Examination of Witnesses (continued)|
THURSDAY 14 OCTOBER 1999
CHAIRMAN: This is what is said in the headnote
but what matters during the period is to be found in the journals
of the House, not in the writ itself.
LORD HOPE OF CRAIGHEAD: It is an interesting
example, this case of a court being asked to determine a question
about membership of one of the Houses of Parliament. I suppose
the way the court came in is because the question turned upon
the construction to be placed upon an Act of Parliament?
MR BELOFF: Yes, it did, otherwise, my Lord,
that might have been a question of interference with the privilege
of the House. Nonetheless I used it simply to underscore in another
context the distinction we say is fundamental to this question.
I think, my Lords, I have dealt already with
this, but your Lordships will see in paragraph 20 another facet
of the same theme, that there are two types of penalty, one for
failing to obey the writ and the other for departing without licence.
I think your Lordships actually have open at the moment Volume
IV, so perhaps I can show your Lordships very quickly part of
a classic work Palmer on peerage law, tab 62, 1195. Between pages
1200 and 1201 of the bound volume your Lordships will see that
the author deals with a duty of a peer to attend on the summons
and that deals with that obligation and the penalty of amercement
or otherwise for failure to comply with it, and then he cites
from Coke, just above the heading "Disqualifications",
a discrete penalty for departure from Parliament without licence
which is something separate from non-attendance. So we say again
that reinforces the structural cleavage that we have sought to
If your Lordships look, finally, at the supplementary
authorities, tab 8there is always a tendency to test whether
these are not only antique but obsolete propositionsas
far as this is concerned, in evidence or a memorandum that was
supplied your Lordships will see at tab 8, page 84, it is the
Select Committee on the Powers of the House in relation to the
Attendance of its Members. This is 1956, earlier this century,
and your Lordships will see it is the then Attorney-General, subsequently,
of course, Lord Chancellor, as Viscount Dilhorne, then Sir Reginald
Manningham-Buller, accompanied by Mr Squibb, page 102. This was
the memorandum supplied by the Attorney-General and junior counsel
to the Crown in peerage matters and they, as your Lordships will
see, cite again from Coke at page 102, the very passage that I
referred to in distinction between the penalties for non-attendance
in the sense of not making a return to the writ, on the one hand,
and absence from the House when one is participating or should
be participating in its affairs, on the other. So that, although
these propositions are ancient in origin, they appear to have
Your Lordships then see that the argument that
we advance is that this Bill must be analysed in accordance with
the rules of construction that we have contended for, in a manner
that not only would deny to wholly general words the abdication
or abrogation of historical constitutional right but also would
attach significance to words that carry with them a weight of
historic meaning and carry with them a sense of particular incidents
but limited incidents, and it is against that background that
we draw your Lordships' attention once again to the text of the
bill, which you have in the Appendix in the incarnation in which
we are discussing it at page 55.
My Lords, may I pause for a moment just to remind
your Lordships of what I said in answer to my Lord, Lord Campbell
of Alloway in relation to the allegation of retreat or abandonment.
The opinion of Mr Lofthouse, my junior counsel, that is, as it
were, the casus belli as far as this reference is now concerned,
is to be found at page 81 and following of the bundle and it is
actually useful, if I may respectfully say so, if one looks briefly
at it in any event to see what is there, what survived and what
cannot survive subsequent amendment in the course of the passage
of the bill through the House.
