Examination of Witnesses (continued)|
MONDAY 18 OCTOBER 1999
CHAIRMAN: The Lord Chancellor in his speech
on 27 April seemed to think it could go to a court, but I am not
sure that he was really considering that there would be a right
to go to the court.
THE ATTORNEY-GENERAL: I think I spoke too exclusively
in immediate answer.
My Lords, I will be as brief as I can in my
It was contended by my learned friend, Mr Beloff,
that it was a fundamental constitutional right, as I understood
it, for hereditary peers to sit in the Lords. My Lords, I submit
it is not. If one looks at the context in which we presently attend
to these matters, this is, to use Lord Steyn's phrase, a liberal
democracy at the end of the 20th century, my Lords, therefore
the right to hereditary membership in perpetuity of a non-elected
second chamber is not a fundamental constitutional right.
If I develop that very briefly, because I am
aware your Lordships' time has been fully occupied, since the
Great Reform Act we say the tendency has been for the moral and
political authority to devolve to the Commons, not to remain in
the Lords. One does bear in mind the preamble to the Parliament
Act of 1911, and I give the reference only rather than reading
it, it is in Bundle 6 at page 1. Further, it is not without relevance
for consideration that since the Life Peerages Act of 1958 the
voting power of the hereditary peers has been subject to dilution
on a continuing basis in that more and more life peers have entered
your Lordships' House, which inevitably means a dilution in the
block power and the majority of the hereditary peers. So it has
been a shifting position. My Lords, it was put in that way originally,
then it was developed on a rather perhaps more attractive basis,
namely that there had been a constitutional bargain. My Lords,
the reference to this is found in the Case at page 17 of the pink
bound volume and perhaps I can go to it very briefly and I will
be as economic as I possibly can.
Page 17 of the pink volume, paragraph 31 of
Lord Mayhew's case. I am looking at D. "Article 3 of the
First Protocol states: `The High Contracting Parties undertake
to hold free elections at reasonable intervals by secret ballot,
under conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature."
It seems to me that is the more refined point
which my learned friend sought to rely on.
My Lords, this does not mean, I submit, that
Article 3 would be breached in the context of the hereditary peers
not having been able to vote at the last election. They have played
their full part in this Parliament so far, until the end of this
present session, and thereafter as your Lordships know the power
is in the Act for the Secretary of State to make appropriate arrangements
for hereditary peers to stand for and vote in the Commons. I will
just give the reference, if I may. It is to be found, and I simply
give it for assistance, in Volume IV at page 1345 at the bottom,
Tab 71. Essentially I think all I need to do is very shortly draw
the Committee's attention to paragraph 4 on page 1345 and paragraph
7, which expands the word or two which I said about the Secretary
of State making transitional provision.
My Lords, reference to European parliamentary
elections is not in the Bill because we thought hereditary peers
could not vote in European parliamentary elections, we knew perfectly
well. It is a power to be able to make registration much more
simple in that hereditary peers will be able to vote in parliamentary
elections for Westminster and European parliamentary elections
by means of a simplified procedure. I do not think I need detain
the Committee further having given that reference to indicate
that the mechanism is there for the Secretary of State to adopt.
That would mean for a time, until the first appropriate by-election,
hereditary peers who were no longer members of this House would
not be able to vote in by-elections and for a relatively short
period of time, that is until the next election, they would not
be able to vote either.
CHAIRMAN: You say it is the same for 17 year
olds who become 18, or whatever the relevant age is now?
THE ATTORNEY-GENERAL: Exactly, particularly
when one looks at the very wide words of Article 3. I am bearing
in mind the margin of appreciation which devolves to the domestic
The other point is, and I do not put this centrally,
the fact that most people in the United Kingdom elect one Member
of Parliament per, let us say, 60,000 voters. The Weatherill compromise
gives 750 hereditary peers the right to elect 75 representatives,
Members of Parliament, one per ten. My Lords, I am not, I do repeat
respectfully, putting that at the centre of my argument, I am
simply submitting that is something which needs to be borne in
mind. My Lords, in any event, clause 7(1) is in the plainest possible
terms. There is no conceivable possibility of ambiguity and that
is all that is required. My Lords, the Scottish peers were in
a not dissimilar situation from 1707 to 1963 when they could not
stand in parliamentary elections or vote in parliamentary elections,
they simply had their representative peers here; 16 of them.
