, in turn, but may I preface
it by this, that it was to address that very point that I made
my opening remarks, which are that it is a very unsure guide to
look at modern words to understand that writ. It has a precise
function, a very precise function, and there is no difference
in effect between what I have termed the general writ and what
is the special writ.
CHAIRMAN: In effect, it works both ways.
MR LOFTHOUSE: My Lord, of course it can if it
be established that I
CHAIRMAN: If you come unstuck on the second
point and they must be read together, then you come unstuck on
the other. On the other hand, if you succeed on the first, the
second may follow.
MR LOFTHOUSE: My Lord, yes, it may mean that.
I am not actually in that rather deplorable case. I am able to
make my case on both writs individually and then draw help from
one to the other.
My Lords, "4. The Sovereign may call anyone
She pleases to parliament. Once they have answered, and been admitted,
no question of preliminary qualification arises." There is,
as I come on to examine, a series of qualifications that can get
one in. At any stage one may trip up and not be admitted but once
admitted, one is a lord of that parliament and isand again
if I may use the words that I may use in this submission, not
elsewhere - proprio vigore, one who sits qua lord of parliament,
and if I may use another term, the evidence, and it might be the
writ that leads to admission, the peerage that leads to the writ,
the evidence passes merges in the judgment and can no longer itself
be relied upon or set aside. One must attack the judgment, the
admission to the House, and that is the very thing this Bill does
not even try to do.
My Lords, I then, I hope not impertinently,
put it in the form of questions and answers which at least clarify
my own mind on these things. It is really right, as my Lord Slynn
of Hadley said the other day, looking at the translation of some
materials from Coke
CHAIRMAN: Forgive me, just to clear up this
other point, I thought from your opinions and from what Mr Beloff
was saying, that if a peer is asked, "Under what right are
you sitting here in the House of Lords, voting and speaking?"
it would be wrong of him to say, "Because I am a peer."
He would say, "Because I have received a writ of summons.
I have answered the writ of summons." I do not see why that
only applies to day one. Why does it not apply to day 10 or day
30? "Why are you sitting here? Why are you speaking?"
"I have answered a writ of summons."
MR LOFTHOUSE: The answer is, "Because I
answered a writ of summons"answered; that is to say,
the writ of summons has gone. "I am here in parliament and
I have obeyed the command of the Sovereign in the House not to
depart, to stay and to give my counsel, but the writ I had has
gone in." It has, I think, sometimes had a line put across
it and it has been stored in the Crown Office in Chancery, it
is dead. My Lord, whether one can use the words "writ of
summons" in effect, the people who chose to use that terminology,
the first people to use what the noble Lord the Lord Chancellor
called "arcane peerage law", were the Government in
their bill. They have chosen to use a term of art, the effect
of a writ of summons, and, my Lord, they got it wrong.
LORD NICHOLLS OF BIRKENHEAD: Mr Lofthouse, does
a writ, in your submission, convey rights as well as duties?
MR LOFTHOUSE: My Lord, I think I can phrase
it exactly in this way: it confers a right and a duty to be admitted
to this House.
LORD NICHOLLS OF BIRKENHEAD: A right to be admitted?
MR LOFTHOUSE: A right to be admitted. It is
the way Anson used it. If I am wrong, I am wrong with Anson.
LORD NICHOLLS OF BIRKENHEAD: Your case hinges
on saying a right to be admitted is spent completely once admitted?
MR LOFTHOUSE: My Lord, yes, as one takes the
oath, and as Anson puts it, one's title is perfected and the evidence,
as I look at it, transit in rem judicatam, one has then
acquired a settled membership, if you like, lordship, if you like,
but you are in. It is terribly easy to get that right taken away.
You only have to say in the bill "and shall no longer have
the right to sit and vote in the House of Lords," half a
dozen words, and we would not be here.
LORD HOPE OF CRAIGHEAD: I thought that in answer
to my first question you accepted that the right subsisted so
long as the duty subsisted, that they were counterparts of each
other, and so the key may well be what one makes of the command.
Is that not the right way to look at it?
