Examination of Witnesses (continued)|
MONDAY 18 OCTOBER 1999
MR LOFTHOUSE: He deals also with another type
of writ that was the type of writ that gave a person the office
of Chief Justice of the King's Bench, which at one time was conferred
by writ. It is worth bearing in mind perhaps in the light of the
wording of the writ to the Chief Justice of the King's Bench,
what he says about that. Half way down page 104
CHAIRMAN: I remind you we have already read
this, will you please take it shortly.
MR LOFTHOUSE: My Lord, I do apologise. It was
merely my concern on Thursday afternoon that from one or two remarks
your Lordships might appreciate some further help, but you might
CHAIRMAN: You are giving us help but there are
points that your learned leader has gone through in the case and
given us assistance on. Make your point by all means but please
do it concisely.
MR LOFTHOUSE: My Lord, I am only dealing with
the matters which appear even this morning to be causing some
of your Lordships some concern and I wish your Lordships to understand
that the points that are raised against us are wholly without
substance and would not be being made if
CHAIRMAN: I realise only too well that before
we began after reading your papers you think the other side's
case is total nonsense. We have that very clearly in our minds.
MR LOFTHOUSE: My Lord, I am sure the same applies
from them to us. It is that the Chief Justice of King's Bench
is told to apply himself to his job in rather peremptory terms
but Sir Harris Nicolas says that he becomes Chief Justice when
he obeys the writ, that is when he takes the oath. My Lord, the
self-same applies to a Lord of Parliament. You know well the remark
of Lord Lyndhurst in Wensleydale.
The cases that were handed in on Thursday, the
translations from Coke's Institute, I look at them again briefly
if I may, they were not really looked at in any depth on Thursday,
I think possibly because my Lord, Lord Slynn, began by saying
"when was the last time somebody was fined for not attending
Parliament?" My Lord, I am not suggesting anybody should
revive the practice.
CHAIRMAN: It was a question of historical interest.
MR LOFTHOUSE: My aim is to demonstrateI
hope I have done so farthat looking at documents from 1329
or 1555 is not done to interest or amuse, it is done because it
sets out precisely an indication of the law of the constitution
and Parliament which has not changed.
I hope your Lordships have the document. I hope
it is a particularly helpful document.
MR LOFTHOUSE: It contains two cases, one in
the reign of Edward III and one in the reign of Philip and Mary.
It is the third line, in the beginning, John Bishop of Winchester
is brought before the court. Fourth line: "... to answer
the lord king as to why, whereas a prohibition was issued by the
same lord king at the king's parliament recently held at Salisbury
against anyone who had been summoned to the said parliament leaving
it without the king's permission, the same bishop had left the
same parliament without the king's permission while the parliament
was continuing to the manifest contempt of the king and contrary
to the said prohibition of the king..." and the king sues
through his counsel.
The point I make is this man had a writ and
you can see later he had a writ to Parliament. He has come to
Parliament, he has gone away, the king does not sue him for failing
to obey the writ, he sues him for disobeying a command to stay.
Now a writ, why not sue on the writ? The reason
because they knew that the writ had been obeyed. One sees further
down the page, about half way down the page, a sentence beginning
"At which day the said Adam .." this is the king's counsel,
"At which day the said Adam who sues etc, and the same bishop
in person both come. The said Adam says on behalf of the lord
king that whenever it pleases him to hold a parliament for the
benefit of his kingdom he has it summoned where and when he wishes
and also makes a prohibition to those who are present at parliament
that none of them leave contrary to his prohibition without permission.
And if any of them leave contrary to the prohibition etc, to the
king's contempt the king ....".
Then at the foot of the page counsel for the
Bishop of Winchester is reported in the year books as saying:
".. Sir, parliament is an assembly of the peers of the realm
for the profit of the king and people, ..." Forgive me, just
a little above that: ".... John Bishop of Winchester was
arraigned in King's Bench because when he had come to Salisbury
to parliament by summons he had departed without the king's permission."