What Mr Lofthouse there focused on was the existence
of the bill without the so-called Weatherill amendment. He analyses
and sets out clause 1 and clause 4, which are now clause 1 and
clause 7, at paragraph 2. He says in paragraph 3 that clause 7
is ineffective to change the law because he points out that under
strict law one is not a member of the House of Lords by virtue
of a hereditary peerage: one is a member of the House of Lords
by obedience to a writ of summons, and he points out, indeed,
as is uncontroversial, as I have already made clear, that certain
hereditary peers are disqualified and accordingly could not be
members in the sense of participating in the affairs of your Lordships'
House, and against that background he goes on to say in paragraph
7 that an hereditary peer who sits, if he were asked, "By
what right do you sit here?" ought, if he were faithful to
constitutional usage and legal analysis, to say, "Not because
I am a peer but because I have received a Royal command contained
in a writ of summons and I came in obedience." Mr Lofthouse
says that true it is that his status as a peer confers the right
to call for a writ but the fact is that he has to make return
to the writ before he enjoys the right to participate in the House,
and he goes on to say the writ is the crucial element and he refers
to certain cases that I troubled your Lordships with before the
The reason that, when the Weatherill amendment
was made, it was no longer possible to say that clause 1 was in
effect a meaningless clause, was because clause 2, being then
the Weatherill amendment, made an exception to a general exclusion,
and if there were no general exclusion there could not be any
exception. So Mr Lofthouse realistically said we will have to
accept that paragraph of clause 1 is a summary, inelegant and
inaccurate way of seeking to attain certain objectives and we
must now concentrate on the manner in which those objectives have
or have not been attained by concentration on the bill in its
I will come, as your Lordships have already
teased out of me, to the substance of the argument in a moment
but I merely point out hereI hope not unfairlythat
there is again a certain ambiguity in the Government's approach
as to whether or not clause 7 has any independent value, whether
it was necessary at all, whether it was, as lawyers, say, ex
abundanti cautela or for some other purpose.
If your Lordships go to the Government's case
your Lordships will see why I suggest that there is an almost
inherent tension in their position or uncertainty in their position.
At page 33, paragraph 30, sub-paragraph 1, they say that clause
1 is in completely general terms, to which my answer is the principle
of legality, but they then go on to say in paragraph 31: "Clause
1 is also in very clear terms: once the right to be a member of
your Lordships' House by virtue of a hereditary peerage has been
abolished (from the end of the Session in which the Bill is enacted),
no hereditary peer will be a member of your Lordships' House (unless
made a life peer or excepted under clause 2). This means that
no such hereditary peer will, from that time, be entitled to participate
in the deliberations and votes of your Lordships' House."
So at that stage it is said that that is clear.
At paragraph 31, at page 35, it says: "Further, clause 7(2),
together with clause 7(1), confirms that all hereditary peers
who receive or have received a writ of summons issued for the
present Parliament (whether that writ of summons has been answered
to or not) will cease to be entitled to sit in your Lordships'
House .... " So what is at any rate thought to be very clear,
nonetheless at this juncture appears to require confirmation,
and then finally it is described now not as confirmed in paragraph
34, just further down the page, but as a provision which is supplementary
to the operation of clause 1. Either clause 1 is effective in
itself or, we respectfully submit, it is not. The moment the Government
choose to introduce amendments that relate to clause 1, one is
entitled, in our respectful submission obliged, to consider, as
it were, the full package.
Then may I take your Lordships to the way in
which we deal with this and take your Lordships back to our written
submission at paragraph 12. Your Lordship will see that I have
somewhat re-ordered the order so that the fact that we are retreating
is, as it were, in order to facilitate, rather than to go back
to square one.
Perhaps I could take your Lordships to 11 rather
CHAIRMAN: Do not forget, we have read it more
MR BELOFF: Your Lordships will see that we accept
that clause 1 has a general objective, but we point out that it
does not deal with the matter. It deals with the future composition
of the House associated with clause 2 but says nothing about the
means by which or the time by which such reformed composition
is to have effect. So that is why, we would respectfully submit,
it was indeed necessary to have supplementary provisions.
Then we say that the question of the how and
the when is dealt with in clause 7, described as "Commencement
and Transitional" and we say that it states the mechanism
and timing of the removal of the hereditary element. The effect
of clause 7(1) is that it comes into force at the end of the session
in which it has passed the Bill. Thereafter no one is entitled
to call for a writ of summons in right of an hereditary peerage,
unless excepted under clause 2. We use the metaphor the drawbridge
is pulled up at that time.