Could I invite your Lordships to the Supplementary
Bundle, the green supplementary bundle at Tab 1? It is a very
poor copy for which I apologise. It is at page 2 of Tab 1. This
is to deal with a long list of statutes which it is claimed do
one thing and other statutes which do not do another. I am looking
at section 2. It is not clear; I repeat my apology. On page 2
what one has there is by virtue of conviction for treason or felony,
and one sees four or five lines up before the beginning of 3 and
the rubric, "Persons convicted of treason or felony may be
condemned in costs", the disqualification there, and I am
reading in a few words, "... or any civil office under the
Crown or other public employment, or any ecclesiastical benefice
..." and then these are the important words, "... or
of being elected, or sitting, or voting as a member of either
House of Parliament." So one has quite a clear reference
there in the Forfeiture Act.
CHAIRMAN: When did that take effect?
THE ATTORNEY-GENERAL: 1870, my Lord.
CHAIRMAN: No, was it immediately? There is no
question of it being at the end of the Parliament?
THE ATTORNEY-GENERAL: No, my Lord.
CHAIRMAN: So from the date of the commencement
of the Act. It is a very different situation.
THE ATTORNEY-GENERAL: My Lord, it is. It is
simply an illustration that not all drafting of statutes has been
identical, if that was the point which was relied upon.
My Lords, I can go quite shortly now to page
8 of Lord Mayhew's case, paragraph 10, which is the two limb argument.
The submission, which I reiterate, is that our drafting is apt
to deal with both limbs. I have already submitted in the context
of paragraphs 15 and 16 that there is confusion in the case put
forward by Lord Mayhew; there is a confusion between the evidential
nature of the writ, in other words the piece of paper, and the
My Lords, there are some relatively minor points
which I will deal with very, very quickly.
If one looks at page 15 of Lord Mayhew's caseand
I am not sure how heavily this is relied on and I deal with it
only for the sake of completenessin paragraph 26 there
are questions which are easily answered. It seems to me these
are simply logistical questions which can be simply determined
when the new arrangements come to hand, as indeed there have to
be arrangements at the moment. So that is my reference in my answer,
indeed in total to the paragraph 26 point.
The paragraph 27 point has already been taken
up by my reference to the Committee of Delegated Powers, which
I made a moment ago.
My Lords, can I reduce my submissions to their
brutal minimum? One is that clause 1 is plain in its effect and
it is the dominant operative clause.
CHAIRMAN: Sorry, say that again.
THE ATTORNEY-GENERAL: My Lord, the first is
that clause 1 is of the plainest and it is the dominant operative
clause, in the context of course of a single purpose Bill.
Two, clause 7(1) read in proper harmony with
clause 1 sets out the mandatory timetable.Three, clause 7(2) on
a proper understanding of what a writ does, on the basis of the
authorities I cited to the Committee this morning, is amply competent
to require hereditary peers who have answered to their writ to
depart at the end of this session and for those who have not yet
answered their writ but might wish to do so similarly to go at
the end of the session.I do not believe I can assist the Committee
CHAIRMAN: Thank you very much. Mr Sales, do
you have anything? Mr Beloff, would you like to reply?
MR BELOFF: My Lord, once the Attorney-General
had conceded, as he did, that whatever might be the position for
the future work of this Committee it was appropriate for the Committee,
once seized of the question referred to it by the House on this
occasion, to deal with it, there is nothing that I in my role
as advocate for Lord Mayhew of Twysden could usefully say upon
that point save only this: that if your Lordships were to consider
in the course of your determination of the question giving any
guidance for the future as to the appropriateness of the House
referring questions at a stage before a Bill is enacted, could
I just simply give your Lordship, and give your Lordship only,
references to jurisprudence of what we suggest is an analogous
situation where courts of law have considered legislation prior
to its enactment and have believed it to be useful to do so in
the particular context of those circumstances which there obtained?
I do this purely on the basis if your Lordships need to consider
the position at all, it may be appropriate you have the advantage
of such authority bearing directly or indirectly
CHAIRMAN: I think that would be very helpful.
MR BELOFF: My Lord, one of the two cases I have
in mind is the case of ex parte Smedley, which is 1985
1 QB at 657, pages 666 to 667, which is in the Additional Authorities
Bundle at Tab 16. The case concerned an Order in Council which
was in the course of being made and Sir John Donaldson, then Master
of the Rolls, said in effect, "It may be useful to the legislature
to know in advance our views as to the vires of this Order
in order that they might reflect if we determine it had no vires
as to whether it was appropriate to enact it."
The second case, the only other case I have
been able to identify which bears in any way upon this type of
issue, is a case called Rediffusion (Hong Kong), I give
it an abbreviated title, 1970 AC 1136, and the page reference
is 1158 A to B and it is Additional Authorities, Tab 15. In that
instance the Privy Council considered it was appropriate to rule
upon the issue as to whether a Hong Kong statute did or did not
violate an English Act of Parliament before the Hong Kong statute
or legislation was enacted. Again, your Lordships may find that
a helpful analogy.
