Opinion by junior counsel for the Lord
Mayhew of Twysden
1. I am asked to provide an Opinion on whether
the House of Lords Bill is likely to be effective to exclude hereditary
peers as a whole from the House of Lords.
2. Any consideration of this must concentrate
on two parts of the Bill: clause 1 and clause 4(2).
Clause 1 reads:
"No-one shall be a member of the House of
Lords by virtue of a hereditary peerage."
Clause 4 deals with commencement and transitional
provision. For present purposes, clause 4(1) provides that the
Act shall come into force at the end of the Session of Parliament
in which it is passed; then comes clause 4(2):
"Accordingly, any writ of summons issued
for the present Parliament in right of a hereditary peerage shall
not have effect after that Session."
Both clauses raise problems which can be understood
only by a careful consideration of peerage law.
3. Clause 1 does not change the law. This
is because nobody is a "member of the House of Lords"
by virtue of an hereditary peerage. Membership of the House is
conferred by obedience to a writ of summons. As we shall see,
this is no mere technicality.
4. Certain people, including hereditary
peers who fulfil certain requirements, are entitled to claim a
writ. The requirements are: holding a peerage of England, Scotland,
Great Britain, or the United Kingdom*, full age (21), not an alien,
not bankrupt, not disqualified for treason, and having proved
a right to a writ (sometimes a lengthy procedure).
[*Of course, United Kingdom peerages include
what are usually called English, Great Britain, Scots, or Irish
peerages: this is by virtue of the Act of Union, just as Scots
peerages are peerages of Great Britain; but I have used the less
accurate and less lengthy, but comprehensible, common terminology
5. Thus hereditary peers are a category
of persons some of whom are entitled to receive a writ of summons.
6. Once a person, whether a lord spiritual,
life peer, hereditary peer, or recipient of a writ of acceleration,
has received and obeyed a writ by coming to Parliament, and has
taken the oath or affirmed, then he is "a member of the House
of Lords" (an inelegant, newish, and inaccurate term) and
his right to sit cannot be challenged. The term "peer",
in its usage within the House, is instructive: demonstrating the
equality of those who sit in response to a writ: the motive for
the issue of the writ may differ, their degrees of dignity may
differ, but after answering the writ they are equals in Parliament.
7. This is not just semantics. If an hereditary
peer who sits be asked, "By what right do you sit here?"
the correct answer would be, "Because I received a Royal
Command contained in a writ of summons, and I came in obedience."
The fact that the reason the Sovereign caused the writ to issue
was because he was already a peer who was entitled to receive
a writ is nothing to the point: his status conferred the right
to call for a writ, but that very point, the right to a writ,
demonstrates that it is the writ, not the peerage, which gives
the right to come and thus to "be a member of the House of
Lords." See Halsbury's Laws of England (4th ed) Vol
34 (Reissue 1997), para 535.
8. Test the aptness of the "by virtue"
wording in this way: any subject may, if qualified, stand for
and, if pleasing to the electors, be elected to the House of Commons;
citizenship is the basic qualification. However, if an Act said,
"No person shall be a member of the House of Commons by virtue
of British citizenship", would that exclude all British citizens
from the House of Commons? Plainly not. It would simply make clear
that one cannot come to the Commons simply by saying that one
is a British citizen. Something else is required, including full
age, sanity, and so forth; plus election by the voters, being
returned by the Returning Officer, and taking the oath or affirmation.
This clause, the operative clause as the Government may think,
does no more for hereditary peers.
9. The writ is the crucial element. It is
so powerful that, if a person not already a peer (or elder son
of a peer with two or more peerages giving a right to a writ)
receive and sit in response to a writ, he becomes a peer ipso
facto, even, according to some, although I have strong doubts,
if the writ was issued in error. (See The Hastings Peerage
(1840) 8 C1 & F 144, The Barony of Grey of Codnor (1989),
and The Barony of Strange (1737) (discussed in Cruise
on Dignities (2nd ed), p 317).) The interposition of the writ
between the possession of the peerage and the right to sit is
thus no mere technicality.
10. If a writ were withheld (and it has
happened) a peer could not sit. All he could do would be to do
as the Earl of Bristol did when Charles I refused him a writ:
petition the House of Lords for them to ask the King to send a
writ. He could not just sit and "be a member of the House
of Lords by virtue of a hereditary peerage". This case amply
demonstrates the point. It is at (1626) 3 Lords' Journals 537,
11. I doubt if there really is such a thing
as being a "member of the House of Lords": there is
a right (or obligation) to sit and vote.
12. The only exception to the means of a
personal writ to secure attendance in the House of Lords was in
respect of the Scots Representative Peerage, where careful legislative
provision was made for their unique rights.
13. This is a curious provision. The Bill
waits until the commencement clause to approach the real issue.
