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Viscount Cranborne: I congratulate my noble friend Lord Norrie on provoking a magnificent response from the noble Lord, Lord Strabolgi, which will have come as no surprise to those who have heard his authoritative pronouncements in the Procedure Committee. It was extremely courageous of my noble friend to propose his amendments in front of the noble Lord, knowing, as I am sure he did, that he would elicit such an authoritative reply.

For reasons which I will not explain at any length, I would hesitate to rebut my noble friend's contention. I certainly would not wish to tangle with the noble Lord,

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Lord Strabolgi, on the matter of Peerages by Writ as opposed to Peerages by Letters Patent. Certainly, as the possessor of a relatively modern peerage compared to that of the noble Lord, Lord Strabolgi, I would not regard myself as an authority on the matter. What I should like to do is to refer to Amendment No. 30A which was proposed by my noble friend and, with the greatest of respect to him, suggest to the Committee that, perhaps for non-technical reasons, my noble friend might care to withdraw that amendment. I suggest that not for technical reasons, but for purely practical ones.

If I understood my noble friend correctly, he dismissed somewhat airily the perils of two classes of Member of any House of Parliament. I wonder whether I may bring back my noble friend to that part of his argument. I have been quite attracted by some of the arguments that I have heard in your Lordships' House and elsewhere about the merits of Members of a reformed upper Chamber being drawn from different categories of people. Indeed, people from different sources should perhaps be suggested as Members of the reformed upper Chamber. But I would regard that as being very different from Members of any Chamber of Parliament, let alone the upper Chamber of this Parliament, enjoying different rights and privileges once here.

All of us have been astonished and riveted by the speeches of the hereditary Peers. We have never been bored and we have never been unimpressed in any way. We have hung, metaphorically, like Miss Prism from the lips of every noble Lord who has spoken. But I wonder whether that enthusiasm and respect would long survive the knowledge that a noble Lord who sat here by hereditary right or by Writ of Summons--in spite of the answer of the noble and learned Lord the Lord Chancellor a little earlier; perhaps we ought to be more precise--had detained us, however learnedly and entertainingly, when we knew, in the final analysis, that that noble Lord could not affect the final decision of the House because he did not enjoy the privilege of a vote.

As a former business manager in the House, I suspect that the Chief Whip and the Leader of the House, or perhaps their opposition opposite numbers, would increasingly find themselves the subject of complaints about some Peers keeping the House up purely because they were exercising rights which were different from the rights of other noble Lords. We would find two classes of Member who inevitably would be treated as such.

It has been one of the glories of your Lordships' House so far that all noble Lords who are Members of the present House, whether life Peers or hereditary Peers, are treated alike. There have sometimes been jibes from the Government Front Bench during the course of the present Parliament when votes have gone against the Government and they have endeavoured to say that that was entirely the fault of the presence of hereditary Peers. They are entitled to point that out. But I think that I am right in saying that when the noble Baroness the Leader of the House and her myrmidon, the Government Chief Whip, have been moved to make such remarks, it has in no way been in the spirit that

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under present circumstances any Member of your Lordships' House does not have the right to exercise that vote. They merely wish to remove that right; but while we still have that right, they acknowledge that we have the right to exercise it.

I suspect that if noble Lords were allowed by hereditary right to sit in your Lordships' House, as my noble friend proposes, and they were to venture to keep your Lordships up, as I am doing even now at a late hour, very soon for practical reasons they would find themselves the object of second-class status or discrimination of one kind or another.

I ask my noble friend to consider whether it is wise in any chamber to have two classes of member. As soon as it happens not only does it engender the kind of irritation that I have endeavoured to describe, together with the example that I have given, but it will begin to encourage invidious comparisons between members. Inevitably, different Members in the House with different rights will find themselves subject to all kinds of different treatment. I regard that as deeply injurious to the present harmonious relations between people who sit in this House having arrived by different routes.