My Lord, may I turn to the substantive matter
on which I enjoyed audience?
CHAIRMAN: There may be a difference, may there
not, between legislation which affects Parliament itself and particularly
the House of Lords itself, and general public legislation?
MR BELOFF: Indeed there may be, my Lord, but
I did not feel it appropriate to trespass outside simply giving
your Lordships that. There are many points I could make in response
to the Attorney but that is not my debate, as it were.
CHAIRMAN: No. Thank you.
MR BELOFF: My Lord, the issue before the Committee
has been refined in the course of argument to one which now can
be seen as being as short as it is important, that is to say whether
or not this particular Bill in its present form uses words of
sufficient clarity to remove the right to sit in Parliament from
those peers who have returned their Writ of Summons and thus obeyed
the Queen's command.
My lord, Lord Slynn of Hadley suggested while
my learned junior was addressing the Committee that the Government
would no doubt accept that clear words were needed. Nothing my
learned friend, the Attorney-General, advanced appears to depart
from that proposition, on the contrary both in the written case
and in his oral submission he said that clear words were there
and by implication that they were indeed needed. We would submit
that that acceptance of what is required to effect a change of
this constitutional significance is of course compelled by authority.
In his closing observations, the Attorney-General
ventured the proposition that it was not right to speak at the
end of the 20th century as if the status of hereditary peers as
Lords in Parliament could be regarded as a status of enjoyment
of a constitutional right, and he pointed out as a matter of political
history that the powers of the House of Lords have undergone a
change and diminution during the course of the last century and
that there was a view, the political merits of which of course
are not for me or Lord Mayhew to debate, that at the end of the
20th century it was no longer appropriate to have a significant
hereditary element in a modern legislature.
My Lord, all that may well be accepted, that
is a particular view, but nonetheless the status quo which this
Bill seeks to disturb is a status quo which has existed for almost
seven centuries in which the hereditary peerage have enjoyed a
status as members of the legislature.
Your Lordships will recollect what was said
by Viscount Birkenhead in the Rhondda case, and can I just
show your Lordships this passage again, because my learned friend
read the passage immediately preceding it without then detaining
you with the subsequent words which we say were of equal if not
greater importance? This is at page 365 of the Law Report, it
is Volume I, Tab 38, and it is page 220 if one is looking at the
volume reference as distinct from the court report reference.
What Viscount Birkenhead, Lord Chancellor, said, in the penultimate
paragraph on that page is, "What we have to ask ourselves
is whether the Legislature, when dealing with a constitutional
question of the utmost gravity, and effecting a revolutionary
change in the privileges of this House, and dealing with and binding
His Majesty's prerogative, has seen fit to do so by words which
can be thus described." That is where he was suggesting general
words were sufficient. In our respectful submission, shearing
away one's political approach to this issue and just looking at
the substance of the matter, we have here a constitutional question
of the utmost gravity. It effects a revolutionary change in the
privileges of the House. It deals with and binds Her Majesty's
prerogative and in our respectful submission one cannot diminish
the force of that proposition by reference to the views of one
political persuasion or another. One must look at the substance
of what is proposed in the context of what the present status
I also draw your Lordships' attention to the
fact that although my learned friend read the preceding passage
for the purpose of reminding you that one derives the intention
of a legislation from the nature and grammatical meaning of the
words it has used, one has to bear in mind that Viscount Birkenhead
accompanied that by emphasising the need for pristine clarity
when one is dealing with a subject-matter of this kind.
My Lord, the pattern of the pre-existing law
may by now, your Lordships feel, be well defined. The critical
sequence, if I can put it in that way, is this: firstly, one has
a peer (non-disqualified), secondly, that that peer has the right
to have a Writ of Summons issued to attend a Parliament; thirdly,
that that peer must exercise the function of returning the writ
in response to the command contained in the writ; and fourthly
thereafter he or she may participate in the affairs of this House.
It is wrong, if it has ever been suggested, that it is sufficient
to describe oneself as a non-disqualifying peer and then on that
basis to claim an entitlement to participate. In other words,
of the four stages of the sequence I have outlined, it now appears
to be common ground, if it was ever in dispute, that one cannot
simply omit stages two and three.