MR LOFTHOUSE: My Lord, I agree that the rights
and the duties are what is called correlative, but as to
the duty and the right, I did not, I hope, say anything other
than that the right and the duty are to come and to be admitted.
That is the only duty that derives under the writ.
LORD HOPE OF CRAIGHEAD: May I ask one other
question. I note from Anson, who I think was said to be a reliable
authority in this field, that the nature of parliament has changed
very substantially since medieval times and for obvious reasons
parliament now has to sit more or less continuously. I rather
understand from your presentation that you are saying to us we
do not have regard to that, that we have to construe the writ
in the light of medieval conditions, and myself I find that difficult
to understand. I do not see why one should not construe the writ
which is in use today in the light of what we know about parliament
today and the way in which it conducts its affairs.
MR LOFTHOUSE: My Lord, let me answer, if I may,
in this way. The principal change one notices is that parliament
now sits almost continuously, that is to say, there is a parliament
sitting most of the time, but one change that has not taken place
is the fact that each parliament is a separate parliament. If
I were better with my memory I could tell you which parliament
of Her Majesty's reign this is, but at the beginning of your Lordships'
Journals for this hearing they say, "Lords' Journals for
the X session of the such-a-thing parliament of the Reign of Her
Majesty Queen Elizabeth II." You are sitting, in fact, in
point of theory and practice, in a separate parliament from the
one in which your Lordships sat before 1997. This is a separate
parliament just as much as the Salisbury or Lincoln Parliaments
in the Middle Ages were separate. The fact that by statuteand
it is only by statuteit is provided for parliamentary regularity
(if I can put it that way) is nothing to the point. That change,
which is the fundamental one, you might think, you might say,
"Why do we need a writ of summons?"
CHAIRMAN: The word "parliament" has
to be construed to mean the parliament we know today. We do not
have to look back and say, "What would have been a medieval
parliament and it is only that body or that group of people who
can be included in the writ." It must mean the modern parliament.
MR LOFTHOUSE: My Lord, the parliament we have
now in all its essential composition is the same parliament as
the parliament of the Middle Ages. I would be grateful if anybody
would put to me, because it would be helpful to me to be able
to deal with this, any change in the composition or practice of
parliament that might render the formulation of or construction
of the writ
CHAIRMAN: If I could take us to the most obvious
example, there were not any life peers in a medieval parliament.
MR LOFTHOUSE: My Lord, that is a matter of contention.
CHAIRMAN: There were not a substantial number.
MR LOFTHOUSE: My Lord, again what is the difference
between a life peer and an hereditary peer, rhetorically? One
has a life peer, he still needs a writ, he still sits in parliament.
How does that affect the construction of his writ of summons?
CHAIRMAN: It is the construction of the word
MR LOFTHOUSE: My Lord, parliament is the same,
precisely. There are still people who are lords of parliament.
This is very important because there is a danger of forgetting
that the monarch has chosen, and there has been no change in the
law, that a writ of summons has continued to be used as the instrument
for getting people into parliament. Not a whit has changed in
the last 700 years as to the need for or use of that document.
As I say, I would be grateful to deal with any distinction that
any noble Lord or, indeed, any of my learned friends could put
to me that would affect that construction. I suggest there is
CHAIRMAN: Thank you. We have your argument on
that. Let us move on to the next point, shall we?
LORD NICHOLLS OF BIRKENHEAD: At some stage I
would be grateful for your best authority or citations or whatever
in support of the proposition that a writ confers no greater right
than to attend and be admitted and then it is spent, at some convenient
MR LOFTHOUSE: My Lord, yes. I hope that in a
very short space of time I shall be able to demonstrate to your
Lordships that that is indeed so.
CHAIRMAN: That is a critical question so we
must get to it fairly soon.
MR LOFTHOUSE: My Lord, yes. I am aware I am
wandering a little.
CHAIRMAN: That is not your fault, it is because
of the questions you have been asked.
MR LOFTHOUSE: No. I will whiz along, if I may.
