Examination of Witnesses (continued)|
MONDAY 18 OCTOBER 1999
CHAIRMAN: Mr Attorney-General, would you please
pause for one moment. Two or three Members of the Committee do
not have it.
THE ATTORNEY-GENERAL: Perhaps I ought to step
back a single pace. What I was submitting to the Committee was
by reference to the first page in the sixth bundle. One sees that
on 26 July Standing Orders were made by the House, on the proposal
of the Leader of the House, that Standing Orders should be amended
to allow for the election of the hereditary peers, in other words
the Weatherill Peers.
My Lords, perhaps it is convenient, just almost
by way of parenthesis, for me to deal with the question of what
weight, if any, should be given to explanatory notes. Your Lordships
will remember that on Thursday a question was raised by Mr Beloff
as to whether or not they could in any way form part of a Pepper
v Hart use to construction. My Lords, in the second tag or
the second part of this bundle we find the explanatory notes.
I do not want to spend time on it. I make my submission quite
In the fifth page of that second sectionthe
first page of which is headed "Select Committee on Modernisation
of the House of Commons Second Report Explanatory Material for
Bills"in the fifth page of that enclosure one finds
the words "Second Report Explanatory Material for Bills".
If one goes onI hope your Lordships have itto the
appendix to the Report
CHAIRMAN: It is two pages further on.
THE ATTORNEY-GENERAL: My Lord, yes. At paragraph
18, which is the next page on againand it is a relatively
peripheral point I concede"If the notes are successful
in the purpose of helping the reader, they will of course be read
by judges as well as by others. However, they are not designed
to resolve ambiguities in the legislative textif ambiguities
are identified as the Bill progresses, they should be removed
by amendment. Occasionally it may be that notes are referred to
in litigation in the same way that Hansard is under the
rule in Pepper v Hart. So it will be important for those
producing the notes to achieve a high degree of accuracy and also
to restrict the notes so that they do not seem to take the law
further than the Bill or Act does."
My Lords, I am slotting that in at this stage
because Mr Beloff raised a question, rather critically I think,
as to whether explanatory notes were proper to be used for the
purposes of assistance to construction in cases of ambiguity.
CHAIRMAN: Does Pepper v Hart refer to
explanatory notes? I do not think it does.
THE ATTORNEY-GENERAL: No, my Lords, it does
not. That is the reason why I have to make this very short submission.
The parliamentary procedure has changed and the submission I makeand
I think it is all I need to makeis that it would be competent
for a court if it thought it appropriate to look at the explanatory
notes in the same way as it may look at a ministerial statement
in Pepper v Hart. The reason for that being of the simplest,
that the explanatory notes are produced on the new procedure to
indicate what the view of the introducing minister is.
CHAIRMAN: We will look at it deeply and decide
later whether we should have regard to it. Is that acceptable
to you, Mr Beloff?
MR BELOFF: It is indeed, my Lord.
THE ATTORNEY-GENERAL: It seemed to me that I
ought to deal with it very briefly because it was specifically
raised and I leave it.
CHAIRMAN: You are very well aware that the judicial
committee is not enthusiastic even about Hansard under
the rule of Pepper v Hart.
THE ATTORNEY-GENERAL: My Lords, yes. My Lords,
we come then to the fundamental question, which is the one that
has been subject to question from a number of your Lordships:
is a writ spent of all effect when answered to? It does seem to
me with great respect that that is really the only point that
my learned friends have. One needs I think to put the words in
"spent of all effect".
My Lords, I am going to, if I may, the pink
bound volume at page 36. It is our paragraph 36. My Lords, I simply
put that as part of my submission without seeking to read it and
thereby detain the Committee. It is helpful perhaps if I invite
the Committee to look at tag 38 of volume I. It is the case of
the Viscountess Rhondda. It is tag 38, my Lords, of volume I.
My Lords, I am simply giving one or two short citations. I stress,
if I may, to expand the case which is already in the printed volume
from which I do not resile.
My Lords, could I invite the Committee's attention
to page 213, the numeral at the bottom. Half a dozen lines down
on page 213, I simply, if I may, reiterate the point that is made
there by Lord Cranworth, Lord Chancellor, "... that which
gives every noble Lord the right to sit here is not his Patent
of Nobility, but the Writ of Summons which he is entitled to,
in consequence of that Patent". I underline, if I may, "the
right to sit here". The same theme is taken up at page 214,
again about eight lines down, rather less, "... The letters
are read in order to see whether there has been granted by them
to the person who presents the writ the right to receive the writ
and to sit under it." It would be a fatuous construction
if the right to sit under it were simply limited to the first
day of the Parliament or, as your Lordships will know, since many
noble lords do not attend on the first day of Parliament for reasons
of space, it would be fatuous to suggest that that right is limited
to the one day.
