Select Committee on Privileges Minutes of Evidence


Examination of Witnesses (continued)

MONDAY 18 OCTOBER 1999

THE HON. MICHAEL BELOFF, MR JOHN LOFTHOUSE, LORD WILLIAMS OF MOSTYN AND MR PHILIP SALES

  CHAIRMAN: The Lord Chancellor in his speech on 27 April seemed to think it could go to a court, but I am not sure that he was really considering that there would be a right to go to the court.

  THE ATTORNEY-GENERAL: I think I spoke too exclusively in immediate answer.

  My Lords, I will be as brief as I can in my final submissions.

  It was contended by my learned friend, Mr Beloff, that it was a fundamental constitutional right, as I understood it, for hereditary peers to sit in the Lords. My Lords, I submit it is not. If one looks at the context in which we presently attend to these matters, this is, to use Lord Steyn's phrase, a liberal democracy at the end of the 20th century, my Lords, therefore the right to hereditary membership in perpetuity of a non-elected second chamber is not a fundamental constitutional right.

  If I develop that very briefly, because I am aware your Lordships' time has been fully occupied, since the Great Reform Act we say the tendency has been for the moral and political authority to devolve to the Commons, not to remain in the Lords. One does bear in mind the preamble to the Parliament Act of 1911, and I give the reference only rather than reading it, it is in Bundle 6 at page 1. Further, it is not without relevance for consideration that since the Life Peerages Act of 1958 the voting power of the hereditary peers has been subject to dilution on a continuing basis in that more and more life peers have entered your Lordships' House, which inevitably means a dilution in the block power and the majority of the hereditary peers. So it has been a shifting position. My Lords, it was put in that way originally, then it was developed on a rather perhaps more attractive basis, namely that there had been a constitutional bargain. My Lords, the reference to this is found in the Case at page 17 of the pink bound volume and perhaps I can go to it very briefly and I will be as economic as I possibly can.

  Page 17 of the pink volume, paragraph 31 of Lord Mayhew's case. I am looking at D. "Article 3 of the First Protocol states: `The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

  It seems to me that is the more refined point which my learned friend sought to rely on.

  My Lords, this does not mean, I submit, that Article 3 would be breached in the context of the hereditary peers not having been able to vote at the last election. They have played their full part in this Parliament so far, until the end of this present session, and thereafter as your Lordships know the power is in the Act for the Secretary of State to make appropriate arrangements for hereditary peers to stand for and vote in the Commons. I will just give the reference, if I may. It is to be found, and I simply give it for assistance, in Volume IV at page 1345 at the bottom, Tab 71. Essentially I think all I need to do is very shortly draw the Committee's attention to paragraph 4 on page 1345 and paragraph 7, which expands the word or two which I said about the Secretary of State making transitional provision.

  My Lords, reference to European parliamentary elections is not in the Bill because we thought hereditary peers could not vote in European parliamentary elections, we knew perfectly well. It is a power to be able to make registration much more simple in that hereditary peers will be able to vote in parliamentary elections for Westminster and European parliamentary elections by means of a simplified procedure. I do not think I need detain the Committee further having given that reference to indicate that the mechanism is there for the Secretary of State to adopt. That would mean for a time, until the first appropriate by-election, hereditary peers who were no longer members of this House would not be able to vote in by-elections and for a relatively short period of time, that is until the next election, they would not be able to vote either.

  CHAIRMAN: You say it is the same for 17 year olds who become 18, or whatever the relevant age is now?

  THE ATTORNEY-GENERAL: Exactly, particularly when one looks at the very wide words of Article 3. I am bearing in mind the margin of appreciation which devolves to the domestic legislature.

  The other point is, and I do not put this centrally, the fact that most people in the United Kingdom elect one Member of Parliament per, let us say, 60,000 voters. The Weatherill compromise gives 750 hereditary peers the right to elect 75 representatives, Members of Parliament, one per ten. My Lords, I am not, I do repeat respectfully, putting that at the centre of my argument, I am simply submitting that is something which needs to be borne in mind. My Lords, in any event, clause 7(1) is in the plainest possible terms. There is no conceivable possibility of ambiguity and that is all that is required. My Lords, the Scottish peers were in a not dissimilar situation from 1707 to 1963 when they could not stand in parliamentary elections or vote in parliamentary elections, they simply had their representative peers here; 16 of them.