At clause 2 we return to the heart of the matter,
i.e. writs issued for this parliament shall "not have effect
after" the relevant session, and we say that the provision
can only impact on those writs which have not yet had effect.
So on its face it inhibits for the future and it is not trying
to cancel for the past and we say that legitimately it should
be construed as preventing any hereditary peer who has received
a writ but not answered it from taking his seat after the end
of the session, that is unless he is a Weatherill peer.
Since the Bill must be read as a coherent whole,
we submitand this is the point that I made in answer to
my Lord, Lord Nichollsthat clause 7(2) must be construed
as explanatory of and consistent with clause 1. So we say, looking
at it in that way, clause 1 excludes peers who have taken their
seats from future Parliaments. The argument does not tend to the
conclusion that the hereditary element, Weatherill peers aside,
is not going to be abolished in due course, the question is from
when. It will also exclude from this Parliament any peer who has
not received a writ of summons before the end of the session and
clause 7(2) prevents any peer who has received a writ of summons
but has not taken his seat before the end of this session from
thereafter becoming a member of this House, unless he is a Weatherill
peer. We say there is no reason not to give it this more limited
construction because in effect it is a way of achieving, albeit
in stages, the overall objective of the Bill as set out in its
long title, the abolition of the hereditary element in the House
At paragraph 50 we point out that if we have
established to your Lordships' satisfaction what we say are the
hallowed incidents of a writ of summons and the different consequences
attached to the issue of a writ on the one hand and the obedience
thereto on the other, then that must, in the way in which these
matters are debated, be taken notionally to have been in the mind
of the draftsman and recognised in the precise language that was
deployed. Clause 7(2) does not adopt any clear formula to eliminate
the distinction between the effect of a writ of summons on the
one hand and the duty to remain in parliament after obedience
thereto on the other.
CHAIRMAN: You say in paragraph 11 that "a
purposive approach leads to the construction that in consequence
of clause 1, no one shall be entitled to a writ of summons ...
nor be obliged to answer one." The result of this reference
depends on what we think of clause 7(2)).
MR BELOFF: Yes, my Lord.
CHAIRMAN: At the end of the day, the rest is
peripheral, backgroundno, that is too strong, but it is
7(2) which is the heart.
MR BELOFF: Yes, but you have to understand what
lies beyond 7(2) in terms of constitutional law in order to give
any meaning to it.
LORD NICHOLLS OF BIRKENHEAD: Is it right that
it all depends on whether or not, after a writ has been issued
and acted upon, it continues to have any effect?
MR BELOFF: Yes.
LORD NICHOLLS OF BIRKENHEAD: It is just that
narrow point? You say it does not and the Government say it does.
MR BELOFF: Absolutely so. We say it has exhausted
its effect once it is returned to. They say it colours everything
that happens after it has been issued.
LORD NICHOLLS OF BIRKENHEAD: So if after this
Bill becomes law, if it does become law, in the next session a
member is asked, "What right do you have to sit here?",
I understand the answer of the hereditary peer would be, according
to Mr Lofthouse, "By virtue of a writ of summons" and
the Government would then say to him, "Oh, you cannot rely
on that because that writ of summons no longer has any effect",
and you say, "Well that is now (functus officio)", to
use a language we are no longer allowed to use? It is that narrow
point, is it not?
MR BELOFF: Yes. Your Lordship attributed an
analysis to Mr Lofthouse. I think the way that he put it on Lord
Mayhew's behalf is that if the question were put to a hereditary
peer after the enactment of this Bill in the form in which it
presently is and not being a Weatherill peer, "By what right
do you sit in this House?", he would say, "I received
a command from Her Majesty in the form of a writ of summons. I
obeyed that command. I made my return to the writ and you are
unable to point to anything in the legislation which deprives
me of the rights that I derive from having made that return."
CHAIRMAN: During this Parliament?
