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Page 1, line 5, leave out ("be a member of") and insert ("attend, sit or vote in")

The noble Lord said: The words "by virtue of" already appear in Clause 1. I should like to propose a different form of words for the reference to a Member of this House. It has already been suggested that this wording is not particularly apt for the Bill. Clause 1 focuses on the right of a Peer to be a functioning part of the parliamentary process, and precedence in the Appellate Jurisdictions Act, the Titles Deprivation Act and the Life Peerages Act undoubtedly shows that relevant rights are to attend, sit and vote in the House of Lords. My amendment therefore brings this Bill into line with precedent and clarifies what I suggest is some awkwardness in the present drafting. I beg to move.

The Earl of Northesk: I should mention at the outset that the purpose of my noble friend Lord Trefgarne, and myself in this amendment may perhaps have been slightly clearer had we been able to move our Amendments Nos. 7 and 8 on the original Marshalled List. To use the Government's phrase, and mindful of our debate on the Writ issue, those were stand-alone attempts to re-work the wording of Clause 1, partly to probe the Government's intention and partly to assist them in delivering that intention more accurately and properly. In the event, those debates have not taken place, so we have not been able to tease out the Government on this issue. Therefore, some of our doubts about the intention of Clause 1 remain. I make no more of the point than that.

I make no apology for repeating this point, but from the moment the Bill was first published there were many noble Lords, myself included, who had difficulty with the phrase used in Clause 1, "member of the House of Lords".I still do. What does it mean? More importantly, what is its force in statute? That is a question that the noble Lord, Lord Williams of Mostyn, declined to address when I asked him about it previously.

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Following the amendment of my noble friends on the Front Bench and that of my noble friend Lord Norrie these questions assume even greater pertinence. I repeat the comment of my noble friend Lord Trefgarne that it is interesting to note that the two most recent precedents in this regard--the Life Peerages Act 1958 and the Peerage Act 1963--both avoid reference to "membership of the House of Lords". Both use the more accurate--I am bound to say more elegant--construction that we propose in the amendment; namely, the right to attend the House of Lords and to sit and vote in that House.

It is the same precedent to be found in the Appellate Jurisdiction Act and the Titles Deprivation Act, to which the noble Lord, Lord Williams of Mostyn, referred previously. I simply ask, therefore, why the Government have chosen to draft Clause 1 in the way that they have. I repeat: it would assist the Committee if the Government Front Bench could advise us of the statutory precedent for the phrase,

    "member of the House of Lords". In advance of any reply, and without wishing to stretch the point too far, I suggest that it is a nebulous concept. We are bound to assume that the Government's intent in Clause 1 is to focus upon removing the current right of the hereditary peerage as a functioning part of the legislative and parliamentary process. We have been told that often enough.

It is worth noting the wording in the manifesto. It states:

    "As an initial, self-contained reform, not dependent on further reform in the future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute". This is wholly cognisant of, and consistent, with our amendment. It concentrates upon the rights of "sitting" and "voting" in the House. Clearly, the Bill, for whatever reason, has lost something in translation. It might deliver the spirit of the manifesto commitment, but not its letter. In so doing, it loses much of its impact because, contrary to the way in which Clause 1 is constructed and as intimated by the Lofthouse opinion, it is not membership of the House per se that permits hereditary Peers to be part of the process; rather, it is attendance at this House on command of the Crown in Writs of Summons and the associated rights of sitting and voting.

A persistent theme of the Bill, which I mentioned at Second Reading and which has echoed throughout our debate today, is that however much the Government may eulogise it, simplicity of drafting is no substitute for legislative clarity and coherence. The Government's rhetoric has on occasions characterised the hereditary peerage as being anachronistic and illegitimate. In passing, I simply make the obvious point that no such clarity attaches to all the other and subsequent elements of the reform of the House. Necessarily, therefore, the question before us as a House of legislative scrutiny has to be whether the drafting will achieve the desired effect. At the very least, if only because of the Lofthouse opinion, there is room for speculation that the use of the woolly phrase,

    "member of the House of Lords",

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    will not do so. The Committee's discussions on the amendments of my noble friends on the Front Bench earlier today amply demonstrate that point.

One other thought occurs to me about this. All of us, whatever the route that has brought us to this House, are acutely aware of the duties and obligations that are inter-weaved within our rights of attendance. In some small way, the use of the phrase,

    "member of the House of Lords", unpicks that stitching. In effect, it emphasises not the dignity of the status of your Lordship's House, but the perceived privilege that the Government maintain--too often they have done so in an unseemly way--attaches to the continued presence of the hereditary peerage. A small suspicion looms in my mind. Could it be that the text of the Bill owes as much to making a categoric political statement as it does to giving legislative effect to the Government's policy intention? Does not confusing the two purposes mean that neither is satisfied?