  Could I invite your Lordships to the Supplementary Bundle, the green supplementary bundle at Tab 1? It is a very poor copy for which I apologise. It is at page 2 of Tab 1. This is to deal with a long list of statutes which it is claimed do one thing and other statutes which do not do another. I am looking at section 2. It is not clear; I repeat my apology. On page 2 what one has there is by virtue of conviction for treason or felony, and one sees four or five lines up before the beginning of 3 and the rubric, "Persons convicted of treason or felony may be condemned in costs", the disqualification there, and I am reading in a few words, "... or any civil office under the Crown or other public employment, or any ecclesiastical benefice ..." and then these are the important words, "... or of being elected, or sitting, or voting as a member of either House of Parliament." So one has quite a clear reference there in the Forfeiture Act.

  CHAIRMAN: When did that take effect?

  THE ATTORNEY-GENERAL: 1870, my Lord.

  CHAIRMAN: No, was it immediately? There is no question of it being at the end of the Parliament?

  THE ATTORNEY-GENERAL: No, my Lord.

  CHAIRMAN: So from the date of the commencement of the Act. It is a very different situation.

  THE ATTORNEY-GENERAL: My Lord, it is. It is simply an illustration that not all drafting of statutes has been identical, if that was the point which was relied upon.

  My Lords, I can go quite shortly now to page 8 of Lord Mayhew's case, paragraph 10, which is the two limb argument. The submission, which I reiterate, is that our drafting is apt to deal with both limbs. I have already submitted in the context of paragraphs 15 and 16 that there is confusion in the case put forward by Lord Mayhew; there is a confusion between the evidential nature of the writ, in other words the piece of paper, and the continuing effect.

  My Lords, there are some relatively minor points which I will deal with very, very quickly.

  If one looks at page 15 of Lord Mayhew's case—and I am not sure how heavily this is relied on and I deal with it only for the sake of completeness—in paragraph 26 there are questions which are easily answered. It seems to me these are simply logistical questions which can be simply determined when the new arrangements come to hand, as indeed there have to be arrangements at the moment. So that is my reference in my answer, indeed in total to the paragraph 26 point.

  The paragraph 27 point has already been taken up by my reference to the Committee of Delegated Powers, which I made a moment ago.

  My Lords, can I reduce my submissions to their brutal minimum? One is that clause 1 is plain in its effect and it is the dominant operative clause.

  CHAIRMAN: Sorry, say that again.

  THE ATTORNEY-GENERAL: My Lord, the first is that clause 1 is of the plainest and it is the dominant operative clause, in the context of course of a single purpose Bill.

  Two, clause 7(1) read in proper harmony with clause 1 sets out the mandatory timetable.Three, clause 7(2) on a proper understanding of what a writ does, on the basis of the authorities I cited to the Committee this morning, is amply competent to require hereditary peers who have answered to their writ to depart at the end of this session and for those who have not yet answered their writ but might wish to do so similarly to go at the end of the session.I do not believe I can assist the Committee further.

  CHAIRMAN: Thank you very much. Mr Sales, do you have anything? Mr Beloff, would you like to reply?

  MR BELOFF: My Lord, once the Attorney-General had conceded, as he did, that whatever might be the position for the future work of this Committee it was appropriate for the Committee, once seized of the question referred to it by the House on this occasion, to deal with it, there is nothing that I in my role as advocate for Lord Mayhew of Twysden could usefully say upon that point save only this: that if your Lordships were to consider in the course of your determination of the question giving any guidance for the future as to the appropriateness of the House referring questions at a stage before a Bill is enacted, could I just simply give your Lordship, and give your Lordship only, references to jurisprudence of what we suggest is an analogous situation where courts of law have considered legislation prior to its enactment and have believed it to be useful to do so in the particular context of those circumstances which there obtained? I do this purely on the basis if your Lordships need to consider the position at all, it may be appropriate you have the advantage of such authority bearing directly or indirectly—

  CHAIRMAN: I think that would be very helpful.

  MR BELOFF: My Lord, one of the two cases I have in mind is the case of ex parte Smedley, which is 1985 1 QB at 657, pages 666 to 667, which is in the Additional Authorities Bundle at Tab 16. The case concerned an Order in Council which was in the course of being made and Sir John Donaldson, then Master of the Rolls, said in effect, "It may be useful to the legislature to know in advance our views as to the vires of this Order in order that they might reflect if we determine it had no vires as to whether it was appropriate to enact it."

