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Lord Gray: Perhaps I may deal with that point. The noble Lord said that I condemned myself out of my own mouth. He missed the point. I said that we never had sat here by right of the hereditary peerage; we came here by Act of Parliament. If we never had a hereditary right to be here, we did not get it from that Act. We were allowed to have a Writ of Summons as a consequence of that Act and certainly not as a consequence of our hereditary right.

The Earl of Caithness: Will my noble friend clarify my position? Being one of those who would qualify to be elected in Scotland, and I did not take my peerage until 1965, when my father died, am I within the ambit of his amendment?

Lord Gray: I can answer my noble friend Lord Caithness quickly. I am afraid that he lies without the ambit because he did not hold his title before 31st July 1963.

Lord Mackay of Ardbrecknish: Perhaps I may give the noble Lord, Lord Newby, some advice. He would be better leaving the Government's reply to the noble and learned Lord, Lord Falconer, because he has just entered some difficult territory in the peerages of Scotland. My noble friend Lord Caithness illustrated the point. He has a Scottish peerage, but he is here by heredity because he succeeded his father after 1963. However, my noble friend Lord Gray is not here by heredity because of the 1963 Act.

When my noble friend Lord Gray inherited his peerage in 1946, he could not come here, even if he were a UK Peer, because he was too young. But in 1952 he became old enough to do so. He was a hereditary Peer, but he could not come to this House because he was not one of the 16 who were elected. As he explained, he failed to be elected--and I know that he was pretty determined not to be elected at that time. My noble friend came after 1963 only because of the passage of the Act.

It is a narrow point and because I know the noble and learned Lord, Lord Falconer, well enough I know what he will say. But that is not the answer which the noble Lord from the Liberal Democrat Benches tried to give on behalf of the Government. Interestingly enough--

Lord Newby: I should have known better than to intervene in the arcane nature of Scottish matters. Is the noble Lord from the Official Opposition Bench seeking to argue that the noble Lord, Lord Gray, is in this House for a reason other than being the possessor of a hereditary peerage?

Lord Mackay of Ardbrecknish: I am arguing that if it were not for the 1963 Act, and assuming that my noble friend had continued to fail to be elected as one

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of the 16, he could not come here, despite the fact that he was a hereditary Peer of Scotland with an ancient title.

The noble Earl, Lord Perth, my noble friend Lord Forbes, the noble Lady, Lady Kinloss, and the noble Lords, Lord Napier and Ettrick, Lord Belhaven and Stenton and Lord Polwarth, are in that category, too. I have obviously disturbed the Liberal Democrats.

Lord Avebury: I was in the other place when the 1963 Act was passed and I remember it well. Is the noble Lord saying that because a person came here by virtue of an Act of Parliament, and he is a hereditary Peer and therefore the holder of a hereditary peerage, Clause 1 does not apply to him?

Lord Mackay of Ardbrecknish: I am trying to illustrate the question which my noble friend Lord Gray has put, because he is not here because he is a hereditary Peer. I tried to explain that if there had not been a 1963 Act, and if my noble friend had failed to be elected, he would not have been able to come here. However, he would still be a hereditary Peer and hold the title Lord Gray. There is no question about that. It is a matter about which I have no doubt the noble and learned Lord, Lord Falconer, is well equipped to answer and give sound legal advice.

The Earl of Erroll: Perhaps I may add to that because other amendments have been rejected on the ground that hereditary Peers may sit here after being elected, nominated or whatever; they are not disbarred from being members of the future interim House by virtue of hereditary peerage.

However, if in this case it is argued that the noble Lord, Lord Gray, cannot sit here by virtue of the 1963 Act, but his hereditary peerage overrules that, presumably a hereditary peerage also overrules other situations in which we might be able to stand for election or be nominated to an interim House. It would appear that being a hereditary Peer is our most terrible defect. I believe that one cannot have it both ways. One cannot say, first, that the 1963 Act does not overrule the hereditary peerage and, secondly, that something else does. I am very interested in this issue.

Lord Falconer of Thoroton: What an interesting debate it has been. I understand the point made by the noble Lord, Lord Gray. It is that those of us who were Scottish Peers before 31st July 1963, and who had not been elected as representative Peers, became Members of this House not by virtue of being hereditary Peers but by virtue of the statute. That is ingenious, but wrong for the following reasons.