MR BELOFF: Yes. Of course, he would also say
"my brother peer who received a writ on the same day but
chose not to make a return is the victim of the legislation".
It is as short a point as that.
My Lords, I think we summarise it in paragraph
21, where we say clause 7(2) merely removes effect from writs
of summons. The only writs of summons which could still have effect
qua evidence of entitlement to sit are those which are
unanswered. Writs of summons which are answered are spent as to
their effect. As to their effect, we accept that clause 7(2) must
be given useful purpose. Otherwise the conventional presumption
against redundancy would be affected. It does give us a useful
purpose because without it the holder of an unanswered writ would
be in doubt. He has the writ, he has the summons: is he still
able to, should he still answer it? Clause 7(2) shows that he
would not have the right or, indeed, the duty and its very existence
indicates that those who draft the legislation are not satisfied
that clause 7(1) by itself would prevent a peer in possession
of an unanswered writ of summons from being admitted to the House
or absolve him from the obligation of coming. Clause 7(2) puts
that matter beyond doubt and we sayand this comes back
to the principle of legality, the inability of reliance on general
wordsthat there is on the face of the Bill something special
about those who received writs to this Parliament. Clauses 1 and
7(1) do not affect them without more, clause 7(2) makes that plain,
but by dealing only with those who have not answered their writs
it makes it plain, too, that those who have answered are not to
be ejected in mid-Parliament.
LORD HOPE OF CRAIGHEAD: I am puzzled by the
element of duty which you say flows from the writ, particularly
bearing in mind Parliament's point that right and duty are relative
to each other. If one looks at the writand I am taking,
for example, page 95 in the appendixthere is a command.
If I have followed your argument, the command seems to go no further
than to attend and to return the writ whereupon the duty is fulfilled,
but the command does talk about giving "counsel upon the
affairs aforesaid". What I do not understand is why the writ
should not have a continuing effect at least as far as the duty
is concerned, because the whole point of attendance at the parliament
is to offer such advice and assistance as the peer can in dealing
with the weighty matters referred to.
MR BELOFF: My Lord, we respectfully submit that
this must be read in the context of the obligation to attend on
a particular day and at a particular place. There is no doubt,
of course, that if you then obey that command and return the writ
you will thereafter be entitled/obliged to treat and to give counsel,
but that would be a consequence of obedience to the writ and not
merely because of the fact that you received the writ by itself.
That is how we put it.
LORD HOPE OF CRAIGHEAD: It seems a strange construction
of the writ of summons. I would have thought that all it is doing
is commanding the peer to attend and return the writ. Bearing
in mind the wording of both of these two documents, they both
seem to be looking at the state of affairs in the country and
the need for assistance in Parliament, which I would have thought
was a continuing state of affairs.
MR BELOFF: Yes, but, my Lord, if the return
is made as the writ commands the duty thereafter does subsist.
Obviously the writ, as I said at an earlier stage, is a necessary
pre-condition of the sitting and participation in affairs of the
House, but it is not sufficient. You have to make the return to
ensure you have either the duty or the entitlement. The language
of the writ, in our respectful submission, assists this rather
than the reverse together with the gloss and commentary of analysis
that has been placed upon it and the jurisprudence
CHAIRMAN: I thought the second writ, which is
the one issued during the existence of a Parliament, clearly contemplates
more than attendance on a day. It does not mention "on a
day", it says, "Parliament is sitting and you be personally
present ..." That rather suggests that some of us are to
stay for the duration of the Parliament.
MR BELOFF: Yes, the Parliament is no doubt in
session at that time, but nonetheless you cannot, without making
the formal return, have the subsequent right or duty.
CHAIRMAN: That does not necessarily limit your
obligation to turning up on one day.
MR BELOFF: No, I would accept in relation to
that particular writ that it does not do any advance to my argument
that there is a stage in between that cannot be omitted which
is the making of a return to the writ which then generates the
CHAIRMAN: That does not deal with this particular
point. The fact is you have to make a return. If you make a return
then you would still have an obligation to stay for the duration
of the Parliament.