  The second case, the only other case I have been able to identify which bears in any way upon this type of issue, is a case called Rediffusion (Hong Kong), I give it an abbreviated title, 1970 AC 1136, and the page reference is 1158 A to B and it is Additional Authorities, Tab 15. In that instance the Privy Council considered it was appropriate to rule upon the issue as to whether a Hong Kong statute did or did not violate an English Act of Parliament before the Hong Kong statute or legislation was enacted. Again, your Lordships may find that a helpful analogy.

  My Lord, may I turn to the substantive matter on which I enjoyed audience?

  CHAIRMAN: There may be a difference, may there not, between legislation which affects Parliament itself and particularly the House of Lords itself, and general public legislation?

  MR BELOFF: Indeed there may be, my Lord, but I did not feel it appropriate to trespass outside simply giving your Lordships that. There are many points I could make in response to the Attorney but that is not my debate, as it were.

  CHAIRMAN: No. Thank you.

  MR BELOFF: My Lord, the issue before the Committee has been refined in the course of argument to one which now can be seen as being as short as it is important, that is to say whether or not this particular Bill in its present form uses words of sufficient clarity to remove the right to sit in Parliament from those peers who have returned their Writ of Summons and thus obeyed the Queen's command.

  My lord, Lord Slynn of Hadley suggested while my learned junior was addressing the Committee that the Government would no doubt accept that clear words were needed. Nothing my learned friend, the Attorney-General, advanced appears to depart from that proposition, on the contrary both in the written case and in his oral submission he said that clear words were there and by implication that they were indeed needed. We would submit that that acceptance of what is required to effect a change of this constitutional significance is of course compelled by authority.

  In his closing observations, the Attorney-General ventured the proposition that it was not right to speak at the end of the 20th century as if the status of hereditary peers as Lords in Parliament could be regarded as a status of enjoyment of a constitutional right, and he pointed out as a matter of political history that the powers of the House of Lords have undergone a change and diminution during the course of the last century and that there was a view, the political merits of which of course are not for me or Lord Mayhew to debate, that at the end of the 20th century it was no longer appropriate to have a significant hereditary element in a modern legislature.

  My Lord, all that may well be accepted, that is a particular view, but nonetheless the status quo which this Bill seeks to disturb is a status quo which has existed for almost seven centuries in which the hereditary peerage have enjoyed a status as members of the legislature.

  Your Lordships will recollect what was said by Viscount Birkenhead in the Rhondda case, and can I just show your Lordships this passage again, because my learned friend read the passage immediately preceding it without then detaining you with the subsequent words which we say were of equal if not greater importance? This is at page 365 of the Law Report, it is Volume I, Tab 38, and it is page 220 if one is looking at the volume reference as distinct from the court report reference. What Viscount Birkenhead, Lord Chancellor, said, in the penultimate paragraph on that page is, "What we have to ask ourselves is whether the Legislature, when dealing with a constitutional question of the utmost gravity, and effecting a revolutionary change in the privileges of this House, and dealing with and binding His Majesty's prerogative, has seen fit to do so by words which can be thus described." That is where he was suggesting general words were sufficient. In our respectful submission, shearing away one's political approach to this issue and just looking at the substance of the matter, we have here a constitutional question of the utmost gravity. It effects a revolutionary change in the privileges of the House. It deals with and binds Her Majesty's prerogative and in our respectful submission one cannot diminish the force of that proposition by reference to the views of one political persuasion or another. One must look at the substance of what is proposed in the context of what the present status is.

  I also draw your Lordships' attention to the fact that although my learned friend read the preceding passage for the purpose of reminding you that one derives the intention of a legislation from the nature and grammatical meaning of the words it has used, one has to bear in mind that Viscount Birkenhead accompanied that by emphasising the need for pristine clarity when one is dealing with a subject-matter of this kind.

  My Lord, the pattern of the pre-existing law may by now, your Lordships feel, be well defined. The critical sequence, if I can put it in that way, is this: firstly, one has a peer (non-disqualified), secondly, that that peer has the right to have a Writ of Summons issued to attend a Parliament; thirdly, that that peer must exercise the function of returning the writ in response to the command contained in the writ; and fourthly thereafter he or she may participate in the affairs of this House. It is wrong, if it has ever been suggested, that it is sufficient to describe oneself as a non-disqualifying peer and then on that basis to claim an entitlement to participate. In other words, of the four stages of the sequence I have outlined, it now appears to be common ground, if it was ever in dispute, that one cannot simply omit stages two and three.