His counsel says, on the second line "...
so when one of the peers does not come or comes and leaves without
permission ..." My Lords, there is a distinction. Over the
page, in the reign of Philip and Mary, this deals with the Commons
but sets out the law of Parliament as to departing. Half way down,
your Lordships see in square brackets, "... there follows
a list of alleged absentees who had been summoned to the said
parliament and had appeared there and were present there, with
little respect to the said order and prohibition of the lord king
and queen ..." as a prohibition again not to go "...
and with little care or thought for the estate of the governance
of this realm of England subsequently ... contemptuously left
the same parliament without the permission of the said lord king
In those days sometimes plainly an express prohibition
was given. I make the point if the king or anybody else had the
faintest inkling of what we are now told is the law, that the
writ has effect after you have answered it, there is no question
but a medieval or Tudor monarch would have relied upon it and
would not have relied upon some additional prohibition. There
would be no need for the prohibition.
That prohibition, whether given or not, is expressed
in the duties that arise to the sovereign as being in his presence.
One can never leave the sovereign's presence surely without consent
or with the obligations imposed by this House.
My Lord, I do ask your Lordships to consider
those cases. They are central to the issues. I say departing involves
any further non attendance as is perhaps rather too plain to argue.
Running quickly down the authors, Coke, I have
looked at 43 and 44.. In 4 Coke's Institute 10 he says
writs "... tend to the beginning of the parliament".
Tend to the beginning. Why does he say that if we are wrong? Does
it not fit in with return?
CHAIRMAN: Then we get the passage Mr Beloff
and you both say is the best bit.
MR LOFTHOUSE: Cannot do better.
CHAIRMAN: Where can we find that?
MR LOFTHOUSE: It is tab 63, my Lord, in the
CHAIRMAN: I see in your note you say the right
is perfected, it is completed. Does that necessarily follow that
it loses all effect? The right to be there is perfected, it does
not mean it is finished.
MR LOFTHOUSE: My Lord, it is important to lookAnson
deals with thisat how he begins. He begins by saying the
evidence by which members of the House can establish their rights
to membership and he treats a writ as evidence. That is on page
1221.He says, two thirds of the way down the page, "....
There are two things to consider before we come to the declaration
by the King of the objects of summons in the speech from the Throne.
"(a) The first is the evidence by which
the members of the two Houses can establish their rights to membership.
"(b) the second is the perfecting of the
title to sit." Then he sets out the writ used for peers and
then on the right hand page "... perfecting of the title
of a member to discharge the duties of his office...".
LORD WIGODER: Mr Lofthouse, forgive me, for
the benefit of those of us whose page numbers at the bottom are
totally indistinguishable, could you give us the page number at
MR LOFTHOUSE: My Lord, yes, it is 64 and 65,
my Lord. I am sorry, these numbers are very often indistinguishable.
LORD STRABOLGI: Which tab is it?
MR LOFTHOUSE: My Lord, it is 63.
CHAIRMAN: It is perfectly clear, is it, perfects
the title? Does Anson say after that the writ has no effect whatsoever
in clear language?
MR LOFTHOUSE: My Lord, he does not need to.
I tell your Lordship why. He treats it, does he not, on pages
64 and 65, as if one's attendance and arriving in the House is
a submission to judgment. He looks at it as evidence and acquisition,
indeed the word "acquired" is used on page 36 of the
fifth bundle, how the rights are acquired at a later stage of
his book. If it is the evidence by which the title is shown, once
the title is shown, once the title is conferred evidence, is put
in our case, characteristically has no effect after judgment.
If the title is perfected it means there is something, that the
lord is taking his seat then which is unchallengeable.
To put it in a very basic way, it would be wholly
inadmissible for any peer to be askedIf any of your Lordships
now, for example, were asked by a doorkeeper, or by the Lord Chancellor
indeed, "Excuse me, could I see your Writ of Summons, my
Lord". You would say "What do you mean by Writ of Summons,
I handed it when I came". "Oh, well you cannot, where
is your Writ of Summons, you cannot sit here without a Writ of
Summons." You say "It is sitting in the Crown Office
building" "That is no good". If it has an effect
you should keep it, have it in your pocket, always ready in case
the Lord Chancellor decides to issue a writ of supersedens and
you want to do something about it. It has no effect. You have
a perfected title, the evidence, like a cause of action merges
in a judgment, unless thereafter you must attack the judgment
and the judgment is the admission and the admission is final.
The word used by Anson "perfected" could not be stronger,
My Lord, in the fifth bundle at page 36 for
some reason rather later on in his bookAt page 36 of that
MR LOFTHOUSE: Dealing with how you get your
writ. Half way down the page, paragraph six of that, four lines
from the foot of that paragraph "It remains to consider the
process by which the right to sit and vote is acquired ...".