MR BELOFF: Yes, but what is the source of your
obligation to stay? The Government say it is the issuing of the
original writ and we say it is the attendance or return of the
writ. Sir William Anson makes the distinction better than we can.
CHAIRMAN: Most of the other cases are talking
about what creates the peerage. It is the return to the writ and
getting your name on the Journals of the House which establishes
your peerage, not in a sense your obligation to
MR BELOFF: That is only because many of the
older cases are dealing with what is now an obsolete matter, that
is the actual creation of peerages by return to the writ, but
they make crystal clear the fact that the mere receipt of the
writ is inefficacious without the return to it. We say the analogy
is perfect because they are both dealing with writs of summons.
In relation to Sir William Anson, he is not
concerned with the creation of peerages, as your Lordship sees,
that occurs in the chapter dealing with the assembling of Parliament.
He is quite clear that he is dealing with the right and obligation
to sit and participate, not to be created a peer in the first
CHAIRMAN: We shall have to see what Mr Attorney
says about that. What is the next point?
MR BELOFF: I know what he thinks about it. The
question is whether he is right in what he thinks.
Your Lordships pressed me and I accepted the
invitation to show your Lordships the form that has been used
by the draftsman in removing rights from previous peers and I
simply drew your Lordships' attention to the fact that we say
that on true analysis they recognise that it is necessary to assault
or attack not only the issue but the right to sit and vote which
we say is separate from the rights accidental on the issue and
we therefore say, in short, that precedent suggests that it is
not adequate to do it in the abbreviated way that the Bill seeks
to do and we put that point at paragraph 25, which says: "It
is submitted that parliament would not so consistently have legislated
to deal with both limbs if it were not necessary to the object
of excluding a peer. The inclusion of one limb here, and omission
of the other, means that the essential parliamentary machinery
for ejecting a sitting peer has not been set in place; whatever
the Government's intentions, it has not taken steps to implement
At paragraph 26, which he know that your Lordships
have read, we add an argument from practicality. We say that it
is much more convenient to know, if there is going to be an expulsion
in mid-Parliament, who would actually be affected. There is not
going to be any debate about whether certain particular individuals
are or are not hereditary peers. One will simply know those who
have made the returns and those who have made the returns can
stay for the duration of Parliament. Those who have not made the
returns have still got their writs but they must hang them on
the walls of their baronial castle or otherwise.
At paragraph 27 we round up the submission by
stating that this makes good constitutional sense, it creates
certainty and of course it does not mean that the large group
are going to be without the right of having voted for the Parliament
in the last election and no longer have the right to direct participation
in the affairs of Parliament for the balance of the Parliament.
I will come back to this very briefly when I deal with the point
of the European Convention on Human Rights. As your Lordships
will have noted from 7(3) and 7(4), there is a contemplation that
the conferment of rights of holders of hereditary peerages (excluded
now from the House of Lords) to vote at elections in the House
of Commons or the European Parliament is going to be the subject
of transitional provisions which we say fits nicely with the analysis
that we have made, that is that this is actually on objective
analysis a staged process and the virtue, therefore, of having
7(3) is that it entitles the Secretary of State to match the conferment
of a right to vote upon those people who are at that particular
stage deprived of the right to participate. I refer on the one
hand to one House and on the other to the other.
Paragraphs 28 and 29 deal with clauses 4 and
clause 2; they are negative propositions. We simply say they do
not affect the argument for the reasons we there set out and it
is done by potential way of response. I will not trouble your
Lordships with them now since you have read them.
LORD NICHOLLS OF BIRKENHEAD: Clause 7(2) says
that the receipt of a writ of summons gives an entitlement to
a recipient. On one reading perhaps it entitles the recipient
to attend Parliament and to sit and vote throughout that Parliament.
Would you accept that?
MR BELOFF: If that was so.