What was done to achieve the exclusion of the
hereditary peerage is indicated, of course, by clause 7(2) which
is in a sequence of clauses which leads, notwithstanding intervening
clauses by virtue of amendment, in logical progression from clause
1 via clause 7(1), and it denies the effect of a Writ of Summons
issued for the present Parliament, which then provokes the question
on which your Lordships have had conspicuous debate as to what
is the effect of the issue of the Writ of Summons. Your Lordships
had my learned junior this morning taking your Lordships through
with his erudition and knowledge as to why our case, Lord Mayhew's
case, is that the effect of a Writ of Summons is to command attendance
at Parliament, to compel a duty and to confer a right and that
thereafter its effect is spent. Your Lordship will not be pleased
if I were to act as, as it were, the dummy having heard the ventriloquist
before the adjournment, so I will not repeat that, but if I may
I shall stand back and simply ask certain questions and give the
answers to your Lordships as best I can and also comment very
briefly, and for the last time, on the salient authorities to
which the Attorney-General referred for his part.
I accept, as certain of your Lordships put to
Mr Lofthouse, that the fact it is now established and well established
that a Writ of Summons does not have effect until it is returned,
does not necessarily mean logically that it has no effect thereafter.
I agree that conceptually it would be possible for something not
to have an effect until point of time A but to continue to have
effect beyond point of time A, but nonetheless in our respectful
submission the cases do make clear that in this particular instance
the Writ of Summons is exhausted in point of time after it has
been returned to in the conventional way. I simply wish to draw
your Lordships' attention for the last time to two passages in
two key cases on which there has been much debate which have been
perhaps under-emphasised in the course of dialogue between the
Committee and the Bar but are certainly essential to an understanding
as we submit of the dimensions of the Writ of Summons.
The first, my Lord, is again the Abergavenny
case, the Nevill case, which I ask your Lordships to look
at. We have it at several junctures but at Volume IV, Tab 61,
page 1185 it is taken from page 72 of Cruise on Dignities. Your
Lordships have been much pressed with the words in the centre
of the page, "the writ hath no operation and effect until
he sit in parliament", and that certainly makes good, and
we suggest makes good this positively, the proposition that the
issued writ has no effect until that particular time but does
not by itself make good the proposition, which we also advance
that it has no effect thereafter. That which we suggest reinforces
that latter proposition are the words at the end of the page.
If I may read six lines from the end again and for the last time,
"And when one is called by writ to parliament, the order
is that he be apparelled in his parliament robes, and his writ
is openly read in the upper house, and he is brought into his
place by two lords of parliament, and then he is adjudged in law
inter pares regni." Our respectful submission is that
it was resolved at that stage by the Lord Chancellor, the two
Chief Justices and other members of the court that that was the
status he then enjoyed and his rights and duties thereafter flowed
from the fact he enjoyed that status and not from the fact he
had been the original beneficiary of a writ.
We say exactly the same point and emphasis is
given in the case of the Barony of Strange, which is referred
to at the next tab, at page 1194. Tab 61. Page 318 of Cruise on
Dignities. Again, I ask your Lordships to look at the end of the
first paragraph and to recognise in our respectful submission
that there are two, albeit interlinked but nonetheless separate,
notions inherent in the critical passage. "When the person
summoned sat, the writ of summons had its full effect ..."
That is point one. That is when the writ bites. It does not bite
until then. Then, to go on to the next sentence, "His creation
into the state and dignity of a baron was by operation of law,
in consequence of his once sitting ....". We respectfully
submit that that is a separate notion, that is to say that one
has both the state and dignity of a baron as a result of having
sat in response to a writ and that one's duties and rights thereafter
are because one has at that juncture achieved that status. If
that be right, then in our respectful submission there is in truth
no clause that in fact deprives peers who have received and responded
to that, that is to say by returning the Writ of Summons, of the
rights that they derive in relation to that act of return before
the end of the session. In our respectful submission there is
no basis for ignoring the precise words which have been used,
the law in relation to writs may be arcane and it may be antique
but it is established, and it is established because it cannot
be changed according to the context unless, which is not the position,
the context has materially changed.
Two points were made in the course of discussion.
The first point made by my lord, Lord Campbell of Alloway, was
that he detected in our submission a division of approach to hereditary
peers on the one hand and life peers on the other, advocating
an approach which depended upon the original meaning to be attached
to Writs of Summons in respect of the former group but conceding
a different approach to Writs of Summons issued to the latter
group, the modern creations. My Lord, I wish to dispel any suggestion,
if it lingers in any of your Lordships' minds, that that is our
submission. It is not so. The Writ of Summons which is issued
to these two groups is the same, its incidents are the same, its
consequences are the same.