My Lords, one or two further observations, if
I may. Page 219 of the same report, half way down. "On almost
every day on which the sittings of the House are recorded and
the names of those present are given, there is added a list of
those who are excused from attendance. The obligation to attend
appears to depend in its origin upon the common law". My
Lords, the obvious question which I submit derives from that is
if the obligation is discharged when the writ is spent, as is
submitted on behalf of Lord Mayhew, there would be no sensible
purpose in having a list of attendance nor would there be any
sensible purpose in granting leave of absence.
Then the final point, which really perhaps is
self-evident, on 220. The second full paragraph, the third "The
words of the statute are to be construed so as to ascertain the
mind of the Legislature from the natural and grammatical meaning
of the words which it has used, and in so construing them the
existing state of the law, the mischiefs to be remedied, and the
defects to be amended, may legitimately be looked at together
with the general scheme of the Act." My Lords, that, it seems
to me, in my submission, to be the overarch of how one ought to
look at this present problem.
My Lords, I go back, if I may, to the pink bound
volume. At page 80. I think that the Committee has not earlier
looked at this page. Page 80, my Lords, in the pink volume, and
I am reinforcing if I may the submission I made about leave of
absence. 21(1), this is under the left column. "Lords are
to attend the sittings of the House or, if they cannot do so,
obtain leave of absence, which the House may grant at pleasure'
but this Standing Order shall not be understood as requiring a
Lord who is unable to attend regularly to apply for leave of absence
if he proposes to attend as often as he reasonably can".
"A Lord may apply for leave of absence
at any time during a Parliament either for a session or the remainder
of the session in which the application is made or for the remainder
of the Parliament".
"On the issue of Writs for the calling
of a new Parliament the Lord Chancellor shall in writing request
every Lord to whom he issues a Writ to answer whether he wishes
to apply for leave of absence or no. The terms of the letter which
he has written shall be reported to the House".
That is entirely consistent with the reading
of the command in the writ which has been suggested during submissions
on a number of occasions, certainly by my Lord, Lord Hope and
my Lord, Lord Nicholls.
My Lords, I stay, if I may, with the pink bundle
and invite the Committee's attention to page 37 and also paragraph
37. I simply invite the Committee's attention to that. My Lords,
I will deviate if I may slightly from the scheme which I had in
mind to deal with the specific points which were raised by my
learned friend, Mr Lofthouse, this morning.
I think he was saying that Anson was an authority
beyond peer and that one could pay a very significant amount of
attention to Anson's views. My Lords, I will accept that implied
invitation and see what Anson actually says. I invite your Lordships,
if I may, to tag 63, that is in volume IV.
THE ATTORNEY-GENERAL: My Lords, page 1232 if
I may. A little more than half way down the page, 1232. "Until
1867 the existence of Parliament was affected by the demise of
the Crown." Now these critically important words to which
I think the Committee's attention has not been invited: "The
King summoned the estates of the realm, by writ, to confer with
him...". That is classically the construction which, as I
say, was put to both my learned friends, what does the writ mean.
The invitation is not to attend on a Wednesday or a Thursday depending,
it is an invitation by writ, this in fact puts it further, a summons
by writ to confer with him.
When the king died "... the invitation
lapsed, and the Parliament was dissolved." Therefore I make
two short submissions there. What Anson says at 1232 is correct
and it is entirely consistent with the submissions we put either
in my case or as I orally developed them. Secondly, it is plain
there when he died the invitation lapsed. It is perfectly plain
that the summons imposes a continuing obligation, in other words
a writ is not spent of all effect. There is no other meaning which
can be derived from those words as I submit it.
CHAIRMAN: Mr Lofthouse attached a lot of weight
to the word "perfected", Mr Attorney-General.
THE ATTORNEY-GENERAL: My Lords, that is his
submission based on an earlier passage in the same tag.
THE ATTORNEY-GENERAL: 1221 and 1222. My Lords,
this is a misunderstanding of what "perfected" means.