LORD NICHOLLS OF BIRKENHEAD: It has to be acted
on, of course, but it gives an entitlement to attend and sit and
vote throughout the Parliament.
MR BELOFF: Bracket, if acted upon, close bracket.
I can accept that as long as your Lordship does not then say but
then the logical conclusion must be that the reference to issue
a writ colours the whole
LORD NICHOLLS OF BIRKENHEAD: No, no. If that
is the scope of the entitlement, why should not 7(2) have the
effect of cutting it down?
MR BELOFF: We say that the entitlement that
is derived from the issue of a writ of summons and the receipt
of a writ of summons is to make the return and that thereafter
any rights that are derived to participation in the affairs of
the House are the consequence of that return and, therefore, although
the issue of a writ is a sine qua non, it is not a sufficient
condition of participation in the affairs of the House and if
that be right, merely to attack the rights of those to whom the
writs have been issued, it is inadequate to take away the rights
of those who have made a return. I do not disguise the fact that
it might be possible to seek to construe 7(2) in a manner which
said we are cutting it off at source and did not need to do anything
thereafter. I respect that that is a possible analysis. It is
not one that I accept.
LORD NICHOLLS OF BIRKENHEAD: Not at source,
MR BELOFF: Mid-stream if your Lordship is saying
peerage is source, yes.
LORD NICHOLLS OF BIRKENHEAD: The writs in the
ordinary round have all been issued, they were issued in 1997
and with them they carried the entitlement that we have just discussed.
There then comes along a statute that says, in the middle of Parliament,
they are not going to have that effect, they are only going to
have effect until the end of the present session. Can you help
me on that?
MR BELOFF: If one pursues the riverine metaphor
it may be helpful, my Lord. I would suggest that the interposition
of the return is equivalent to a lock in the canal. In other words,
if you start off again thereafterthat is the way I am putting
it. I do not think it is adequate as far as the Government do,
but it all started with the writ and therefore to attack the issuing
of the writ inevitably involves attacking everything thereafter.
That is only if the rights that they are seeking to attack, the
right to participate membership, depends only on the writ. If
it depends upon the writ plus they must attack the writ plus.
They have not done so.
LORD NICHOLLS OF BIRKENHEAD: Thank you very
much. I detained you. You were about to turn to human rights.
CHAIRMAN: I think this is all terribly relevant
to what we were saying earlier about the wording of the two writs.
The writs really do intend that members of the House should stay
in place during the Parliament.
MR BELOFF: Yes, but, my Lord, nonetheless, the
form of the writs has been considered over the centuries and the
necessity of the return as a discrete intervening act has been
well recognised and there is nothing in the form of the writs
that detracts, we would submit, from that.
My learned junior, who is always conscious of
my omissions, suggests that your Lordships have not seen sufficient
of what I call the deprivation legislation, but I think I did
show to your Lordships the Appellate Jurisdiction Act, I think
we looked at the Peerage Act and I think we have looked at the
Bankruptcy Act and I think that gives your Lordship a flavour
of what we call the double-barrelled element. The others are merely
CHAIRMAN: If he blames you for omitting something
then you can blame me because I am discouraging you from going
MR BELOFF: And your Lordship is in no doubt
that that is precisely what I shall do.
The European Convention on Human Rights I can
take relatively shortly. There is an interesting stance taken
in the Government's case at 10(5), page 25, where they say with
theoretical force that legislation in this country may be interpreted
in a different way by a court considering before 2 October 2000
or after. That, my Lord, we accept, but we do not understand and
we trust that on Lord Mayhew's behalf it is not the position that
it is seriously being contended that this House ought to pass
legislation of this character offending against the European Convention
on Human Rights and in breach of international obligations to
which Her Majesty's Government are party. That is the first point.
Secondly, we draw attention to the fact that in accordance with
the modern practice, the Leader of the House has made a statement
which your Lordships see at page 53 of the bundle, to the effect
that the provisions of the House of Lords Bill are compatible
with the Convention rights. So we are going to invite your Lordships
to consider this on the basis that, if we can establish a Convention
is otherwise relevant, your Lordships should test the propriety
of what is proposed in legal terms by reference to its precepts.