The position before 31st July 1963 was that only those Scottish hereditary Peers who had been elected could become Members of this House. That restriction was removed by the 1963 Act. As a result, on that date all Scottish Peers were entitled to become Members of this House. Does the noble Lord, Lord Gray, by way of example on those facts, become a Member of the House of Lords by virtue of a hereditary peerage? Yes, he does. The restriction which had previously prevented him

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becoming a Member by virtue of a hereditary peerage--namely, the Act of Union--had been removed by the 1963 Act. With great respect to the noble Lord, Lord Gray, I do not believe that there would be any difficulty in a court reaching that conclusion.

That is as a matter of construction. As a matter of intention of the Act, and with great respect to the noble Lord, Lord Gray, and those of his fellows who came into the House on 31st July 1963, can one think of any reason why they and they alone should be protected from what is the plain intent and effect of the provision? I am afraid not. Therefore, although the argument was put incredibly eloquently and incredibly well, and even misled the noble Lord, Lord Mackay of Ardbrecknish, for a moment, it is in my respectful submission entirely wrong and entirely without merit.

Lord Phillips of Sudbury: Before the noble Lord sits down, in the interests of the arcaneness which has characterised this part of the debate, may I ask him this? He talked about removal of a restriction by means of the 1963 Act. When was that restriction imposed?

Lord Falconer of Thoroton: In 1707.

Lord Gray: The debate has been very interesting. I am grateful to all who have spoken, including the noble and learned Lord who replied. But I do not agree with him. This is amazing temerity on my part, since I am nothing approaching a lawyer; I am barely educated.

But I feel that my case is supported by the words in the 1963 Act in Section 4. It provides further back-up for what I have been arguing. I shall read it out for the benefit of the Committee:

    "The holder of a peerage in the peerage of Scotland shall have the same right to receive writs of summons to attend the House of Lords, and to sit and vote in that House, as the holder of a peerage in the peerage of the United Kingdom". There are a few more words that do not concern us here because they refer merely to repeal of enactments.

I should like to make the following points. First, one can have the same right as someone else but for different reasons. What is the right that is granted? It is the right to a Writ of Summons, not the right to sit by virtue of a hereditary peerage.

The right given by Section 4 is identified. I have just quoted it, and I shall paraphrase it now. It is the same right as that of the holder of a peerage of the United Kingdom. Peers of the United Kingdom include life Peers, as is clear from their Letters Patent. This seems to reinforce my view expressed earlier that perhaps Peers in this peculiar category are in fact life Peers for the purposes of the Bill. There is no mention of heredity in Section 4 of the 1963 Act.

I have not been seeking to argue that we should come here when all our hereditary fellows go. No, I am drawing the Government's attention to a point where I think they have missed a trick. The draftsman could have written "England" instead of "United Kingdom", since the peerages all predate the Union. But he did not.

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We have to go by the words on the face of the Act, not by presumed intention, and I think that the words equate us with life Peers.

At this point I should like to make, rather churlishly perhaps, a complaint about the Explanatory Notes issued with the Bill by the Cabinet Office. Paragraph 24 refers to Section 4 of the 1963 Act, saying:

    "Section 4 of the 1963 Act allows all Scottish hereditary peers to receive a writ of summons to attend the House of Lords and to sit and vote in that House on the same basis as a UK hereditary peer. As no peer will by virtue of a hereditary peerage be entitled to membership of the House of Lords, section 4 can be repealed". There is no mention of "heredity" in Section 4 of the 1963 Act. This is misleading and should be corrected.

Lord Phillips of Sudbury: I should like to revert to the issue of removal of a restriction. I know that it is a small point, but I wish to ask the noble and learned Lord to review his reply, because I begin to wonder whether he is correct in saying that the 1707 Act imposed a restriction on Scottish Peers. I do not believe that Scottish Peers ever had the right to sit in this House. The noble Lord, Lord Gray, may in fact be correct in his basic interpretation of the history of this point. I would ask the Minister to look at that outside the Committee.

6.45 p.m.

Lord Falconer of Thoroton: I do not think my basic position changes one jot. As the noble Lord, Lord Gray, has indicated, there is a second point--that the effect of Section 4 is that Scottish hereditary Peers are treated exactly the same as United Kingdom hereditary Peers by the 1963 Act. The effect is that whether the point is wrong or right in the way that I put it, they are to be treated in every respect as if they are United Kingdom hereditary Peers, which they are obviously.

Does the restriction in Clause 1 of the Bill, which says that one cannot sit and vote in the House of Lords by virtue of a hereditary peerage, apply to somebody who, first, is a hereditary Peer, and, secondly, is described in the 1963 Act as someone who is to be treated for all purposes as a UK hereditary Peer? I would have thought, speaking for myself and for the Government, that that question allows of only one answer.

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