It is the same sort of error that I tried to identify when I first
began the submissions because my submission is one does not need
to use the word simply "spent" but "spent of all
effect". The passage which I referred to at 1232 makes it
quite plain that it is a continuing invitation. What is specified
by Anson at 1221, half way down in the same tag, tag 63, the first
is the evidence by which the Members of the two Houses can establish
their rights to membership. True, it has an evidential effect.
To regard the Writ of Summons as only being of evidential effect
is to misunderstand the weight and purpose of the command. The
second is the perfecting of a title to sit. Plainly I submit it
is the entitlement to sit and remain.
CHAIRMAN: If you look at little (b) on the next
THE ATTORNEY-GENERAL: Yes?
CHAIRMAN: When he explains further "...
perfecting of the title of a member to discharge the duties of
THE ATTORNEY-GENERAL: My Lords, that is the
critical point. It is not the emphasis on perfecting that matters,
it is perfecting the title to discharge the duties of his office.
CHAIRMAN: It does not mean that the thing is
over and done with, it perfects the title.
THE ATTORNEY-GENERAL: My Lords, it is as simple
as that which is why I submitted right at the beginning that these
matters are interesting but they do not bear the distorted weight
that my learned friend seemed to put on them. The whole purpose
of the Parliament is that it should continue in the old days until
the death of a monarch, now until the calling of a fresh general
election or the effluxion of time, for the continuing service
to be given by members of your Lordships' House to the monarch
for whichever period remains appropriate.
My Lords, if one looks at the same volume but
tag 59, and I am dealing specifically with the latter points which
were raised in submission this morning, the points are made time
and again in slightly different words to entirely the same effect.
If I invite the Committee's attention to tag 59, page 1119. It
is again about eight lines down and I am taking the words "...
delivery of the writ ...".
CHAIRMAN: This is Abergavenny.
THE ATTORNEY-GENERAL: I am so sorry, my Lord,
I should have made that plain. This is Abergavenny.
CHAIRMAN: What is the first word in the line?
THE ATTORNEY-GENERAL: My Lords, "present".
CHAIRMAN: Thank you. It is the judges who were
considering the matter.
THE ATTORNEY-GENERAL: Yes, my Lord. "...
that the direction and delivery of the writ did not make him a
baron or noble until he did come to the Parliament..." and
then these words "... and there sit, according to the commandment
of the writ ..." The commandment of the writand I
will go to them very briefly in a moment or twois not simply
to attend, it is to give counsel and advice.
My Lords, that is reaffirmed a little further
down. I omit the Latin in italics and continue with the English.
"... 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 forasmuch as he hath been made
a peer of Parliament by writ, (by which implicitly he is a baron)
the writ hath not its operation and effect ...". Then these
critical words entirely consistent with the theme that I sought
to put forward "... until he sit in Parliament, there to
consult with the King and the other nobles of the realm..."
It is of the simplest.
My Lords, there were one or two questions which
come from, I think, page 1194 in the submissions made by my learned
friend, Mr Lofthouse, and I will deal with them as well. Tag 61,
page 1194. I ought to say this is a hypothetical question anyway
because if one looks at the last full paragraph on that page the
comment made there iswhich I am not sure your Lordships
may necessarily have seen"Fortunately no case of this
kind has occurred..." so it is entirely hypothetical. Even
on the hypothesis, if one goes about half way down the page: "...
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." The question is what is the full effect? Plainly the
full effect is you are at that stage subject to a command to continue
to counsel and advise and attend.
My Lords, there was reference to the Vaux
CHAIRMAN: Does it mean that you have the full
effect in the sense that your title to sit is perfected but has
no reference to how long you are going to sit?
THE ATTORNEY-GENERAL: Entirely my Lord.
CHAIRMAN: The phrase that follows "...
could not afterwards be avoided, or made not to have been",
it is because you have perfected your title.
THE ATTORNEY-GENERAL: Yes, entirely. It is wholly
immaterial to the scheme of the draft Bill. My Lords, there was
reference also to Vaux's case in volume I at page 103.
LORD STRABOLGI: Which tag?
THE ATTORNEY-GENERAL: My Lords, that is tag
LORD WIGODER: Volume I, my Lord. It is tag 32.
My Lords, it is rather more than half way down.