LORD HOPE OF CRAIGHEAD: Which page are we on?
MR LOFTHOUSE: Page 36 of that bundle, my Lord.
CHAIRMAN: Page 229 at the top. Yes?
MR LOFTHOUSE: My Lords, lastly Pike. I shall
not take your Lordships to the passage because I set it out in
my note. It refers to the case I referred to of the Bishop of
Winchester "... after having come to parliament in obedience
to a summons, he had departed without the king's permission..."
Again the distinction.
My Lords, if I may add orally a G. F was authors
and G is the Bill itself. The use in the Bill in clause 7(2) of
the wordwe will have to go to it, it is in the appendixclause
7(2) which is page 57 of the bound volume. "... Any Writ
of Summons ... shall not have effect ...". If there can be
successive continuing effect or effects one would expect to find
the words "or further effect."
The Bill itself has an internal consistency.
It may be the noble and learned lord, the Lord Chancellor, got
it right on 27 April.
I end by saying the weight of royal of said
authority is in our favour. I am not saying, and I am sure we
will hear it, particularly from a Select Committeeone can
deal with it in reply if it is raisedone can cherry pick
from a select committee in 1956 and if any cherries are picked,
the biggest cherries are ours. If any cherries are picked from
that and if any of those are thought by your Lordships to have
any sufficient weight to meet the volume of authority we have
produced on this point then we will deal with those cherries in
short order in reply if we may.
My Lord, I look at question five
CHAIRMAN: You have referred us to it.
MR LOFTHOUSE: Your Lordships have been through
CHAIRMAN: We have been through it.
MR LOFTHOUSE: Can I mention it, my Lords, in
this way, to say that of course the matter must be decided according
to settled law but it is settled as set out in those authorities.
I invite your Lordships to take care not to be over persuaded
by Government arguments which may tend to a serious error of law
and historical accuracy, which will be a great pity for this House
to produce, persuaded by my learned friends on the other side,
to produce a document that did not reflect historical and legal
status of a Writ ofSummons
CHAIRMAN: You may be assured that we are all
very conscious of the importance of the case constitutionally
and no less from the point of view of individuals concerned.
MR LOFTHOUSE: My Lord, I am very grateful. My
Lords, lastly because of that, as your Lordship will know, bearing
in mind that whenever anywhere in the English speaking world any
Government, good or bad, seeks, if it does, to expel from a sitting
legislature its members, sometimes perhaps in less happy circumstances
than this, they will look to see what approaches to language this
House took on this occasion. Sometimes a beleaguered judiciary
in another country will look for help to this Committee and I
invite this Committee to approach the task demanding clear words.
It can be done. A small amendment would do it. I can draft it
for them myself within the next ten minutes. A small amendment,
if it is the will of the House, my Lords, they will pass it, if
it is the will of Parliament, as they tell us, Parliament will
pass it. Why not do it? Make it clear. The constitution and the
people demand no less. I suggest they deserve no less.
CHAIRMAN: Thank you very much, Mr Lofthouse.
THE ATTORNEY-GENERAL: May it please the Committee.
The issues before the Committee are, despite outward appearance,
of the simplest. My Lords, I think it is convenient if I make
short submissions designed to be simply supplemental to the case
which I know your Lordships have studied.
My Lords, I deal very briefly with a preliminary
point which I suppose I can call the jurisdiction point. My Lords,
in other words, should this Committee be dealing with this matter
at this stage at all? I adhere to the position which I indicated
on Thursday morning. It is not suitable or appropriate at this
stage. We should welcome the Committee's views by way of indication
as to future practice if that is thought to be appropriate but,
of course, as I said on Thursday morning, I am perfectly content
to submit on the substantive question.
LORD NICHOLLS OF BIRKENHEAD: Attorney-General,
can you just tell me on one important aspect of thisjust
as an assumptionif the Bill were enacted in its present
form and in the next session a member of the House as now constituted
but according to the Government's intention no longer entitled
to sit in the next session turned up asserting a claim to be entitled
to sit, is that an issue that will be decided by the House or
by a court of law?
THE ATTORNEY-GENERAL: My Lords, by the House.
LORD NICHOLLS OF BIRKENHEAD: Exclusively?
THE ATTORNEY-GENERAL: I believe so.
LORD NICHOLLS OF BIRKENHEAD: Despite that being
a question of interpretation of the statute?