Insofar as the point was made that Parliament
now sits in more or less permanent session, or certainly for periods
of time longer than it sat in ages past, the key point is however
that it never sat, or certainly only unusually sat if at all,
for a single day. So the problem which was first exposed, if it
be a problem, by my lord, Lord Hope, that the Writ of Summons
itself referred to giving attendance and counsel, which seemed
to suggest that it referred to a period of time after the writ
had been returned, was a matter that had to be construed in the
context of medieval as of modern parliaments. Your Lordships have
my learned junior's main construction that the effect of those
words is merely to indicate the type of service that is expected
once one attends and to differentiate, for example, on the one
hand the service to be expected of members of the judiciary and
the service to be expected of members of the legislature. We respectfully
submit that there is no rule of construction which would enable
one to ignore the effect that is designated and imposed by law
upon Writs of Summons, certainly not because the Government say
they intended more than they have in fact achieved in the language
used. Although simply is neither here nor there, it is in fact
well-known that they have had plenty of opportunity to consider
and if necessary to respond to the points which were made originally
in my learned junior's opinion.
The Attorney-General in his last observations
suggested to your Lordships that the argument that we advanced
from precedent, that is to say an argument which was advanced
on the basis that the formula that has previously been used by
Parliament to deprive sitting peers of their rights to continue
to sit, was distinct from that which is deployed in this Bill,
and that one should also ask the question whether or not, looking
at the matter objectively, one should not assume that the change
in formula indicates a change in intent. Your Lordships will know
in the last of the five questions my learned junior posed to himself
on the basis of questions posed by your Lordships to me on Thursday,
there is a list of those particular statutes.
The Attorney-General appeared to consider that
he had identified at any rate one statute that suggested there
was no general formula and that it was not necessary to do more
than to use the vocabulary which is used in this Bill. But we
respectfully submit that the very statute he referred to reinforces
rather than undermines our argument. Can I just ask your Lordships
to look at it again? You have it fresh in mind. It is in the Supplementary
Bundle of Authorities.
CHAIRMAN: This is the felony point?
MR BELOFF: This is the forfeiture point.
The Supplementary Bundle of Authorities, Tab
1, page 2. It is the second section of that Act. The persons who
are to be henceforth disqualified, those who have been convicted
of treason or felony, shall be incapableI take it four
lines from the top of the page"... of holding any
military or naval office, or any civil office under the Crown
or other public employment, or any ecclesiastical benefice, or
of being elected, or sitting, or voting as a member of either
House of Parliament ...". Elected, of course, refers to the
House of Commons. Sitting or voting may refer indifferently to
both but it certainly refers to your Lordships' House. But the
very point we made is that the traditional method, the hallowed
method I venture to say, of depriving persons otherwise entitled
to sit or vote as a member of a House of Parliament is to attack
the right to sit and vote itself. That is the vocabulary which
is deployed in the other legislation, that is the vocabulary which
is so significantly missing in this particular Bill.
I now, if I mayand your Lordships may
be concerned with the tedium of my submissions but not the timing
of them as I shall not in any sense trespass anywhere near the
deemed time to close this particular sessioncould I just
take your Lordships very briefly, because my learned friend went
through them with some velocity, the authorities which he said
were conclusively in his favour? I would respectfully submit that
if one perhaps took them with a measure more patience one would
see that they are by no means to the effect which he contended.
I shall just take, if I may, five of them very swiftly.
Would your Lordships firstly go back to Viscountess
Rhondda? I ask your Lordships to look at what was said by Viscount
Birkenhead which is at page 213 of Tab 38, Volume I, page 358
of the report, 213 of the bundle. My learned friend read to your
Lordships from the observations of Lord Cranworth, the Lord Chancellor,
in the Wensleydale case, some seven lines from the top
of the page, and what Lord Cranworth was distinguishing, quite
rightly, was the fact it was not the Patent of Nobility but the
Writ of Summons which he was entitled to.
LORD CAMPBELL OF ALLOWAY: Which tab?
MR BELOFF: I am so sorry. Volume I, Tab 38.
My learned friend uses this as a mirror in which
to reflect the observations of Lord Cranworth in the Wensleydale
case and he quoted you the passage from those observations which
are five lines from the top of page 358, "'That which gives
every noble Lord the 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.'"
What was the issue which Lord Cranworth was
there addressing? The issue he was addressing was, what is the
source of the right to sit in Parliament, is it patent, is it
writ, and he said, and we have no quarrel with that, in a choice
between the two it is elementarily the writ. What he was not addressing
at that juncture of his observations was the stage at which the
writ gave rise to the right, and that was dealt with in another
passage from Wensleydale, also cited by Viscount Birkenhead,
on the right hand side, page 359 of the Law Report, 214 of the
volume. This is the second main paragraph, three lines in, "...
he sits because he presents a Writ at the bar of your Lordships'
House, commanding him to attend ...", and then he goes on
to say, "... whether he has a Patent or not, is absolutely
indifferent." So at that juncture, Lord Cranworth is addressing
the issue, is a writ issued by itself sufficient to entitle one
to sit, and he is answering the question, clearly not, one has
to return it and present it at the bar of the House. So it is,
of course, a sine qua non. We have never disputed that.