THE ATTORNEY-GENERAL: My Lords, it is rather
more than half way down, page 103, my Lords. If the numbering
is not clear, it is 524 in the print. My Lords, if your Lordships
see the last paragraph which starts "With regard to..."
and I am reading about half a dozen lines above that, and I would
submit that these are critical words. I start at "The patent".
"...The patent gives him..." that is the new peer "...
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.
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..."
My Lords I want to pause for a moment or two
on this because it is utterly devastating to the argument put
forward by my learned friends. "The patent gives him no absolute
right to come here, unless he be duly summoned to attend..."
and then these words "... for until he is called upon to
perform the functions ..." plural "... of a peer by
a writ from the Crown, he cannot enter this House." The function
is therefore not simply to attend and take the oath, it is the
continuing functions, I submit, it cannot be sensibly read in
any other way.
I continue: "... The writ is the King's
command to attend his Majesty in Parliament..." that is plainly
a continuing state of affairs because we see the contra distinction
in the next sentence "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 ..." entirely, if I may say so, without disrespect,
the approach which was suggested by my Lord, Lord Slynn of Hadley.
My Lords, I know that the pink volume has been
minutely studied but I will go back to it if I may again just
to look at what your Lordships have been now considering for quite
a long time. Can I just go to the roots again, which are at 95
and 96 of the pink bound volume.
My Lords, it is simple really. Again I apologise
for the triteness of this submission but it is of the simplest.
The fourth line up on page 95 of the command, the command is "...
to treat and give your counsel upon the affairs aforesaid..."
and I continue "... this as you regard Us and Our honour
and the safety and defence of the said Kingdom and Church .."
I then underline these words, if I may "... and dispatch
of the said affairs in no wise do you omit...". The command
is of the plainest. It is not attendance alone, it is "...to
treat and give your counsel upon the affairs aforesaid .... and
dispatch of the said affairs in no wise do you omit...".
The same is the phraseology at page 96.
My Lords, perhaps I can go quite shortly to
volume IV, tag 63 again and I think I ought not to trouble your
Lordships to go to it. I am reiterating my point. This is a continuing
invitation, and I promise to refer to the writ in the context
of continuing invitation. The reference in tag 63 is 1232. I have
referred to it distinctly already and I am simply repeating that
THE ATTORNEY-GENERAL: My Lords, there is a small
supplement, if I may, because there is such a super abundance
of points to be made. Page 30 in the same volume. This is at tag
68. My Lords, I am so sorry, it is tag 69. 1330. 535, "...
subject to certain exceptions..." I omit some words "...
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". It makes the point
I think more plainly than I have been able to. One sees there,
not coincidentally, the words "in virtue of" which of
course we find reflected in clause 1 of the Bill.
CHAIRMAN: Do you know who edited this part of
THE ATTORNEY-GENERAL: My Lords, I ought to.
CHAIRMAN: Mr Lofthouse I suspect.
MR LOFTHOUSE: My Lord, a member of my chambers,
THE ATTORNEY-GENERAL: Plainly, therefore, a
source of impeccable authority. My Lords, tag 8 in the supplemental
bundle, page 88, if I may, this is the interesting report by the
Select Committee. It is tag 8 in the supplemental bundle, quite
a thick one.
THE ATTORNEY-GENERAL: My Lords, page 88, numbered
paragraph 11, at the bottom, setting out the writ to which I invited
your Lordships' attention. "Beyond all doubt, such words
in solemn terms impose the duty of attendance in Parliament. And
since the command to attend came from the Crown, so at first the
power to excuse attendance was exercised by the Crown . Thus we
find, in the Rolls of Parliament and the early Journals, numerous
examples of the grant of the King's licence to be absent, which
were frequently coupled with the giving of his proxy by the Peer
If I pause there, "attendance" there
is plainly regarded as a continuing subsisting obligation. The
power to excuse attendance to be exercised by the Crown can only
sensibly be viewed on the basis that the writ itself required
continuing attendance. Thirdly, to revert to my submission about
the purpose of the writ, it is for counsel and advice, that is
why one has there the coupling of the giving of proxy so that
there shall be an alternative agreed and approved source of counsel
and advice. Thereafter your Lordships see that during the 17th
century, the power to excuse attendance was gradually taken over
by the House from the Crown. The House would grant leave of absence
for a period or taking notice that he was absent at the beginning
of a sitting would have to make such enquiries as necessary to
My Lords, "Effect of the writ", half
way down 89, numbered paragraph 13: "The Writ itself confers
upon the Peer the duty to `be at the said day and place personally
present with Us and with the Prelates, Great Men and Peers to
treat and give your counsel upon the affairs aforesaid'. In considering
the precise nature of this right and duty of attendance, regard
must also be had to the terms of the Letters Patent...".