THE ATTORNEY-GENERAL: My Lords, yes, because
the House has the primary, I submit, the sole responsibility,
to decide upon its own membership.
LORD HOPE OF CRAIGHEAD: I am not clear how that
would work. When you say the House, does that mean there would
have to be a vote taken by the House?
THE ATTORNEY-GENERAL: Yes.
LORD HOPE OF CRAIGHEAD: One of the questions
would be who is entitled to sit and vote?
THE ATTORNEY-GENERAL: My Lords, that certainly
would be a further complication, yes.
LORD HOPE OF CRAIGHEAD: It might be saidI
put this forward for your reactiontheir Lordships in this
Committee would be effecting a service in the House's interest
in clarifying the issue which has been raised in a very exceptional
THE ATTORNEY-GENERAL: My Lords, that is undoubtedly
true which is why I thought it better for me to take the stance
that I did immediately on Thursday rather than just saying it
is a point which is capable of being sustained. I do not think
that is the appropriate stance for me to adopt.
I do, however, say this in respect of the questions
put by both your Lordships, that is on the hypothesis that the
present draft Bill is passed unamended. I ought to mention perhaps
by way of assistance that the two clauses relating to the Appointments
Commission and the disqualification of life peers from sitting
on anything to do with the extension of the life of a Parliament
were both introduced against the Government's advice. It is necessary
to bear in mind that this Bill that is presently being looked
at has not even gone through your Lordships' House at this stage.
There may well be attempts to amend at third reading, I do not
know. Then, of course, the Commons have not considered it at all.
It is very, very important to bear in mind,
I think this goes specifically by way of illustration to the question
that my Lord, Lord Wigoder, put, what does "accordingly"
mean. Of course accordingly originally was much further up the
Bill because a number of clauses were not there to intervene.
CHAIRMAN: You have just said that it would have
to be decided by the House largely rather than a court. It seems
very likely that the House would refer it to a Committee for Privileges.
If we do not decide it now we would have to decide if somebody
challenged it next year.
THE ATTORNEY-GENERAL: My Lords, as my Lord,
Lord Nicholls, put the question to me I did detect in my own mind
the necessary supplementary question which your Lordship has put.
My Lords, I still maintain, if I may, that to
provide ad hoc drafting assistance by way of advice on a Bill
that has not gone through even one House of Parliament is an unwise
thing to do. I do not put it any higher than that.
My Lords, I think we have set out our stance
in the Government's case in the pink bound volume and I think
I need do no more than reiterate this is a Bill. What the Committee
is being asked is to give ad hoc advice on a Bill which is actually
not even through one House let alone two.
My Lords, on a number of occasions Mr Lofthouse
this morning referred to various citations and I need to come
to them because they are not indicative, let alone determinative,
of the question. My Lords, I venture to submit that this in fact
is a simple point and it brings itself down to the interrelationship
between clause 1 and clause 7. My Lords, I think my learned friend,
Mr Beloff, made that perfectly plain when my Lord, Lord Nicholls,
put the question to him. It is conceded in Lord Mayhew's case,
page nine, paragraph 11, which I do not invite the Committee to
go to but it is conceded and was reaffirmed in answer to my Lord,
Lord Nicholls' question, that a purposive approach to clause 1
leads to the construction that in consequence of clause 1 no-one
shall be entitled to a Writ of Summons by virtue of a hereditary
peerage nor be obliged to answer one. That is a significant inevitable
My Lords, my submission on clause 7(2) is again
of the simplest. It is found at page 56 of the bound pink volume
and my submission is simply this. Clause 7(2) needs to be read
in harmony with clause 1. My Lords I make this submission which
is, I understand, of the tritest but this is a single purpose
My Lords, the word "accordingly",
to which I referred a moment or two ago, is therefore in the draft
and is apt and appropriate to take in clause 7(1), to give effect
to the simple single purpose which is described in clause 1. The
language of clause 1 I submit is of the simplest. It is clear
and straight forward. There is no ambiguity capable of being dredged
from it. It cuts through the arcane peerage law which I recognise
to be of present interest. It is of course subject to clause 2,
which one does not need to overlook here, the Weatherill Compromise.