  What was done to achieve the exclusion of the hereditary peerage is indicated, of course, by clause 7(2) which is in a sequence of clauses which leads, notwithstanding intervening clauses by virtue of amendment, in logical progression from clause 1 via clause 7(1), and it denies the effect of a Writ of Summons issued for the present Parliament, which then provokes the question on which your Lordships have had conspicuous debate as to what is the effect of the issue of the Writ of Summons. Your Lordships had my learned junior this morning taking your Lordships through with his erudition and knowledge as to why our case, Lord Mayhew's case, is that the effect of a Writ of Summons is to command attendance at Parliament, to compel a duty and to confer a right and that thereafter its effect is spent. Your Lordship will not be pleased if I were to act as, as it were, the dummy having heard the ventriloquist before the adjournment, so I will not repeat that, but if I may I shall stand back and simply ask certain questions and give the answers to your Lordships as best I can and also comment very briefly, and for the last time, on the salient authorities to which the Attorney-General referred for his part.

  I accept, as certain of your Lordships put to Mr Lofthouse, that the fact it is now established and well established that a Writ of Summons does not have effect until it is returned, does not necessarily mean logically that it has no effect thereafter. I agree that conceptually it would be possible for something not to have an effect until point of time A but to continue to have effect beyond point of time A, but nonetheless in our respectful submission the cases do make clear that in this particular instance the Writ of Summons is exhausted in point of time after it has been returned to in the conventional way. I simply wish to draw your Lordships' attention for the last time to two passages in two key cases on which there has been much debate which have been perhaps under-emphasised in the course of dialogue between the Committee and the Bar but are certainly essential to an understanding as we submit of the dimensions of the Writ of Summons.

  The first, my Lord, is again the Abergavenny case, the Nevill case, which I ask your Lordships to look at. We have it at several junctures but at Volume IV, Tab 61, page 1185 it is taken from page 72 of Cruise on Dignities. Your Lordships have been much pressed with the words in the centre of the page, "the writ hath no operation and effect until he sit in parliament", and that certainly makes good, and we suggest makes good this positively, the proposition that the issued writ has no effect until that particular time but does not by itself make good the proposition, which we also advance that it has no effect thereafter. That which we suggest reinforces that latter proposition are the words at the end of the page. If I may read six lines from the end again and for the last time, "And when one is called by writ to parliament, the order is that he be apparelled in his parliament robes, and his writ is openly read in the upper house, and he is brought into his place by two lords of parliament, and then he is adjudged in law inter pares regni." Our respectful submission is that it was resolved at that stage by the Lord Chancellor, the two Chief Justices and other members of the court that that was the status he then enjoyed and his rights and duties thereafter flowed from the fact he enjoyed that status and not from the fact he had been the original beneficiary of a writ.

  We say exactly the same point and emphasis is given in the case of the Barony of Strange, which is referred to at the next tab, at page 1194. Tab 61. Page 318 of Cruise on Dignities. Again, I ask your Lordships to look at the end of the first paragraph and to recognise in our respectful submission that there are two, albeit interlinked but nonetheless separate, notions inherent in the critical passage. "When the person summoned sat, the writ of summons had its full effect ..." That is point one. That is when the writ bites. It does not bite until then. Then, to go on to the next sentence, "His creation into the state and dignity of a baron was by operation of law, in consequence of his once sitting ....". We respectfully submit that that is a separate notion, that is to say that one has both the state and dignity of a baron as a result of having sat in response to a writ and that one's duties and rights thereafter are because one has at that juncture achieved that status. If that be right, then in our respectful submission there is in truth no clause that in fact deprives peers who have received and responded to that, that is to say by returning the Writ of Summons, of the rights that they derive in relation to that act of return before the end of the session. In our respectful submission there is no basis for ignoring the precise words which have been used, the law in relation to writs may be arcane and it may be antique but it is established, and it is established because it cannot be changed according to the context unless, which is not the position, the context has materially changed.

  Two points were made in the course of discussion. The first point made by my lord, Lord Campbell of Alloway, was that he detected in our submission a division of approach to hereditary peers on the one hand and life peers on the other, advocating an approach which depended upon the original meaning to be attached to Writs of Summons in respect of the former group but conceding a different approach to Writs of Summons issued to the latter group, the modern creations. My Lord, I wish to dispel any suggestion, if it lingers in any of your Lordships' minds, that that is our submission. It is not so. The Writ of Summons which is issued to these two groups is the same, its incidents are the same, its consequences are the same.