It is not sufficient until it is returned.
At 364, to take the matter on, 219 of the report,
my learned friend referred your Lordships briefly to references
from the Lords' Journals in the 17th century, where your Lordships
brought your minds to bear on who was or who was excused attendance.
My Lord, a perfectly accurate citation but irrelevant to the issue
before your Lordships because there is no indication that the
Lords' Journals or those who reported the matter were not making
the distinction which we say is made elsewhere in Coke and in
other Lords' Journals to which Mr Lofthouse in particular referred,
but there is a difference between failure to attend in response
to the Writ of Summons and failure to attend in the Parliament
My Lord, it may be useful to deal at this juncture
with the Select Committee Report, Bundle V, Tab 8.
CHAIRMAN: Should we be looking at that? We have
looked at it de bene esse.
MR BELOFF: We are not embarrassed by it. In
this particular area views are expressed, your Lordships can give
such weight to them as you consider fit, it is not actually binding
authority or precedent.
CHAIRMAN: As long as you do not object?
MR BELOFF: I do not object as long as your Lordships
are not misled as to what is said.
CHAIRMAN: Where do we find this?
MR BELOFF: Tab 8 of the Supplementary Bundle
of Authorities which I called Volume V because it is indeed a
fifth but has never I think been given that title.
I am not going to detain your Lordships at any
length with this because what we say about this report is that
it was a report of a Select Committee who were directing their
minds to a practical problem, that is to say what powers did the
House have in relation to members of the House who were not exercising
their right or performing their duty of attendance. In that context,
they were not bringing their mind to bear upon whether or not
a Writ of Summons once returned had exhausted its effect, or indeed
necessarily by what right precisely the Lords of Parliament sat
in Parliament thereafter. It simply was not a question which fell
to be determined and the language that they used is in that context
sufficient for their purposes but imprecise for ours. Your Lordships
may, however, note, just as an example of a passage which we could
cite in our favour if we considered that this Select Committee
had any real potency and aid to construction, paragraph 13 at
page 89, where the language of the writ is set out and then it
goes on, "In considering the precise nature of this right
and duty of attendance, regard must also be had to the terms of
the Letters Patent ....". In terms of attendance, of course,
the vocabulary which is used is one that is tied to day and place,
so we say that is perfectly in harmony with our particular approach
but there is nothing in a sense which bears positively in our
favour or negatively against us, it is just that the House is
not having to consider this precise issue.
To go to another passage, the memorandum which
was provided by the then Attorney-General and subsequently Lord
Chancellor and junior counsel to the Crown in peerage cases, Mr
Squibb, your Lordships will recollect at page 102 the authors
of that memorandum appeared to consider that the duty to attend,
which was the subject-matter of the Committee's deliberations,
could be divided into, on the one hand a duty to present oneself
and, on the other, a duty to attend thereafter. That is because
they cite from Coke, and therefore treat Coke, albeit hundreds
of years later, as representing contemporary law, who draws the
distinction which my Lords may recollect that both I and my learned
junior sought to draw between the penalties appropriate for non-attendance
at the start and the penalties appropriate for insufficient attendance
I think my lord, Lord Campbell of Alloway asked
whether this Select Committee bore any fruit. The fruit which
was borne, I am told by Mr Lofthouse, indirectly is the Standing
Order to which my learned friend, the Attorney-General referred
at page 80. But, again, it is dealing with a practical matter,
the exercise of power, the way in which attendance may or may
not be excused. It bears not directly, or we would say sufficiently
at all, on the issue which your Lordships now have to determine.
What does, however, bear on it is another authority
which my learned friend referred to, which he suggested was inconsistent
with our fundamental case, and that was from Anson. He took our
words of Anson, being a constitutional expert of the highest standingyour
Lordships recollect the passage upon which we place reliancedrawing
distinction between the consequence, the issue of its writ and
its perfection, and I do not return to that. The passage which
he said was harmful to us is at Tab 63, page 1232.
LORD WIGODER: The alternative page number please,
MR BELOFF: Page 75, my Lord.
The passage which the Attorney-General read
to your Lordships was at the start of the second main paragraph
on that page, "Until 1867 the existence of Parliament was
affected by the demise of the Crown. The King summoned the estates
of the realm, by writ, to confer with him; when he died the invitation
lapsed, and the Parliament was dissolved." The Parliament
was dissolved, my Lords, because it was the King's or Queen's
Parliament and accordingly it was appropriate on his demiseone
of the three estates of the realm, as it were, not participant
any morethat Parliament would need to be reconstituted.
