APPENDIX 1: MEMORANDUM BY THE ATTORNEY
GENERAL
Rights of Peers
1. The appointment of life and hereditary peers[2]
to membership of the House of Lords is now set out in statute.
The Life Peerages Act 1958 confers a power on the Crown to appoint
life peerages by letters patent. Hereditary peerages are generally
created by letters patent and the House of Lords Act 1999 limits
the number of hereditary peers who may be members of the House.
2. The Life Peerages Act 1958 entitles a life peer
to receive a writ of summons to attend, sit and vote in the House.
The letters patent also provide that a peer "may have, hold
and possess a seat, place and voice in the Parliaments".
A hereditary peer is entitled to receive a writ of summons in
accordance with the case of the Earl of Bristol[3].
3. A person who is disqualified by law is not entitled
to receive a writ of summons. Most disqualifications are statutory—aliens,
bankruptcy, treason and mental health[4].
Persons under 21 are disqualified from sitting under the common
law (set out in the Standing Orders). Erskine May refers to disqualification
by sentence of the House but concludes "that a resolution
of the Lords as a legislative body could not exclude a member
of that House permanently." The Committee is considering
whether there is a further disqualification recognised under the
laws and customs of Parliament to allow for the suspension of
a member in the event a complaint against that member being upheld.
Powers and privileges of the House of Lords
4. The House of Lords has a number of powers and
privileges under the laws and customs of Parliament. In particular,
the House enjoys the privilege to the exclusive cognizance of
its own proceedings—the House is the sole judge of the extent
of its own powers, the validity of its own proceedings and the
sole interpreter of its own privileges. The courts have no power
to interfere even in relation to matters prescribed by statute[5].
This does not however mean that the House has unfettered power—it
must exercise its powers lawfully.
5. Importantly the House has limited its own powers.
In 1704 both Houses resolved and agreed that "neither House
of Parliament hath any 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"[6].
6. The House has the power to control its own procedure
and this allows the House to change its rules (as set out in its
Standing Orders) to adapt to modern requirements. However, that
power is limited—the House cannot erect new privileges for
itself.
7. The House also has the power to punish members
by reprimand, fine or imprisonment. This was confirmed by both
the report by the Select Committee on the powers of the House
in relation to attendance of its members[7]
("the 1956 report") and the report by the Joint Committee
on Parliamentary Privilege[8]
("the 1999 report"). However, some doubt has been expressed
how far in practice the penalties of imprisonment or fine could
be invoked today[9].
Power to exclude or suspend?
8. The question of whether it would be lawful for
the House to suspend a member on the grounds of misconduct has
not been considered in any detail by the House or by any of its
Committees. The question of exclusion has however been considered
on several occasions and may provide helpful guidance:
9. First, it was argued during the debate on the
House of Lords (Discontinuance of Writs) Bill in 1889 that the
House had exceeded its powers on the only two occasions when it
had excluded members from sitting—in the 1620s Lord Chancellor
Bacon (Viscount St. Albans) and the Earl of Middlesex were impeached
for corruption, also fined and imprisoned—and it was argued
that the House had no power to expel a member for misconduct[10].
However, it was suggested that the House may have an inherent
power, similar to that of the House of Commons, to expel members
who bring disgrace and discredit upon it[11].
10. Secondly, in the 1956 report the Select Committee
concluded that any proposals which amounted to the exclusion or
partial exclusion of a peer from the House would not be in the
power of the House. The Clerk of the Parliaments, in submitting
his evidence to the Joint Committee on Parliamentary Privilege
in 1998, relied on the 1956 report to conclude "the Lords,
unlike the Commons, have no power to expel a member for contempt.
Nor do they have power to suspend a member"[12].
11. Finally, in the 1999 report the Joint Committee
concluded that the House does not have the power to suspend a
member permanently and that it was not clear whether a member
could be suspended within a single Parliament.
Conclusion
12. I note that the House and the various committees
have consistently taken the view over a long period that the House
does not have the power to expel a member or disqualify a member
from sitting permanently. On balance, I agree with this view:
a) The precedents from the 1620s are not helpful
in that they involved the House exercising its judicial powers
in relation to impeachment which has fallen into disuse[13].
They also involved serious criminal offences—there are no
precedents for disqualification relating to relatively minor misconduct.
In any case, the House has consistently challenged and questioned
whether it ever had the power to expel these members.
b) The exclusion would interfere with the rights
of a peer conferred by the Crown by letters patent and the writ
of summons to attend, sit and vote in Parliament. This would exceed
the powers of the House to regulate its own procedures as it would
amount to the creation of a new privilege contrary to the 1704
resolution.
c) While it might be reasonable to expect the
House to have similar powers to the House of Commons to exclude,
it is clear that the two Houses have always enjoyed different
privileges reflecting the history and differences between the
Houses.
13. The issue of suspension is less clear. It has
been suggested that the reference in Erskine May that there is
no power to exclude permanently leaves the question of
temporary exclusion open. It has also been suggested that if the
House has the power to imprison then it must have the lesser power
to suspend a member. However, there is no precedent—the
House has never purported to suspend a member—and in the
1956 report the Select Committee concluded that the House had
no power to partially exclude a member.
14. 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. Accordingly, it is my view that,
if a power to suspend a member for misconduct is sought, the safer
course is to create a legislative framework to confer such a power
on the House.
15. It should be noted that the House nevertheless
has significant powers to punish a member found guilty of misconduct.
The power of the House to regulate its own procedures would allow
the House to resolve that the member concerned be reprimanded
or admonished. The House could also resolve that the member be
invited to take a leave of absence for a specified time. In my
view, such a resolution is likely to be effective in ensuring
that the member did not attend the House.
BARONESS SCOTLAND OF ASTHAL QC
9 February 2009
2 This memorandum does not consider the position of
Lords of Appeal nor the Lords Spiritual. Back
3
Journals of the House of Lords: volume 3: 1620-1628 (1802) 544. Back
4
See Erskine May (23rd Edition) pp48-50. Back
5
Bradlaugh v Gossett [1883-84] 12 QBD 271. Back
6
Journals of the House of Commons (1702-04) 555, 560. Back
7
HL 67 (1955-56). Back
8
HL 43 (1998-99). Back
9
There is a separate issue as to whether the exercise of any penal
powers, including any power to fine or imprison, would be compatible
with the European Convention on Human Rights. However, given my
conclusion that there is no power to exclude or suspend, I do
not consider that issue in this memorandum. Back
10
Hansard, 3rd series, Vol. 334, col. 333-364. See col.
334-6, 347. Back
11
Ibid col. 357. Back
12
HL 43 - II, p.58, paragraph 19. Back
13
Erskine May (23rd Edition) p.73. Back
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