  Insofar as the point was made that Parliament now sits in more or less permanent session, or certainly for periods of time longer than it sat in ages past, the key point is however that it never sat, or certainly only unusually sat if at all, for a single day. So the problem which was first exposed, if it be a problem, by my lord, Lord Hope, that the Writ of Summons itself referred to giving attendance and counsel, which seemed to suggest that it referred to a period of time after the writ had been returned, was a matter that had to be construed in the context of medieval as of modern parliaments. Your Lordships have my learned junior's main construction that the effect of those words is merely to indicate the type of service that is expected once one attends and to differentiate, for example, on the one hand the service to be expected of members of the judiciary and the service to be expected of members of the legislature. We respectfully submit that there is no rule of construction which would enable one to ignore the effect that is designated and imposed by law upon Writs of Summons, certainly not because the Government say they intended more than they have in fact achieved in the language used. Although simply is neither here nor there, it is in fact well-known that they have had plenty of opportunity to consider and if necessary to respond to the points which were made originally in my learned junior's opinion.

  The Attorney-General in his last observations suggested to your Lordships that the argument that we advanced from precedent, that is to say an argument which was advanced on the basis that the formula that has previously been used by Parliament to deprive sitting peers of their rights to continue to sit, was distinct from that which is deployed in this Bill, and that one should also ask the question whether or not, looking at the matter objectively, one should not assume that the change in formula indicates a change in intent. Your Lordships will know in the last of the five questions my learned junior posed to himself on the basis of questions posed by your Lordships to me on Thursday, there is a list of those particular statutes.

  The Attorney-General appeared to consider that he had identified at any rate one statute that suggested there was no general formula and that it was not necessary to do more than to use the vocabulary which is used in this Bill. But we respectfully submit that the very statute he referred to reinforces rather than undermines our argument. Can I just ask your Lordships to look at it again? You have it fresh in mind. It is in the Supplementary Bundle of Authorities.

  CHAIRMAN: This is the felony point?

  MR BELOFF: This is the forfeiture point.

  The Supplementary Bundle of Authorities, Tab 1, page 2. It is the second section of that Act. The persons who are to be henceforth disqualified, those who have been convicted of treason or felony, shall be incapable—I take it four lines from the top of the page—"... of holding any military or naval office, or any civil office under the Crown or other public employment, or any ecclesiastical benefice, or of being elected, or sitting, or voting as a member of either House of Parliament ...". Elected, of course, refers to the House of Commons. Sitting or voting may refer indifferently to both but it certainly refers to your Lordships' House. But the very point we made is that the traditional method, the hallowed method I venture to say, of depriving persons otherwise entitled to sit or vote as a member of a House of Parliament is to attack the right to sit and vote itself. That is the vocabulary which is deployed in the other legislation, that is the vocabulary which is so significantly missing in this particular Bill.

  I now, if I may—and your Lordships may be concerned with the tedium of my submissions but not the timing of them as I shall not in any sense trespass anywhere near the deemed time to close this particular session—could I just take your Lordships very briefly, because my learned friend went through them with some velocity, the authorities which he said were conclusively in his favour? I would respectfully submit that if one perhaps took them with a measure more patience one would see that they are by no means to the effect which he contended. I shall just take, if I may, five of them very swiftly.

  Would your Lordships firstly go back to Viscountess Rhondda? I ask your Lordships to look at what was said by Viscount Birkenhead which is at page 213 of Tab 38, Volume I, page 358 of the report, 213 of the bundle. My learned friend read to your Lordships from the observations of Lord Cranworth, the Lord Chancellor, in the Wensleydale case, some seven lines from the top of the page, and what Lord Cranworth was distinguishing, quite rightly, was the fact it was not the Patent of Nobility but the Writ of Summons which he was entitled to.

  LORD CAMPBELL OF ALLOWAY: Which tab?

  MR BELOFF: I am so sorry. Volume I, Tab 38.

  My learned friend uses this as a mirror in which to reflect the observations of Lord Cranworth in the Wensleydale case and he quoted you the passage from those observations which are five lines from the top of page 358, "'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.'"

  What was the issue which Lord Cranworth was there addressing? The issue he was addressing was, what is the source of the right to sit in Parliament, is it patent, is it writ, and he said, and we have no quarrel with that, in a choice between the two it is elementarily the writ. What he was not addressing at that juncture of his observations was the stage at which the writ gave rise to the right, and that was dealt with in another passage from Wensleydale, also cited by Viscount Birkenhead, on the right hand side, page 359 of the Law Report, 214 of the volume. This is the second main paragraph, three lines in, "... he sits because he presents a Writ at the bar of your Lordships' House, commanding him to attend ...", and then he goes on to say, "... whether he has a Patent or not, is absolutely indifferent." So at that juncture, Lord Cranworth is addressing the issue, is a writ issued by itself sufficient to entitle one to sit, and he is answering the question, clearly not, one has to return it and present it at the bar of the House. So it is, of course, a sine qua non. We have never disputed that. It is not sufficient until it is returned.

