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Lord Kingsland: Before my noble friend responds, has the noble and learned Lord not considered the retrospective effect of Clause 4(2) on those who have received a Writ of Summons? They did not have a vote when they received this Writ of Summons, in return for which they sit here. If Clause 4(2) is passed, in my submission, and with the very greatest respect to the noble and learned Lord, its passage will not only contravene the European Convention on Human Rights as retrospective legislation; but it will also, in the great traditions of our own constitution, be unconstitutional.
The noble and learned Lord very kindly said that I got him going. If I achieve nothing else, that is a great achievement. To see the smiles on the faces of noble Lords opposite, and even on the face of the noble Baroness--which must be the first time since the Committee stage commenced--is a great achievement.
These are serious points and the Opposition have a right to put them forward. This is an alteration to the constitution. We may not agree with what is being done. There are plenty of people outside who say hereditary Peers should stay and that we should get rid of the life Peers. That is not a view that I necessarily hold. Certainly I would not subscribe to it in this House. However, such views are held and people are concerned.
Perhaps I may try to persuade the noble and learned Lord that despite all the fuss and brouhaha about life Peers versus hereditary Peers, which is a pretty disagreeable battle, we do want to try to help the Government in so far as ensuring that what gets on to the statute book is right.
I am glad the noble and learned Lord addressed the point regarding the Writ of Summons. He may well be right. We may think he is wrong. It is quite right for us to point it out to him and say, "Look, we actually think you're making a mistake. What a pity it would be if the Government were taken to court and were found to lose."
The fact is that many people have said, and the noble and learned Lord said this earlier, that everyone knows what the Government intend. I hesitate to say this to such an eminent lawyer when I have never even entered the portals of that profession--much to my regret--but when matters come to court, they are not decided on the big issues; they are decided on the minutiae and the detail. That is why it is right to get the details correct.
The manifesto, as we have heard so often--it has almost become a Holy Grail--spoke of the right to sit and vote in the House of Lords. But I pointed out that one of the effects of the Bill is that people of the eminence of,
For all those reasons Clause 1 needs looking at again. For the first time the noble and learned Lord shakes his head in assent, and I assume by that he means he will look at it again and for that I shall be grateful.
Lord Goodhart: My recollection is becoming a little hazy by now, but I feel that we had exactly the same debate the day before yesterday. I made a speech expressing my views on that occasion; I have no intention of pressing the replay button and delivering it again. And I express the hope that other Members of the Committee will follow my example.
Lord Henley: Perhaps I can intervene at this stage and other Members of the Committee can intervene after me in due course. I will try to follow the strictures of the noble Lord, Lord Northfield, and not make a Second Reading speech. In fact I intend to be very brief.
I greatly welcome the fact that the noble Baroness the Leader of the House will be responding to this discussion. I am sure that in the course of this debate she started off on her own without any advice from either the noble and learned Lord the Lord Chancellor or her noble and learned friend Lord Falconer, or even the noble Lord, Lord Williams--not that he is learned in the terms of this House--who seems to have been spirited out of the country. I dare say we will see him back in due course.
No doubt the Leader of the House has had some expert legal advice from her noble and learned friends and will be able to respond in due course. From my point of view I cannot respond as my noble friend the Leader of these Benches did the other day, starting off by saying, "Dealing with these arcane points of law". That was how he put it. He was not a lawyer. I am a lawyer, albeit not one of any eminence. I was called to the Bar, but sadly never proceeded any further. In the absence of the noble and learned Lord the Lord Chancellor, I am tempted to say that I would like to go further. I might even put in my application to take Silk at some stage and perhaps the noble Baroness will convey that to her noble and learned friend in due course.
Lord Henley: Those are points that need answering by the Government and we hope that the Government will answer them in due course, in particular those raised by my noble friend Lord Kingsland and my noble and learned friend Lord Mayhew dealing with retrospection. It is important that that specific question is dealt with.
Lord Peston: My remarks were intended to doubt that the noble Lord, Lord Henley, did not know much about the law. I assume when I make a similar remark that he really knows a great deal about what he is saying.
Lord Henley: I hope that the noble Lord will pass that back to his noble and learned friends and perhaps they will view my application for Silk in due course with some consideration. The fact that I do not practice will probably count against me but, similarly, I make no criticism. In fact, I have never made criticisms about the noble Lord as an economist, but we can discuss that in other debates.
What little law I do know suggests that a certain number of questions have been raised and we must consider whether it is enough that the noble and learned Lord the Lord Chancellor simply declares that what he says is what the Bill means. However loud and however often he says that, it does not take the doubt away from many on this side and from those who have written learned opinion on the subject. We have heard, both inside and outside this Chamber, that expert opinion exists. We heard from the noble and learned Lord the Lord Chancellor that he has a lack of readiness to look at arcane questions of peerage law. However eminent the Lord Chancellor is, how can he be so sure that he is right and others, even if they are not Queen's Counsel, such as myself, or the drafter of this opinion, are wrong?
I hope for his sake that the noble and learned Lord is right. If not, when the law is challenged and found wanting, I suspect he will be like that unfortunate young man in the Edward Lear limerick, which I am sure many noble Lords will remember:
Lord Grantley: I wish to support the plea made by the noble and learned Lord, Lord Mayhew, that this legislation should be correctly drafted. Many people have had the advantage of reading the opinion given by Mr. John Lofthouse, which was much referred to on previous occasions. The noble and learned Lord said that he had had the advantage of having known Mr. Lofthouse for 10 years in his capacity as standing counsel for the Treasury on peerage law. I have the advantage of having known him for 25 years since we were at Oxford together. He was a great authority on peerage law then and undoubtedly is a great authority, perhaps the greatest authority in the land today, in that respect. Therefore,
I am not a lawyer myself but I have had some regrettable experience of the law courts as a litigant. I can give Members of the Committee one example which I believe to be germane to the question of construction; indeed, I shall be extremely interested to hear the answer. Some years ago, in my capacity as a landlord of a house, I sought to terminate the tenancy of a tenant whose tenancy had come to the end of its contractual term. The tenancy had been granted when I was not the landlord but the resident beneficiary of a trust which was the landlord. The relevant Housing Act clearly intended that the resident beneficiary of a trust which was the landlord should have the same rights as a resident landlord. However, when the case came to court, I lost it because the legislation did not absolutely express that situation. In other words, what the court said was, "We know very well what the intention was, but that is not what the law says".
As I understand it, the response which the noble and learned Lord the Lord Chancellor has given to the questions very rightly raised by the noble Lord, Lord Trefgarne, and the noble and learned Lord, Lord Mayhew, is that it does not ultimately matter exactly how we have drafted it because everyone knows what the intention is. We do indeed know what the intention is but, for goodness sake, let us have it correctly drafted. I urge and beg the Government to consider very seriously the points that have been made in relation to the defective drafting of the Bill and to come back with a considered redraft, which at least gives proper effect to their clear intentions.
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