One begins by noting that the "accordingly" is something
of a non sequitur: nothing that has preceded it justifies
14. To any writ there must be a "return"
(hence "returning officers" for the Commons). The return
to a peer's writ is his coming in obedience and sitting. A writ
has "effect" once a peer has sat; the writ is handed
in (and a line put across it I think). The writ is the order to
come, the ticket perhaps; it states the date of the Parliament,
at least in writs issued for a new Parliament. Once a peer is
in, he has made the "return" to the writ, and is entitled
and obliged to stay. Remember that the writ has its origins in
days when lengthy and virtually continuous parliaments were unknown.
One came, presented the writ, sat, and went home, until the Sovereign
next had need of advice or money or whatever. The same is true
today: the writ is spent once it has been returned. It is interesting
that Halsbury's Laws in the volume on Parliament has a
section headed "Issue and Return of Writs": Vol 34,
15. Compare a member of the Commons. He
is admitted by virtue of having been elected in obedience to the
writ, but once he has taken the oath, the "effect" of
the writ for his election is surely spent.
16. In Cruise on Dignities (2nd ed),
p 318, there is cited the printed case for the petitioner in the
Strange case in 1737:
"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"
Cruise says that the House of Lords "appears
to have acquiesced in this reasoning." (I think, incidentally,
that the future Lord Mansfield was one of the counsel who signed
the petitioner's Case.)
17. Lord Coke also has some interesting
material in his 12th Report, p 70, treating of baronies by writ
(where a person who is not already a lord of parliament is summoned
and sits, and thereby becomes an hereditary baron). He speaks
thus on the case of Edmund Nevil:
"And it was resolved by the Lord Chancellor,
the two Chief Justices, Chief Baron, and divers other justices
there present, that the direction of delivery of the writ did
not make him a baron or a noble, until he did come to the Parliament,
and there sit, according to the commandment of the writ; for until
that, the writ did not take its effect . . . [My emphasis.]
Now, although the "effect" there is
the creation, that passage provides some support for my clause
4(2) "effect" point. After sitting the writ's effect
ceases: it is no longer needed. The "effect" is to compel
attendance and grant admission to take the oaths. Coke also speaks
of the possibility until sitting of a "writ of supersedeas"
withdrawing the writ of summons. Plainly then supersedeas would
not be possible after the writ has had its effect by sitting.
18. The combination of the problems with
clause 1 and clause 4(2) is that the Bill might be construed as
excluding only those hereditary peers who had not spent the effect
of the writ by taking their seats by the end of the Session in
which the Bill is passed. The argument is: (a) clause 1 must mean
something, despite all the indications to the contrary; (b) clause
4(2) cannot by its wording operate to eject current "members
of the House of Lords": clear and different words would have
been necessary (as to the need for clear words, see paragraph
21 below); (c) the only writs which could still have "effect"
are those whose return is still outstanding; the effect is spent
for those who have responded to theirs; (d) therefore, clauses
1 and 4(2) exclude hereditary peers whose writ has not been acted
on by the end of the Session; (e) those peers who have taken their
seats in time remain until the end of the Parliament; (f) for
the next Parliament, all hereditary peers will be entitled to
fresh writs, which will not be caught by the present clause 4(2);
except that hereditary peeresses in their own right and Scots
peers will be excluded by virtue of the repeals of parts of the
Peerage Act 1963. Yet even the modest effect thus achieved by
the Bill could be only by the odd means of making a commencement
sub-clause the operative part of the Bill.
19. A vast source of helpful material on
the "by virtue of" and "effect" points is
in MacQueen's Report of the Debates on Life Peerage (the Wensleydale
peerage case). A copy is in the House of Lords Library.
Lord Cranworth, Lord Chancellor, at p74, said:
"That which gives every noble Lord his 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."
20. The crucial cases on the construction
of Acts relating to the right to sit and vote in the House of
Lords are Viscountess Rhondda's Claim  2 AC 339 and
The Barony of Farnham (1995). In Rhondda, the speech of
Viscount Birkenhead, Lord Chancellor, is very helpful. For instance:
"What then becomes of the suggestion that
the right to sit is not a right granted by letters patent? Literally
it is true. The letters patent require the supplement of a writ.
But they give a right to demand that writ, and impose an obligation
to receive it and to act upon it." [p 359].
Note that there is nothing in this Bill to reflect
the obligation of sitting.