My learned friend relied upon this particular
passage to suggest that the effect of the Writ of Summons was
recognised by Anson as being to compel attendance not at the start
of a Parliament but was effective to compel attendance thereafter.
If he had read to your Lordships over the page, page 76, page
1233, the end of the paragraph, he might have seen that the voyage
upon which he had embarked was a dangerous one for his purposes.
What Sir William Anson there says is, "... the theory that
Parliament owed its existence to the King's writ was true to this
extent ...", and I emphasise the words "to this extent",
"... that the writ was the recognised means by which the
three estates could be brought together." That, in our respectful
submission, is indeed the function of the writ, it is the assemblage
of Parliament thereafter, by making return to election writs in
the Commons, by making return to Writs of Summons in the Lords,
the members of each House acquire a status from which their subsequent
rights and duties devolve.
Halsbury was also cited to your Lordships and
that is to be found at Tab 69 of this same volume, paragraph 535,
page 1330 if one looks at the foot of the page, and my lord, Lord
Wigoder's numbering is sufficiently distinct. It is paragraph
535 in any event. This is under the rubric "Right of hereditary
peers to receive writ of summons." My learned friend focused
on the words or description of a Writ of Summons to sit and vote
in the House of Lords. Our response to that is that is not dealing
with the effect of the Writ of Summons by itself, it is dealing
with the purpose that the recipient of the writ is expected to
fulfil if he obeys the commandment of the writ. It is discrimination
between, for example, the judicial function, the function of the
parliamentarian, or to use other writs in Bishop Stubbs' work,
writs summoning military men to the assistance of the realm. The
sequence of events and the effect of the writ is thereafter described
in passages which I read to your Lordships in opening, and will
not trouble your Lordships with again.
My Lords, I pause, however, to say that even
let us suppose for the sake of argument that we failed to persuade
my Lords that the effect of a Writ of Summons is not spent after
it has been returneda concession, of course, which I do
not make for a single second. In our submission, this is in no
sense fatal to our case if one looks at the language that has
been used in the Bill.
Can I take your Lordships back now to page 57
of the pink volume as it has been colourfully described?
MR BELOFF: What is denied effect is a Writ of
Summons issued for the present Parliament. My Lord, it is common
ground as I understand itand if it is not common ground
it is clear beyond doubt on the authoritiesthat a Writ
of Summons which has been issued has no effect other than to command
attendance unless and until it is returned. In other words, what
even on my learned friend, the Attorney-General's argument has
continuing effect is not only a Writ of Summons which has been
issued but a Writ of Summons which has been returned to. I emphasise
the phrase is to that extent double-barrelled. It is not a Writ
of Summons shall not have effect, in which one might find debate
as to the extent to which a Writ of Summons had per se
effect of vital importance, it is a Writ of Summons which has
been issued and in our respectful submission the effect of a Writ
of Summons which has been issued but not returned to, is only
to compel attendance. It is that and that alone which the Act
attacks. In our submission, we have as it were a further but fundamental
argument in response to those advanced by my learned friend which
in no sense is defeated by the resolution, if it were to be resolved
in his favour, of the proposition that a Writ of Summons returned
to has continuing effect qua Writ of Summons through the
duration of a Parliament.
If I may, I will take your Lordships, if I can,
lastly to the Vaux case where we say to an extent there
is assistance to be gained in respect of this particular point.
This is at Volume I, Tab 32, page 103 and 104, or 524 and 525
if one is looking at the references in the English Reports at
the foot of the page. The Attorney-General read to your Lordships
the passage at 103 distinguishing, and this is the penultimate
paragraph, between the effect of a patent and the effect of a
writ. He said that the writ is the authority for admitting a new
peer into this House, for "... until he is called upon to
perform the functions of a peer by a writ from the Crown, he cannot
enter this House. The writ is the King's command to attend his
Majesty in Parliament." I am by no means persuaded that those
words do any violence to our submission at all, because again
we have always accepted that the writ is a sine qua non.
What the learned Attorney-General failed to
draw your Lordships' attention to, no doubt through inadvertence,
was the last sentence in the paragraph which may be thought to
be of importance in this context, that "... the writ is taken
from him by the Chancellor, to be deposited among the records
of the House." That is what we say is a physical expression
of the principle that we have espoused, namely that the writ is
spent as to effect.
However, it is on the other side of the page,
104, that we say that the most powerful words are to be found.