Question 1 and Answer 1 I have just been dealing with with my
Lord Lord Slynn of Hadley. Perhaps I may now jump on to No. 2,
that is, the structure, and the relevant law now is the law then
for the points we are dealing with. Then "clear words are
necessary. Is not clause 1 clear enough?" and I say, "No-one
shall be a member of the House of Lords by virtue of an hereditary
peerage," and I come back, as it were, to the matter that
sometimes people think I have abandoned but I have not, which
is that nobody knows which is the qualification for a writ.
My Lords, certain types of hereditary peerage
qualify certain types of people to demand a writ of summons to
parliament. It is worth bearing it in mind that there are hereditary
peers who have no right to demand a writ, most notably Irish peers.
There are certain people who hold otherwise qualifying peerages
who have no right to demand a writaliens and so on and
so forth. So it is a qualification. What I call it at the top
of page 4 is that a peerage of a certain type is thus a sufficient,
but not a necessary, qualification to receive a writ of summons.
I hope I will be forgiven the allusion to my Lord Lord Cranborne,
but it is a very helpful illustration. A writ granted to someone
who has no right to it will give the recipient the right of admission.
There seemed at one stage a little doubt on the Government's side
as to whether they knew that this is still the law. My Lord Cranborne
was not a peer, had no right to call for a writ, but he received
one and it was effective to admit him. My Lords, for interest's
sake, the writ and warrant are obtained by leave of the Crown
Office in Chancery.
LORD STRABOLGI: Mr Lofthouse, could I ask you
this. Lord Cranborne, as I understand itI hope he will
forgive me for mentioning itreceived a writ of acceleration
for which there are precedents throughout the ages right back
to the Middle Ages. It did establish an hereditary peerage. Of
course, there have been cases where the son has received a writ
of acceleration, he has died before his father and the grandson
has then succeeded to that peerage.
MR LOFTHOUSE: Your Lordship has the Clifford
of Launsburgh case in mind perhaps?
LORD STRABOLGI: Yes.
MR LOFTHOUSE: I think that is the only case.
LORD STRABOLGI: There have been several over
the centuries, but these so-called writs of acceleration have
been given for the heirs of senior peerages. They do not go right
down to barons but I think they include dukes, marquesses and
earls. So you say that Viscount Cranborne was not a peer, which
is true, and had no right to call for a writ of summons. Had he
not a right to call for this writ under the writ of acceleration
procedure, on which I think there have been about 90 cases during
MR LOFTHOUSE: It may be about 90. Your Lordship
has in mind the appendix in the Complete Peerage, which is very
helpful about it. But if your Lordship, for example, had two baronies,
an older son might be given it. One would need to know the qualifying
peerage but the distinction is this: my Lord Lord Cranborne has
no right to a writ. He was a person upon whom the Monarch could
confer a writ, but my Lord, there are many people upon whom Her
Majesty could confer a writ in acceleration but She should not
and if She received a letter from them to suggest that She does,
they would receive a most gracious but slightly dusty response.
They have no right. If your Lordship were not sent a writ to parliament,
your Lordship would have a right to it. My Lord Cranborne had
no right. The interesting thing is, your Lordship mentioned his
writ in acceleration. That is merely peerage lawyers' shorthand.
If you look at the writ, it is precisely the same as the writ
your Lordship received to parliament.
LORD STRABOLGI: Yes, but it is given in advance
during the father's lifetime.
MR LOFTHOUSE: It is given in advance but, my
Lord, it is precisely the same form of writ. The only importance
of calling it a writ in acceleration is that it prevents anybody
coming along in many years' time trying to say there was a further
barony created by writ when my Lord Lord Cranborne took his seat
in 1992, to show it was the same peerage. We call it a writ in
acceleration in those terms but in all other respects it is a
perfectly ordinary writ. He had no right to it, he got it, and
he gets into the House, and, my Lord, it is very important to
understand that. A peerage pre-existing in oneself is a sufficient
but not a necessary qualification for a writ of summons and it
is only at the stage of seeking admission to parliament that one
is right to make a challenge. You have seen it in the Wensleydale
caseI am sure I do not need to take your Lordships to itwhere
the Lord Chancellor there was saying, "You have to admit
Lord Wensleydale who came with a life peerage patent because he
has got a writ of summons. Never mind his patent, he has a writ
of summons," and the lords tried to prevent the admission
of Lord Wensleydale but they accepted that had they let him in
there would have been nothing they could do about it.