My Lords, clause 7(1) is equally clear. Again,
my Lord, Lord Nicholls, raised this, inquiring, I paraphrase,
of my learned friend, Mr Beloff, "what's its point",
and the point is of the plainest, it is part of the harmony between
clause 1, clause 7(1) and clause 7(2). I submit that there is
not the slightest rational doubt capable of being maintained or
sustained as to the joint achievement of the harmony between clause
1, clause 7(1) and clause 7(2). The achievement is the removal
of the hereditary peers at the end of this session from your Lordships'
House. There is after all no other category of member to which
clause 1 can sensibly refer.
The very limited issue between us, therefore,
is that described in the first sentence of paragraph 30 of our
case. It is at page 32 of the bound pink volume. The only difference
between us, therefore, is that despite the interesting byways
that we have explored, the issue between the Government and Lord
Mayhew is whether clause 1 is confined to future Parliaments as
opposed to the end of this session.
My Lords, the alternative construction, for
which my learned friends contend, is simply not sustainable because
clause 7(1) is as plain as may be. Clause 7(1) at page 57 of the
bundle, "Sections 1 to 6 ..." and I need only refer
to section 1 at the moment "... shall come into force at
the end of the Session of Parliament in which this Act is passed".
That is no-one shall be a member of the House of Lords by virtue
of the hereditary principle. It is membership of the House which
is there attacked and it is done in plain words for an obvious
It is not "no-one shall be entitled to
call for a Writ of Summons by virtue of a hereditary peerage".
It is not "no-one shall have any doubt about continuation".
It is "no-one shall be a member of the House of Lords by
virtue of a hereditary peerage". My Lords, that applies to
those who are presently members, to those who have not answered
their writs and to those whose fathers are still alive and have
a prospect at some stage, given the present state of our law,
of becoming members of the House.
My Lords, with the exception of the Weatherill
Compromise, which I need to touch on in a slightly different context,
from the end of the present session these words are plain, apt
and appropriate to disentitle any member from being a member of
the House of Lords by virtue of a hereditary peerage. Clause 1,
I repeat, does not depend on the chance of whether or not a writ
has been answered to.
My learned friend Mr Beloff said quite plainly
in answer to a question from Lord Nicholls, 7(2) is the "sheet
anchor of my argument". My Lords, if 7(2) is indeed the sheet
anchor of the argument, the ship is going to drift because it
is clause 1 which is the dominant operative clause. I submit to
this Committee there is no species of construction by which the
effect of clause 1 and clause 7(1) and clause 7(2) can be distorted
to produce the conclusion for which my learned friends have contended.
My Lords, in the sixth bundle of authorities,
which I think little attention has been paid to, because I think
it was provided to the Committee late
LORD WIGODER: Which bundle?
THE ATTORNEY-GENERAL: The sixth, it is a slim
LORD HOPE OF CRAIGHEAD: We do not have it in
bound form. It is bound with paper clips.
THE ATTORNEY-GENERAL: My Lords, I am so sorry.
It was provided to me I think this morning. I had it in the form
which the Committee had originally. It is split into three tabs.
CHAIRMAN: It has the Standing Orders.
THE ATTORNEY-GENERAL: My Lords, the standing
orders point is the one that I am going to. Standing Orders have
already been made. Page one of that sixth bundle. They have already
been made for the election of the Weatherill Peers. My Lords,
there would be no purpose in that if the propositions put before
this Committee were sound. To rely on 7(2), I say again, ignores
the power and position, as the dominant operative clause, of clause
CHAIRMAN: Just pause a moment. I do not know
if all the Lords have a copy.
THE ATTORNEY-GENERAL: There is so much paper,
my Lord. Could I simply paraphrase my point.
CHAIRMAN: Please pause.
LORD RODGERS OF QUARRY BANK: I have not got
the pink document. I have been trying to make that clear. I have
not got that. Would it be possible for somebody to make that one
LORD CAMPBELL OF ALLOWAY: We have not got that
THE ATTORNEY-GENERAL: My Lords, I think your
Lordships are dealing with two separate documents. The noble Lord,
Lord Rodgers of Quarry Bank, is referring back to the fact that
when I referred to the Government's case, Lord Mayhew's case and
various attachments, they are in a pink bound volume. I understood
him to be indicating that he did not have the pink bound volume.
Originally, just to produce a perfect harmony, it was of course
bound in blue and was then rebound in pink but it is the same
My Lords, as regards the slimmer volume, volume
VI, I am not sure if all your Lordships on the Committee have