Before "580", if one is looking at the Clark & Finnelly
pagination, between "579" and "580", about
eight lines above "580", a third of the way down the
page, "A writ of summons to Parliament is simply the King's
command to a person to perform a particular duty. It grants nothing;
it creates nothing; it cannot therefore ennoble. In the Abergavenny
case where the writ of summons had issued, but the party died
before he could obey it ...", which my lord, Lord Hope reminded
one was the context of the Nevill case, "... the decision
of all the Judges was, that a person summoned to Parliament is
not a peer until he obeys the writ. The peerage under a writ is
consequently obtained, not by the writ, but by sitting in this
House ...". At that stage, of course, one was talking about
the obsolete method of peerage creation, but the principle underlying
that, namely that what in fact conferred in that sense the dignity
of a peerage but equally in the modern incarnation the functions
of a Lord of Parliament, is not the writ but the sitting in the
We say, again, if one is being asked for candidates
for our primary submission, that would appear to be a prime authority
for our particular point.
Perhaps your Lordship might note just at page
105 before Report Clark and Finelly 583, an analogous description
of the creation of the office of Lord Chief Justice.
We then return finally, and subject to the point
that I have already made in relation to the language of 7(1) and
7(2), just to the text of the Bill. We repeat that whatever may
or may not be said about clause 1 as to its objective, it is silent
both as to the means by which the objective is to be achieved
and the timing by which that objective is to be achieved at 55.
There are no words that can be read in to fill those gaps in clause
1 itself. It therefore follows that clause 7(1) and clause 7(2)
are necessary to supply that particular omission, necessary to
supply in 7(1) the answer to the question "as from when"
and necessary to supply in 7.2 the question "by what means".
It makes no sense, in our respectful submission,
it is really a forensic flourish to describe clause 1 as being
a dominant clause. With respect, there is no such notion as a
"dominant" clause in exercises of construction, it is
the first clause in point of time. It, however, is linked expressly
in 7(1) and by that 7(2), they have to be read together. What
is required is an integrated reading of the matter as a whole.
We suggest that as this Bill itself on any view speaks of a staged
amendment of the composition of your Lordships' House, the only
issue which divides the parties functionally is the timing of
those particular stages.
My Lord, I come lastly, and I use the word lastly
not in the aspirational way counsel always do but actually accurately,
by reference to the European Convention on Human Rights which
my learned friend, the Attorney-General, summarised by reference
to the printed text. My Lord, what cannot be gain-said is that
hereditary peers who are the victims, if I am not using too emotive
a word, of this Bill, did not elect the House of Commons and will
be deprived of the quid pro quo of participating in the
House directly. Their position must be distinguished from those
who never had a right to elect in the first place to what was
always distinguished between a situation of deprivation on the
one hand and non-conferred on the other.
Insofar as the point is said to be mitigated
in any way by an ability to vote, as there may be, at by-elections,
see 7(3), that depends upon the grace and favour of the Executive
and is only for, in any event, a limited group who happen to be
in the constituencies in which adventitiously a by-election may
Insofar as it is suggested that the position
is mitigated by an ability to vote for the so-called Weatherill
peers, that is not conferred by legislation, it is conferred by
Standing Orders that are themselves mutable and in any event it
is manifestly a lesser right, a lesser direct participation, than
they presently enjoy. Insofar as the matter is put on the basis
recognised in the Strasbourg juris-prudence that there
is a margin of appreciation open to domestic legislatures to determine
the limits within which people will enjoy the rights to participate
in Government, we ask this question: is it seriously to be said,
and this is the only issue that functionally again divides us,
that two years is going to make all the difference? Is it so important
in the context and abrogation of a right that has existed in this
country for over seven centuries?
My Lord, unless I can assist your Lordships
any further that is our case.
CHAIRMAN: Thank you very much indeed.
Counsel and parties were ordered to withdraw
and after a short time were again called in
CHAIRMAN: Mr Attorney, Mr Beloff, the Committee
will report to the House as follows: (1) that the Committee have
met and have considered the Reference of the House of 27 July
which was in the following terms: "whether the House of Lords'
Bill (as amended on Report) would, if enacted, affect the right
of those hereditary peers who have answered to their Writ of Summons
before the Bill receives Royal Assent to continue to sit and vote
throughout the Parliament in which the Bill is enacted".
(2) That the Committee have heard counsel on behalf of the Lord
Mayhew of Twysden and on behalf of Her Majesty's Government. (3)
That it is the unanimous opinion of the Committee that the House
of Lords Bill would remove the right to sit and vote from all
hereditary peers who have answered to their writ of summons before
the Bill receives Royal Assent, save those exempted by virtue
of clause 2, from the end of the session in which the Bill is
passed. Reasons for this decision will be given later. Their Lordships
are very indebted to counsel for their assistance in this.
Adjourned until To-morrow at half past Ten o'clock