21. Later Viscount Birkenhead said:
"The first point to note is the meticulous
care with which, whenever the Legislature has dealt with the right
or duty of attending in this House or voting for election to the
other, it has expressed its will upon the matter. So far as this
House is concerned, it is only necessary to refer to the elaborate
provisions relating to the rights and duties of Scottish peers
upon the union of England and Scotland in 6 Anne, c.11, and those
relating to the rights and duties of Irish peers upon the union
of Great Britain and Ireland contained in the Act of Union of
1800. It is worth noting also that, when power was given to create
life peers for the purpose of hearing appeals, their right to
a writ of summons to attend and to sit and vote in the House of
Lords was dealt with by express words, both in s.6 of the Appellate
Jurisdiction Act 1876 (39 & 40 Vict c 59), and in s 2 of the
Appellate Jurisdiction Act 1887 (50 & 51 Vict c 70)"
22. Thus it was held that an Act (the Sex
Disqualification (Removal) Act 1919), which provided that a person
should not be disqualified by sex or marriage from the exercise
of any public function or from being appointed to or holding any
civil or judicial office or post, did not enable a peeress in
her own right to sit and vote in the House of Lords. The Committee
for Privileges first held in Lady Rhondda's favour, the Attorney
General effectively conceding the point, but the House sent the
matter back, and a larger Committee held against her. The problems
encountered in Lady Rhondda's case should be a cautionary tale
for any Government seeking to amend peerage law.
23. In Farnham, very complicated
questions arose relating to the Act of Union with Ireland and
the 1921 Treaty and subsequent legislation. Putting it simply,
the Irish peers were entitled after the Union to elect 28 representative
peers; when any died there was a by-election. After 1922 no further
elections were held, but those already elected continued to be
summoned until they died. In 1966, in The Earl of Antrim's
Petition  1 AC 691, the House of Lords held that no
fresh elections could be held. The principal reason was that the
peers were to be elected to sit and vote "on the part of
Ireland", and that, since 1922, there had been no political
entity of Ireland on the part of which they could sit. Yet some
had continued to be summoned and to sit. One was Lord Farnham's
grandfather. Thus, Lord Farnham said: if there was no extant function
for his grandfather, his grandfather must have been sitting otherwise
than as a representative peer, and that, by the doctrine of barony
by writ, he had been created an hereditary baron of the United
Kingdom. However, he failed. Notwithstanding the end of the reason
for their presence in the House, it was held that they had been
elected for life under the Act of Union, and their continued presence
was referable to their election, not to a new creation by mistaken
summons. One sees from that that so strong and clear must be the
language to remove a peer from Parliament, that even peers who
were elected to represent something were not excluded upon the
extinguishment of that something.
24. It is true that there are passages in
Re Bristol South East Parliamentary Election  2 QB
257,  3 All ER 354, (decision of Election Court on Mr Benn's
election after inheriting the viscountcy of Stansgate) that go
the other way on the Writ point; but (a) they were unnecessary
to the decision, which was that it is the status of peer that
disqualifies, and thus obiter dicta; (b) they go against House
of Lords authority; (c) they are unconvincing. The judges' understanding
of peerage law appears weak: for instance, at  3 All ER
365, they appear unable to understand the remark of perhaps the
greatest peerage expert (Lord Redesdale) in the most important
work on peerage law (Third Report on the Dignity of a Peer, 1822;
reprints 1826 and 1829) about peers who have not "thought
fit to qualify themselves to sit and vote as lords of parliament".
The answer that would occur to anyone acquainted with the subject
is that it must be a reference to Roman Catholic peers, for whom
coming to Parliament would have meant taking a sinful oath, and
for whom claiming a peerage would have been fraught with danger
of drawing attention to themselves in time of persecution: cf.
Vaux Peerage Case (1837) 5 Cl & Fin 526 at p 564, and
Camoys Peerage Case (1839) 6 Cl & Fin 789 at p 819
to 821. Yet that lack of understanding coloured the judges' approach.
25. On a strict construction of the Bill,
it does not achieve the Government's objectives. The Government
may find, if it can secure the passage of this Bill, that it was
not worth the trouble. Putting it at its lowest, once it is in
force they risk facing petitions for admission and later for writs
of summons, possibly from many peers, and consequent uncertainty.
The Lord Chancellor's position may be particularly unenviable,
as he will have to determine whether his duty is to issue writs
to particular hereditary peers. At the very least, where there
is doubt, then the Bill is risky for the Government. The fact
that they think they know what they are trying to do does not
absolve them from the obligation of expressing it properly; if
they do not, and if ordinary canons of construction point against
their construction, they might not even be saved by asking a Committee
for Privileges to look at Hansard under the recent cases
such as Pepper v Hart  AC 593. They might be told,
"We know what you wanted. The question is whether you have
26. This is a difficult and complex matter.
Perhaps I may put it in this way: if the Government asks if it
can be assured that this Bill will work, the answer must be that
it cannot be so assured.
27. It may be that a Bill could be drafted
so as to be sure to achieve the Government's objectives. It would
need to be wholly different in concept from this Bill. The reality
may be that, without a total reform of the House of Lords, the
exclusion of any element is fraught with difficulty.
28. I should end by saying that no criticism
should be made of the draftsman: his instructions must have made
his task impossible.
2, King's Bench Walk, Temple, London EC4
14 April 1999