My Lord, what is the approach that one takes?
The penultimate authority to which I will refer
your Lordships is the ex parte Brind case in volume iii,
tab 47. The controversial issue at the time was whether or not
there should be live broadcasts with suspected terrorists. It
is Lord Bridge of Harwich giving the leading speech in your Lordships'
House in the Appellate Committee. It is at pages 747 to 748, page
812 to 813 of the bound volume. I read no more than two sentences,
against letter H: "But it is already well settled that, in
construing any provision in domestic legislation which is ambiguous
in the sense that it is capable of a meaning which either conforms
to or conflicts with the Convention, the courts will presume that
Parliament intended to legislate in conformity with the Convention,
not in conflict with it." Your Lordships may, having regard
to the lateness of the hour, just care to note that the Court
of Appeal, at any rate, has already suggested that one should
show peculiar sensitivity to the imperatives of the Convention
now it is on the Statute Book although not yet in force. The reference,
perhaps just for any note your Lordships care to take, is in a
case dealing with wrongful detention, a case called ex parte
Evans, which is 1999, the second volume of The Weekly Law
Reports, 103 at page 109 and 117 in the judgment of Lord Woolf,
the Master of the Rolls.
With that I turn back to the way in which we
put the matter in our case by firstly, I think, taking your Lordships
to the jurisprudence in the Convention which I believe we have
summarised accurately. Are your Lordships anxious that I conclude
CHAIRMAN: I think it would be very convenient
if we can because we have another reference to follow after this
MR BELOFF: I understand, in which case I shall
do my very best. I think the best way of dealing with it is this.
I have given to your Lordships the references in paragraph 31
to the Articles of the Convention. Again for your Lordships' marginal
note, if you wish to study them at your leisure, it is bundle
iv and tab 66. I have given your Lordships a reference to three
of the authorities in the European Court of Human Rights that
bear upon these particular provisions. The Matthieu, Mohin
and Clefayt case is at volume iii, tab 45. The case of W,
X, Y and Z v. Belgium, which is referred to over the page
at page 18, is at tab 44 of volume iii. Gitonas v. Greece
referred to at the end of paragraph 32 is tab 3, page 50; and
Matthews v. United Kingdom, which was a recent case involving
the inability of citizens of Gibraltar to vote in European elections,
is at tab 4 at page 54. The other passage of Evans I wish
to refer to is at 115, between letters C and D.
We say that the analysis of the two Articles
that we have cited is accurately set out in paragraph 32 and we
have given your Lordships the reference to the paragraphs from
the Belgian case which support those propositions. The Article
gives rise to individual rights. The nature of the rights enshrined
in Article 3 includes the right to vote and the right to stand
for election to the legislature. Any conditions which limit the
right must not curtail the rights in question to such an extent
as to impair their essence: they must be imposed in pursuit of
a legitimate aim and must not apply disproportionate means. Such
conditions must not thwart the free expression of the opinion
of the people in the choice of the legislature and must protect
the principle of equality of all treatment of citizens in the
exercise of their right to vote and the right to stand for election.
One of the factors that has been held in the
Greek case that we referred to, Gitonas, as providing an
appropriate reason for denial of rights is the independence of
members of Parliament. This bore upon cases where persons holding
certain public office positions were disabled from standing for
office or freedom of choice of electors. Neither of those two
do we say are relevant in this particular instance. The only passage
I would like to show your Lordships is just the most recent case,
the Gibraltar case just three paragraphs from that in bundle iv,
tab 54 because this is, as it were, state of the art jurisprudence.
I would like your Lordships just to look at page 1079A and two
paragraphs on that page. It says at 63: "The Court recalls
that the rights set out in Article 3 of Protocol No.1 are not
absolute, but may be subject to limitations", and then they
set out the propositions that we have set out at paragraph 32.