The Letters Patent are there set out and as
paragraph 14 says: "... under the Writ and the Patent a peer
has (a) the right to a `seat, place and voice' in Parliament (b)
the duty to attend in Parliament, and `treat and give his counsel'...".
My Lords, I would respectfully put that forward as the correct
answer to the proposition which was put forward by my Lord, Lord
Hope, are the rights and duties corelative? The answer must be
yes and they are very clearly and helpfully defined here as being
coincident rights and duties.
LORD WIGODER: Mr Attorney-General, will you
forgive me, is this a document we can look at within the ambit
of Pepper v Hart?
THE ATTORNEY-GENERAL: My Lords, it seems to
me that since this is a report by the Select Committee it is entirely
competent for your Lordships to look at this material. It is a
Select Committee relating to the powers of the House and it does
seem to me to be of extreme weight, not least because it is recent1956rather
CHAIRMAN: In fact, the summary in paragraph
14 is merely a repetition, you did not read the Letters Patent
but it is they "... may have, hold and possess a seat, place
and voice...". and the words "... treat and give counsel"
THE ATTORNEY-GENERAL: The writ is of course
there to give effect to the rights and duties which are partly
to be derived from reading the patent.
LORD CAMPBELL OF ALLOWAY: Was note taken formally
by the House? If that was the case there is a considerable
THE ATTORNEY-GENERAL: My Lords, I will confirm
that in the luncheon adjournment if I may.
LORD CAMPBELL OF ALLOWAY: I am sorry.
THE ATTORNEY-GENERAL: Not at all, my Lord, it
is most helpful. Indeed there was a good deal of evidence given.
I will confirm the precise date of those proceedings. There are
one or twoMy Lords, I am most grateful to Mr Sales. He
is drawing my attention to the membership of the Committee at
page 98 which is not, I accept, the perfect answer to the question.
It was set up in June 1955. Your Lordships see the membership
My Lords, perhaps I could take one or two further
illustrations before I close for the adjournment. 102 of the same
tag, the minutes of evidence taken by that Committee. Right at
the top of 102: "Attendance by peers in Parliament today
is accordingly not only a matter of duty to the Crown, but also
a matter of right, and the powers of the House of Lords in relation
to the attendance of members fall to be considered from these
two contrasting points of view.". That is the evidence of
the then Attorney-General.My Lords, I do not think there is further
benefit to be found from that page because I think the citations,
though not from this particular source, have already been referred
My Lords, 108, right at the bottom, again it
is the evidence of the then Counsel to the Attorney-General and
Mr Squibb. "Looking at the matter from this point of view,
we can find no precedent which would form a satisfactory basis
for preventing a peer who has not been guilty of any positive
misconduct from exercising his rights as a member of the House
of Lords." A member of the House of Lords, of course, is
the description which we find in clause 1 of the present Bill.
My Lords, the rhetorical question is what rights?
It is the right to attend, the right to give counsel and advice
with the corresponding duty to attend and give counsel and advice.
"In our view any steps taken by the House towards that end
might be inconsistent with the Royal command contained in the
Writ of Summons requiring a peer to be personally present at Westminster
`waiving all excuses'."
CHAIRMAN: Would that be a convenient moment
THE ATTORNEY-GENERAL: My Lords, it is. I am
CHAIRMAN: Two o'clock.
After a short adjournment
CHAIRMAN: Yes, Mr Attorney?
THE ATTORNEY-GENERAL: My Lords, before the adjournment
my lord, Lord Campbell of Alloway enquired what had happened about
the discussions to which I was referring the Committee. My Lords,
that is to be found at page 80 of the pink bundle and I think
I can just indicate that in fact the Standing Orders were adopted.
LORD CAMPBELL OF ALLOWAY: Thank you very much.
THE ATTORNEY-GENERAL: My Lords, I think I said
that the Bill had not been considered by the Commons. What I should
have said is that it had not been finally considered by the Commons.
I have reflected on the answer I gave perhaps
a little too hastily as to whether or not in future any court
might have any relevant jurisdiction, and I think I should not
have excluded the possibility entirely.