  At 364, to take the matter on, 219 of the report, my learned friend referred your Lordships briefly to references from the Lords' Journals in the 17th century, where your Lordships brought your minds to bear on who was or who was excused attendance. My Lord, a perfectly accurate citation but irrelevant to the issue before your Lordships because there is no indication that the Lords' Journals or those who reported the matter were not making the distinction which we say is made elsewhere in Coke and in other Lords' Journals to which Mr Lofthouse in particular referred, but there is a difference between failure to attend in response to the Writ of Summons and failure to attend in the Parliament itself thereafter.

  My Lord, it may be useful to deal at this juncture with the Select Committee Report, Bundle V, Tab 8.

  CHAIRMAN: Should we be looking at that? We have looked at it de bene esse.

  MR BELOFF: We are not embarrassed by it. In this particular area views are expressed, your Lordships can give such weight to them as you consider fit, it is not actually binding authority or precedent.

  CHAIRMAN: As long as you do not object?

  MR BELOFF: I do not object as long as your Lordships are not misled as to what is said.

  CHAIRMAN: Where do we find this?

  MR BELOFF: Tab 8 of the Supplementary Bundle of Authorities which I called Volume V because it is indeed a fifth but has never I think been given that title.

  I am not going to detain your Lordships at any length with this because what we say about this report is that it was a report of a Select Committee who were directing their minds to a practical problem, that is to say what powers did the House have in relation to members of the House who were not exercising their right or performing their duty of attendance. In that context, they were not bringing their mind to bear upon whether or not a Writ of Summons once returned had exhausted its effect, or indeed necessarily by what right precisely the Lords of Parliament sat in Parliament thereafter. It simply was not a question which fell to be determined and the language that they used is in that context sufficient for their purposes but imprecise for ours. Your Lordships may, however, note, just as an example of a passage which we could cite in our favour if we considered that this Select Committee had any real potency and aid to construction, paragraph 13 at page 89, where the language of the writ is set out and then it goes on, "In considering the precise nature of this right and duty of attendance, regard must also be had to the terms of the Letters Patent ....". In terms of attendance, of course, the vocabulary which is used is one that is tied to day and place, so we say that is perfectly in harmony with our particular approach but there is nothing in a sense which bears positively in our favour or negatively against us, it is just that the House is not having to consider this precise issue.

  To go to another passage, the memorandum which was provided by the then Attorney-General and subsequently Lord Chancellor and junior counsel to the Crown in peerage cases, Mr Squibb, your Lordships will recollect at page 102 the authors of that memorandum appeared to consider that the duty to attend, which was the subject-matter of the Committee's deliberations, could be divided into, on the one hand a duty to present oneself and, on the other, a duty to attend thereafter. That is because they cite from Coke, and therefore treat Coke, albeit hundreds of years later, as representing contemporary law, who draws the distinction which my Lords may recollect that both I and my learned junior sought to draw between the penalties appropriate for non-attendance at the start and the penalties appropriate for insufficient attendance thereafter.

  I think my lord, Lord Campbell of Alloway asked whether this Select Committee bore any fruit. The fruit which was borne, I am told by Mr Lofthouse, indirectly is the Standing Order to which my learned friend, the Attorney-General referred at page 80. But, again, it is dealing with a practical matter, the exercise of power, the way in which attendance may or may not be excused. It bears not directly, or we would say sufficiently at all, on the issue which your Lordships now have to determine.

  What does, however, bear on it is another authority which my learned friend referred to, which he suggested was inconsistent with our fundamental case, and that was from Anson. He took our words of Anson, being a constitutional expert of the highest standing—your Lordships recollect the passage upon which we place reliance—drawing distinction between the consequence, the issue of its writ and its perfection, and I do not return to that. The passage which he said was harmful to us is at Tab 63, page 1232.

  LORD WIGODER: The alternative page number please, Mr Beloff?

  MR BELOFF: Page 75, my Lord.

  The passage which the Attorney-General read to your Lordships was at the start of the second main paragraph on that page, "Until 1867 the existence of Parliament was affected by the demise of the Crown. The King summoned the estates of the realm, by writ, to confer with him; when he died the invitation lapsed, and the Parliament was dissolved." The Parliament was dissolved, my Lords, because it was the King's or Queen's Parliament and accordingly it was appropriate on his demise—one of the three estates of the realm, as it were, not participant any more—that Parliament would need to be reconstituted.