In conclusion, albeit that my noble friend Lord Trefgarne and myself are only seeking to probe the Government on the issue at this stage, I cannot see that they can seriously object to the amendment. After all--although he is no longer in his place, I think I can assist the noble Lord, Lord Peston here--it does much to assist their purpose.


Lord Mayhew of Twysden: During the course of his interventions this afternoon the Lord Chancellor said that he welcomed the questions that were put to him. I therefore felt that it was only a matter of oversight that had led him not to answer some questions that I had ventured to put to him in a modest contribution that I had made. I asked him whether the term "member of the House of Lords"had been judicially defined and how the Government themselves, if they insisted on employing it in the Bill, defined it. For whatever reason, the noble and learned Lord did not answer those questions. Yet I think that they are rather important for reasons which I will not go over again but which were well rehearsed, particularly in the context of the opinion of Mr. John Lofthouse, which was much mentioned earlier this afternoon.

The amendment put forward by my noble friend Lord Trefgarne overcomes the difficulty that is inherent in the employment, for the first time in statute, of this term. No one quite knows what is meant by "member of the House of Lords". It has the merit, of course, of being simple in the words which are used. We are all in favour of simple language provided that the simple language has a simple meaning. But so far we have not been given any meaning, simple or otherwise, and a great deal turns upon it.

I know that the Government are sceptical, to put it charitably, about the motives of those of us who have put forward amendments with a view to securing greater clarity in the Bill. For my part, I bear that scepticism philosophically because I believe it is important that this

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House should hold to its task of reviewing, revising and improving the quality of legislation. What, as I understand it, my noble friend intends in the amendment is to put beyond peradventure what the Government are seeking to overturn.

We hear a great deal about the manifesto--far too much--and how unjust it is that people should have the right to attend, sit and vote in the House by reason of the accident of birth. It is that, in terms, which is put forward by my noble friend in this amendment. I shall wait now with great anticipation to hear why the Government will not abandon this hitherto totally undefined term and adopt the amendment moved by my noble friend.

Lord Mackay of Ardbrecknish: This amendment returns the Committee to some of the questions with which we started off earlier today, or earlier yesterday, depending on how one wishes to look at it. It arises out of discussions and also out of the opinion of Mr. John Lofthouse, as my noble and learned friend Lord Mayhew has just said. As my noble friends have explained, the problem is that the expression "member of the House of Lords" may well be one without any legal meaning. I see that the Lord Advocate is with us. He may well like to give us the Scottish view on this matter. I was disappointed that he did not come to give me a Scottish view on the earlier amendments in the name of my noble friend Lord Gray.

Earlier today my noble and learned friend Lord Mayhew asked the Lord Chancellor to state unequivocally where the phrase "a member of the House of Lords" had been construed in law and he made that point again because the response he received was probably not very satisfactory. The response was more or less that the phrase is a concept that the man in the street can easily understand. I am not entirely sure whether that is the same as construed in law. I wonder whether the man in the street does understand. Does the man in the street understand that Irish Peers do not necessarily sit in your Lordships' House unless they have UK peerages or that Peers with courtesy titles, with the exception of my noble friend Lord Cranborne, are not allowed to sit here?

For example, my noble friend Lord Selkirk of Douglas is flying the flag as Lord James Douglas-Hamilton in his campaign to gain a seat in the Scottish Parliament, a campaign which I am pretty confident will be successful, and successful on the first-past-the-post system at that. My noble friend had the problem that not many people understood why Lord James Douglas-Hamilton in the past did not sit in the House of Lords and only now sits in this House as Lord Selkirk of Douglas. I do not believe that the man in the street clearly understands the concept.

I also have in mind my honourable friend the Member of Parliament for Devizes, the Earl of Ancram. People may be very confused as to why he sits in the other place and not in this House. The reason is that his is a courtesy title and he is heir to the Marquess of Lothian.

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I do not believe that the man in the street can readily understand some of the nuances of titles. It is not a satisfactory answer simply to say that there is no problem with construction because the man in the street understands it. That is not good enough.

If we are to have this law, the concept of a hereditary peerage should be properly defined. My noble friends have explained why they have used the phrase

    "attend, sit or vote in". That wording has been used in the past. In the past one often heard the argument advanced by parliamentary draftsmen that this was the way it had always been done and it should carry on being done in this way. Some members of the present Government during the passage of the Scotland Bill used the same argument when we suggested that certain words and phrases were not necessary in that measure. They said that that was the way it had always been done. It put the matter beyond doubt because that legal terminology had been used down the ages in legislation. My noble friends suggest the same here.

I shall be interested to hear the noble Lord's explanation of the earlier comment of his noble and learned friend about the understanding of the man in the street. I believe I have proved fairly conclusively that it is very much in doubt that the man in the street understands it because of the complexities to which I referred earlier.

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