At 64 it says: "The Court makes it clear at the outset that
the choice of electoral system by which the free expression of
the opinion of the people in the choice of the legislature is
ensuredwhether it be based on proportional representation,
the `first-past-the-post' system or some other arrangementis
a matter in which the State enjoys a wide margin of appreciation.
However, in the present case the applicant, as a resident of Gibraltar,
was completely denied any opportunity to express her opinion in
the choice of the members of the European Parliament. The position
is not analogous to that of persons who are unable to take part
in elections because they live outside the jurisdiction, as such
individuals have weakened the link between themselves and the
We respectfully submit, and I go back to the
point that I made at the outset, that for this group of peers,
however large it is, which is the area of dispute between the
Government and ourselves, they have effectively lost their rights.
They did not enjoy rights to elect the present legislature because
they had the balancing right to participate directly in the affairs
of the House. If that is taken away from them for the balance
of this Parliament then they are completely disenfranchised in
the sense recognised by the European Court of Human Rights and
that is a reason, we respectfully submit, for adopting a construction,
if it is otherwise available, that minimises the dimensions of
that group, i.e. limits it to those who have not returned the
writ that has been issued to it rather than take the Government's
enlarged submission that it applies to all to whom a writ has
been issued whether they have made a return or not.
The last point we would make is that that construction
is fortified if one looks at the face of the Bill in terms of
the right to elect members of the House of Commons or, as is said
curiously in the European Parliament, the powers vested in the
Secretary of State to make those transitional provisions. We make
two points on that. Firstly, one trusts that this is simply the
result of an unconscious ignorance of the status quo. Hereditary
peers currently enjoy rights to vote in European elections. As
we have said, it is the European Parliamentary Elections Act 1978,
Schedule 1, paragraph 2(1). Although I hope that this was not
intended on Lord Mayhew's behalf, the only sense on the face of
that provision is to confer upon the Secretary of State to take
away a right that is already enjoyed, but putting that on one
side, what has not been done in respect of rights to vote for
the future to the House of Commons by elections, if one happens
to be in an appropriate constituency, it has not been given right
away to all those persons who no longer have a right to participate
in the affairs of the House, it is being given to a member of
the executive to have the power to determine when such rights
should be conferred. We respectfully submit that it is wholly
inappropriate, if there is to be any kind of compensation in terms
of disenfranchisement in convention terms, that it should be given
to a member of the executive to determine when those rights should
be enjoyed rather than to confer them directly by primary legislation.
This, of course, is an ancillary point because the right to vote
for the future will only be a mitigating factor for that small
number of persons who will enjoy it in appropriate constituencies.
Our more fundamental point I return to is that there has been
a rupture of the bargain that was originally struck, you cannot
vote for the Commons because you can participate in the affairs
of the Lords and this group would be unique in lacking both for
the duration of this Parliament and the European Convention, as
interpreted, suggests that one should not, unless compelled to
do so for good and sufficient reasons, of which there is none,
put citizens of a Member State in that predicament.
My Lords, subject to any questions that your
Lordships have, I am four minutes before the bell.
CHAIRMAN: We are very grateful for your help.
Mr Lofthouse, do you wish to make any points?
MR LOFTHOUSE: My Lords, this may not be the
moment to do it. I do not know whether, if there were some matters
that perhaps I might wish to raise, your Lordships might hear
me on Monday. It may be that my learned friend
CHAIRMAN: I would rather you did it now. It
may be that four minutes is not long enough.
MR LOFTHOUSE: It would be too short.
CHAIRMAN: We must keep it fairly short on Monday.
Mr Beloff has gone through an enormous amount of material.
MR LOFTHOUSE: My Lord, I am not saying, I may
well be told not to say something, but I wanted to keep the option
open, that is all.
CHAIRMAN: We shall look carefully at Mr Beloff
as we leave! We will adjourn until 10.30 on Monday.
Adjourned until Monday next at half past