  My learned friend relied upon this particular passage to suggest that the effect of the Writ of Summons was recognised by Anson as being to compel attendance not at the start of a Parliament but was effective to compel attendance thereafter. If he had read to your Lordships over the page, page 76, page 1233, the end of the paragraph, he might have seen that the voyage upon which he had embarked was a dangerous one for his purposes. What Sir William Anson there says is, "... the theory that Parliament owed its existence to the King's writ was true to this extent ...", and I emphasise the words "to this extent", "... that the writ was the recognised means by which the three estates could be brought together." That, in our respectful submission, is indeed the function of the writ, it is the assemblage of Parliament thereafter, by making return to election writs in the Commons, by making return to Writs of Summons in the Lords, the members of each House acquire a status from which their subsequent rights and duties devolve.

  Halsbury was also cited to your Lordships and that is to be found at Tab 69 of this same volume, paragraph 535, page 1330 if one looks at the foot of the page, and my lord, Lord Wigoder's numbering is sufficiently distinct. It is paragraph 535 in any event. This is under the rubric "Right of hereditary peers to receive writ of summons." My learned friend focused on the words or description of a Writ of Summons to sit and vote in the House of Lords. Our response to that is that is not dealing with the effect of the Writ of Summons by itself, it is dealing with the purpose that the recipient of the writ is expected to fulfil if he obeys the commandment of the writ. It is discrimination between, for example, the judicial function, the function of the parliamentarian, or to use other writs in Bishop Stubbs' work, writs summoning military men to the assistance of the realm. The sequence of events and the effect of the writ is thereafter described in passages which I read to your Lordships in opening, and will not trouble your Lordships with again.

  My Lords, I pause, however, to say that even let us suppose for the sake of argument that we failed to persuade my Lords that the effect of a Writ of Summons is not spent after it has been returned—a concession, of course, which I do not make for a single second. In our submission, this is in no sense fatal to our case if one looks at the language that has been used in the Bill.

  Can I take your Lordships back now to page 57 of the pink volume as it has been colourfully described?

  CHAIRMAN: Yes.

  MR BELOFF: What is denied effect is a Writ of Summons issued for the present Parliament. My Lord, it is common ground as I understand it—and if it is not common ground it is clear beyond doubt on the authorities—that a Writ of Summons which has been issued has no effect other than to command attendance unless and until it is returned. In other words, what even on my learned friend, the Attorney-General's argument has continuing effect is not only a Writ of Summons which has been issued but a Writ of Summons which has been returned to. I emphasise the phrase is to that extent double-barrelled. It is not a Writ of Summons shall not have effect, in which one might find debate as to the extent to which a Writ of Summons had per se effect of vital importance, it is a Writ of Summons which has been issued and in our respectful submission the effect of a Writ of Summons which has been issued but not returned to, is only to compel attendance. It is that and that alone which the Act attacks. In our submission, we have as it were a further but fundamental argument in response to those advanced by my learned friend which in no sense is defeated by the resolution, if it were to be resolved in his favour, of the proposition that a Writ of Summons returned to has continuing effect qua Writ of Summons through the duration of a Parliament.

  If I may, I will take your Lordships, if I can, lastly to the Vaux case where we say to an extent there is assistance to be gained in respect of this particular point. This is at Volume I, Tab 32, page 103 and 104, or 524 and 525 if one is looking at the references in the English Reports at the foot of the page. The Attorney-General read to your Lordships the passage at 103 distinguishing, and this is the penultimate paragraph, between the effect of a patent and the effect of a writ. He said that the writ is the authority for admitting a new peer into this House, 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." I am by no means persuaded that those words do any violence to our submission at all, because again we have always accepted that the writ is a sine qua non.

  What the learned Attorney-General failed to draw your Lordships' attention to, no doubt through inadvertence, was the last sentence in the paragraph which may be thought to be of importance in this context, that "... the writ is taken from him by the Chancellor, to be deposited among the records of the House." That is what we say is a physical expression of the principle that we have espoused, namely that the writ is spent as to effect.

