The Powers of the House of Lords in respect of its Members - Privileges Committee Contents

The Powers of the House of Lords in respect of its Members


1.  On 25 January 2009 the Sunday Times published a series of allegations against four Members of the House. The Leader of the House immediately asked the Sub-Committee on Lords' Interests to investigate these allegations, and the Sub-Committee's and this Committee's conclusions and recommendations on the conduct of the four Members are contained in a separate Report.

2.  At the same time as the Leader referred the specific allegations against the four Members to the Sub-Committee, she invited this Committee to consider two wider issues. On 26 January, in response to a Private Notice Question by the Leader of the Opposition, Lord Strathclyde, she informed the House that she had written to the Chairman of Committees asking the Committee for Privileges "to consider any issues relating to the rules of the House that arise, especially in connection with consultancy arrangements, and in connection with sanctions in the event that a complaint against a Member is upheld".[1] This Report embodies our conclusions and recommendations on the second of these issues, the power of the House to impose sanctions upon its Members.

The advice of the Attorney General and Lord Mackay of Clashfern

3.  Our first step was to seek the advice of the Attorney General on the range of sanctions available to the House in the event of a serious complaint against a Member being upheld, and in particular on the powers of the House with regard to the suspension of Members. We also sought the advice of Lord Mackay of Clashfern, a member of this Committee and a Lord of Appeal. The memoranda submitted by the Attorney General and Lord Mackay are annexed to this Report at Appendices 1 and 2 respectively. We are extremely grateful to them for their assistance.

4.  The Attorney General's conclusions on temporary suspension are summarised in paragraph 14 of her memorandum:

While it is possible to construct a respectable argument that the power of the House to regulate its own procedure includes a power to suspend a member for a period within a Parliament on the grounds of misconduct, I consider, on balance, that the House does not have such a power. In my opinion, the key factor against this argument is that a suspension would interfere with the rights of a peer conferred by the Crown to attend, sit and vote in Parliament (albeit to a lesser degree than permanent exclusion). This is a fundamental constitutional right and any interference with that right cannot be characterised as the mere regulation of the House's own procedures.

5.  The Attorney General also draws attention to a binding resolution agreed by both Houses, in 1705, to the effect that "neither House of Parliament hath power, by any Vote or Declaration, to create to themselves any new Privilege, that is not warranted by the known Laws and Customs of Parliament". She advises that a decision to suspend or expel a Member would exceed the limits of the House's power of self-regulation, and so constitute the creation of a "new privilege", contravening the 1705 resolution.

6.  Lord Mackay of Clashfern, in contrast, concludes that the House does possess the power to suspend its Members. He agrees with the Attorney General that Members are, by statute and by their letters patent, entitled to receive a writ of summons at the commencement of each new Parliament, and that the House cannot by resolution require that the writ of summons be withheld. However, he goes on to advise that implied within the writ of summons are certain conditions, in particular a requirement that Members respect the rules of the House; and the House must therefore possess a corresponding power to enforce its rules where necessary. He therefore concludes:

"The House's existing power to adopt the procedures necessary to preserve 'order and decency' includes a power to suspend, for a defined period within the lifetime of a Parliament, a Member who has been found guilty of clear and flagrant misconduct. I consider further that the exercise of such a power would not affect the rights conferred upon Members by virtue of their letters patent; rather it would affirm the conditions implied in the writ of summons, that Members must conduct themselves in accordance with the rules of the House." (Paragraph 38)

7.  Lord Mackay also advances a secondary argument, based on historical comparison between the two Houses. He concludes that the House of Lords, like the Commons "had in 1705 an inherent power, deriving from its status as a constituent part of the High Court of Parliament, to discipline its Members". His advice on this secondary point therefore leads to the same conclusion, that "any decision that the House may now take as to the means by which it imposes such discipline, for example by suspension, falls within the undoubted privilege of the House to regulate its own procedures." (Paragraph 54)

Conclusions of the Committee

8.  We have carefully considered the advice of the Attorney General and Lord Mackay of Clashfern. We are unanimously in agreement with the advice of Lord Mackay, and accordingly invite the House to agree the following conclusions:

·  The House possesses, and has possessed since before the 1705 resolution, an inherent power to discipline its Members; the means by which it chooses to exercise this power falls within the regulation by the House of its own procedures.

·  The duty imposed upon Members, by virtue of the writs of summons, to attend Parliament, is subject to various implied conditions, which are reflected in the many rules governing the conduct of Members which have been adopted over time by the House.

·  The House has no power, by resolution, to require that the writ of summons be withheld from a Member otherwise entitled to receive it; as a result, it is not within the power of the House by resolution to expel a Member permanently.

·  The House does possess the power to suspend its Members for a defined period not longer than the remainder of the current Parliament.

9.  The procedure for imposing a suspension should in due course be set out in a new Standing Order; the wording of the Standing Order would be a matter for the Procedure Committee. However, we emphasise that the function of Standing Orders is not to confer new powers, but to describe the rules and procedures governing the use of existing powers; the lack of a Standing Order does not prevent the House from exercising its existing power to suspend its Members in the interim.

10.  It will also be for the Procedure Committee to consider and report in detail on the practical implementation of any suspension. In outline, we expect that following any suspension the Member concerned would be required to withdraw from the precincts immediately, and that he or she would then be barred from the precincts for the duration of the suspension. This would be consistent with the procedures adopted by the House of Commons.

1   HL Deb., 26 January 2009, col. 10. Back

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