VISCOUNT CRANBORNE: I wonder whether I could
ask a question because it does seem to me to be relevant, since
you were kind enough to use me as an example. I was always under
the impression that because I had a writ in acceleration I was
not an hereditary peer because my son, in spite of the example
you gave, in the event of my dying before my father, under the
existing law would not be able to inherit my effectively life
peerage, even though I got it by a rather arcane route. This,
of course, makes me think that the Government is wrong when it
says that I am, in effect, an hereditary peer. I do not believe
that to be so and I have always assumed that the proof of that
was that I had been given this writ, the so-called, in shorthand,
writ of acceleration, which, of course, makes it very difficult,
in parentheses, for me to stand for this rather curious election
compromise because I do not think actually I am an hereditary
peer; I am effectively a peer for life and, if that is so, I suspect
that that must mean that it is purely by virtue of the writ that
I am here at all.
MR LOFTHOUSE: My Lord, the question as to whether
your Lordship's son will inherit upon your death is an interesting
one. My Lord Strabolgi referred to it. I am aware of one case
which is the Clifford of Launsburgh claim in the seventeenth
century, which is reported without argument from the Committee
for Privileges, where it was allowed that the son, a lord called
in acceleration, died in his father's lifetime. The son did have
a right to a seat in this House. Whether that would be followed
today must be a matter of some grave doubt. There seems no rationale
for it. The other question is whether your Lordship is a peer
as opposed to a lord of parliament, and again there are some authors
who referred to a lord in your Lordship's position being made
a peer, being put among your peers, to the extent to which, being
in the House of Peers, you would be a peer; whether an hereditary
peer must be doubtful.
LORD CAMPBELL OF ALLOWAY: If I may, on the question
of construction, the writ of summons applies equally to life peers
and to hereditary peers. I thought you to say, but I may be wrong,
that we have an ancient construction when applied to hereditary
peers, even if they are a first creation and neither had been
created last year, and a modern construction, the life peer. Do
you have to have the ancient construction right the way throughout
and where, in another realm of jurisprudence, has one had this
sort of situation before? It is new to me.
MR LOFTHOUSE: My Lord, the same construction,
the old construction, applies to both types of peer and it is
significant that when life peerages by statute were first introduced,
the first very nearly by the Appellate Jurisdiction Act 1876,
they were not life at the time, they were for a term of office,
and then by the 1958 Act both statutes took care to confer the
right to a writ of summons upon the peer. It demonstrates in modern
statutes the force of the writ of summons. There was no point
in giving you a peerage without conferring a right to a writ of
summons and they go further, and "sit and vote". They
are not satisfied with one bill; they have two limbs.
CHAIRMAN: I think we have very clearly the point
that to sit in the House you must have a writ and you must answer
the writ. I think Mr Beloff made that crystal clear on Thursday
and I think you have really dealt with the second complete paragraph
on page 4. Could you perhaps go on to the next paragraph at the
bottom of the page.
MR LOFTHOUSE: My Lord, yes. In fact, I have
dealt partly with most of that. If I take the third sentence:
"After that, the title to sit is perfect and lcannot be challenged."
I put Anson and I will go to Anson, if I may, in a moment"The
right/duty can be removed by Act of Parliament, and has been on
occasion, but by precise words [of a sort which are] absent from
this Bill." That is, as you know, none of our case. I say,
with perhaps a little irony: "In a sense para. 37 of the
Government's Case gets it right." I was worried about something
about the word "precondition" used in the Government's
case and it kept worrying me and nagging me and I finally realised
that they were with me, because they were with me in seeing that
there is a precondition. There are preconditions to entryprecondition,
qualification: peerage to writ to sitting, and they have got it
right and they do not know it. And the trail goes thus: "Are
you a qualified person holding a qualifying peerage? If Yes: you
are entitled to a writ. If No, you may yet receive one. (2) Is
your writ returned and admission granted at parliament? If Yes,
then you become a lord of parliament, sitting in the Royal Presence
and at Its Command: you sit by virtue of your lordship of that
parliament." A new status, a discrete status, has been conferred