  However, it is on the other side of the page, 104, that we say that the most powerful words are to be found. Before "580", if one is looking at the Clark & Finnelly pagination, between "579" and "580", about eight lines above "580", a third of the way down the page, "A writ of summons to Parliament is simply the King's command to a person to perform a particular duty. It grants nothing; it creates nothing; it cannot therefore ennoble. In the Abergavenny case where the writ of summons had issued, but the party died before he could obey it ...", which my lord, Lord Hope reminded one was the context of the Nevill case, "... the decision of all the Judges was, that a person summoned to Parliament is not a peer until he obeys the writ. The peerage under a writ is consequently obtained, not by the writ, but by sitting in this House ...". At that stage, of course, one was talking about the obsolete method of peerage creation, but the principle underlying that, namely that what in fact conferred in that sense the dignity of a peerage but equally in the modern incarnation the functions of a Lord of Parliament, is not the writ but the sitting in the House.

  We say, again, if one is being asked for candidates for our primary submission, that would appear to be a prime authority for our particular point.

  Perhaps your Lordship might note just at page 105 before Report Clark and Finelly 583, an analogous description of the creation of the office of Lord Chief Justice.

  We then return finally, and subject to the point that I have already made in relation to the language of 7(1) and 7(2), just to the text of the Bill. We repeat that whatever may or may not be said about clause 1 as to its objective, it is silent both as to the means by which the objective is to be achieved and the timing by which that objective is to be achieved at 55. There are no words that can be read in to fill those gaps in clause 1 itself. It therefore follows that clause 7(1) and clause 7(2) are necessary to supply that particular omission, necessary to supply in 7(1) the answer to the question "as from when" and necessary to supply in 7.2 the question "by what means".

  It makes no sense, in our respectful submission, it is really a forensic flourish to describe clause 1 as being a dominant clause. With respect, there is no such notion as a "dominant" clause in exercises of construction, it is the first clause in point of time. It, however, is linked expressly in 7(1) and by that 7(2), they have to be read together. What is required is an integrated reading of the matter as a whole. We suggest that as this Bill itself on any view speaks of a staged amendment of the composition of your Lordships' House, the only issue which divides the parties functionally is the timing of those particular stages.

  My Lord, I come lastly, and I use the word lastly not in the aspirational way counsel always do but actually accurately, by reference to the European Convention on Human Rights which my learned friend, the Attorney-General, summarised by reference to the printed text. My Lord, what cannot be gain-said is that hereditary peers who are the victims, if I am not using too emotive a word, of this Bill, did not elect the House of Commons and will be deprived of the quid pro quo of participating in the House directly. Their position must be distinguished from those who never had a right to elect in the first place to what was always distinguished between a situation of deprivation on the one hand and non-conferred on the other.

  Insofar as the point is said to be mitigated in any way by an ability to vote, as there may be, at by-elections, see 7(3), that depends upon the grace and favour of the Executive and is only for, in any event, a limited group who happen to be in the constituencies in which adventitiously a by-election may be called.

  Insofar as it is suggested that the position is mitigated by an ability to vote for the so-called Weatherill peers, that is not conferred by legislation, it is conferred by Standing Orders that are themselves mutable and in any event it is manifestly a lesser right, a lesser direct participation, than they presently enjoy. Insofar as the matter is put on the basis recognised in the Strasbourg juris-prudence that there is a margin of appreciation open to domestic legislatures to determine the limits within which people will enjoy the rights to participate in Government, we ask this question: is it seriously to be said, and this is the only issue that functionally again divides us, that two years is going to make all the difference? Is it so important in the context and abrogation of a right that has existed in this country for over seven centuries?

  My Lord, unless I can assist your Lordships any further that is our case.

  CHAIRMAN: Thank you very much indeed.

  Counsel and parties were ordered to withdraw and after a short time were again called in

  CHAIRMAN: Mr Attorney, Mr Beloff, the Committee will report to the House as follows: (1) that the Committee have met and have considered the Reference of the House of 27 July which was in the following terms: "whether the House of Lords' Bill (as amended on Report) would, if enacted, affect the right of those hereditary peers who have answered to their Writ of Summons before the Bill receives Royal Assent to continue to sit and vote throughout the Parliament in which the Bill is enacted". (2) That the Committee have heard counsel on behalf of the Lord Mayhew of Twysden and on behalf of Her Majesty's Government. (3) That it is the unanimous opinion of the Committee that the House of Lords Bill would remove the right to sit and vote from all hereditary peers who have answered to their writ of summons before the Bill receives Royal Assent, save those exempted by virtue of clause 2, from the end of the session in which the Bill is passed. Reasons for this decision will be given later. Their Lordships are very indebted to counsel for their assistance in this.

  

Adjourned until To-morrow at half past Ten o'clock





 
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