While it is sensible to listen with respect and admiration to my noble friend, I wonder whether his Amendment No. 30A carries with it more practical dangers whatever be the technical rights and wrongs of the case. I believe that he was very courageous in advance to quarrel with the noble Lord, Lord Strabolgi, on this matter.

Lord Carter: The noble Viscount referred to me as a myrmidon. I have looked up the word and see that it means either a hired ruffian or lowly servant. I just wonder which of the two the noble Viscount had in mind.

Viscount Cranborne: I would never regard the noble Lord the Government Chief Whip as a ruffian. He has certainly been hired, so perhaps that part of the description fits. Servant? Surely not. Perhaps I should find a better and more elegant word and I therefore withdraw the appellation.

The Earl of Northesk: I should like to address the question of personal and property rights raised by my noble friend Lord Norrie. Notwithstanding our first debate this afternoon on the issue of the Writ of Summons, I remain confused by the phase on the face of the Bill

    "a member of the House of Lords". Consequently, as a first port of call can the Minister assist the Committee by advising where the statutory precedent for its use is to be found. It is my understanding that it has never been used before in an Act of Parliament.

No one should have any reason to doubt that the Government are aware that the concept of a hereditary peerage is not defined in statute; rather, as we are all aware--and I hope that I do not trespass on the sensibilities of the noble and learned Lord the Lord

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Chancellor as to its arcane nature--its definition is to be found in case law and precedent developed over time in line with the evolutionary character of our constitution.

Happily, consultations with the Library of this House on the point have elicited two key cases this century which have had the effect of restating the essential criteria to be considered in this context. First, there is the judgment in the claim of Viscountess Rhondda in 1922:

    "A peerage is an inalienable incorporeal hereditament created by the act of the Sovereign which, if and when he creates it, carries with it certain attributes which attach to it not by any reason of any grant of those attributes by the Crown, but as essentially existing at common law by reason of the enablement created by the grant of the peerage".

Secondly, the 1994 edition of Halsbury's Laws of England, following upon the Norfolk Earldom case of 1907, states:

    "'Peerage' may be defined as a dignity to which is attached the right to a summons by name to sit and vote in Parliament".

My further researches on this point add considerable weight to the principles contained in the two passages that I have cited. In a debate on the viscountcy of my noble friend Lord Oxfuird in 1977 the noble and learned Lord, Lord Keith of Kinkel, commented (albeit in a case involving a Scottish peerage) thus:

    "First of all, I suggest that it is desirable to understand the nature of a Scottish peerage. It is a species of heritable property which descends to heirs according to the canons which, in the law of Scotland, are appropriate to the descent of any kind of heritable property, and of course your Lordship will appreciate that land is the most important kind of heritable property".--[Official Report, 27/6/77; col.900.] Noble Lords will of course appreciate that land is the most important part of heritable property.

In the same debate, Lord Fraser of Tullybelton developed this theme:

    "It seems to me that to deprive a small group of persons ... of what is already a vested right, if they are able to prove it, without compensation and without very good reason, would be entirely wrong".--[Official Report, 27/6/77; col. 910.] It is also worth noting that the Redesdale Committee's Third Report on Dignity of a Peer of the Realm, dated 1822, observes that,

    "a peerage being a hereditament created de novo it can have no existence but according to the terms of its creation and must cease to exist the moment there should be a failure of those to whom it may be given by the words of the patent".

I offer your Lordships one more quotation, from the Cowley v. Cowley case in 1901:

    "the dignities of the peerage having been originally annexed to lands were considered as tenements or incorporeal hereditaments wherein a person might have a real estate; and although dignities are now become little more than personal honours and rights yet they are still classed under the head of real property". I cite those precedents for the record merely to support the substance of my noble friend's contention that property rights attach to the existence of a hereditary peerage.

In the circumstances, I simply ask the Government whether they in turn accept this or whether, despite those precedents, they have some other perceptions about this matter.

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