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Lord Goodhart: My Lords, what this Motion proposes is, frankly, a waste of time. There can be no doubt that Parliament has the power by statute to terminate the effect of a current Writ of Summons issued for that Parliament. Indeed, the noble and learned Lord, Lord Mayhew of Twysden, did not challenge that. I believe there can be no doubt whatever that Clauses 1 and 7(2) of this Bill are intended to do, and obviously do, just that.
There is of course a precedent for the cancellation of a Writ of Summons during its currency; that is, the Titles Deprivation Act 1917. That applied to three German princes holding British Royal dukedoms and to one Irish viscount. Perhaps not altogether surprisingly, none of them challenged the question of whether or not they were entitled to continue to sit for the duration of the Parliament then sitting.
That of course is the question raised by this Motion. It is a question to which there is only one possible answer and it is therefore pointless to ask it. Nevertheless, it is clear that some Members of your Lordships' House are going to find some forum in which to ask it, and so the question is: how should it be dealt with?
The question is a pure question of law; one of interpretation of statute. One would have thought therefore that it was a matter for the courts rather than for the Committee for Privileges. The Committee for Privileges is most suitable for deciding questions of fact concerning the rights of individuals to a peerage, as it did for example in the Moynihan and Arlington cases recently. But out of the 30 members of that committee, only four are Law Lords. I recognise that a number of others are lawyers, but it remains an unsuitable body for deciding a pure question of law.
There is a particular problem in this case which renders the Committee for Privileges clearly unsuitable for deciding this question. Hereditary Peers have an interest in the outcome which disqualifies them from taking part in a decision of the committee, which is a judicial decision. That might not apply to hereditary Peers who have already been elected as one of the
15 Deputy Chairmen at the time when the committee is considering that issue, but it certainly applies to any unelected hereditary Peer and I also believe it applies to any of the 75 hereditary Peers who are elected by the other hereditary Peers in party groups because they are representatives of unelected hereditaries who themselves have a direct interest.That knocks out four of the five Conservative members of the Committee for Privileges, leaving only the noble Lord, Lord Campbell of Alloway. In addition it may be argued that all party Peers, as opposed to Cross-Benchers, are disqualified, because if they are Conservatives they have a clear political interest in maintaining the predominance of their numbers in your Lordships' House. If they are government or Liberal Democrat Peers they have an interest in ending that predominance. So we would then potentially end up with four Law Lords and three Cross-Bench life Peers eligible to sit.
If the Committee for Privileges decided that Writs of Summons were valid until the end of the Parliament, there would of course be a serious constitutional crisis. That decision, taken by that committee, would be regarded as self-interested. There would be an immediate conflict between the two Houses of Parliament and between your Lordships' House and the Government. The outcome of that could be extremely serious especially if government legislation were blocked or delayed in your Lordships' House by the votes of hereditary Peers.
Any decision, to have legitimacy, needs to be taken by the courts and not by your Lordships' House. However, the present constitutional position seems to be that it is for the Committee for Privileges or an equivalent body in the other place to decide on the rights of claimants to sit as Members of either House of Parliament. The courts will apparently not overrule that decision. That was decided, in relation to the House of Commons, in 1883 in the case of Bradlaugh v. Gossett. That is a well known case in which the House of Commons refused to allow the well known free thinker, Charles Bradlaugh, to take the Oath that he was required to take before he could take his seat. That case involved the interpretation of the Parliamentary Oaths Act 1866. The High Court said that it could not overrule the decision of the House of Commons even if it had wrongly interpreted the statute.
So far as your Lordships' House is concerned, the power to interpret an Act of Parliament was assumed without argument in the Viscountess Rhondda's case, when the Committee for Privileges decided the effect of the Sex Disqualification (Removal) Act 1919. That was procedurally a curious case and an unhappy precedent. The case was originally decided by the Law Lord members of the Committee for Privileges alone. They were in favour of the Viscountess. Your Lordships' House referred the case back to the committee for reconsideration and, by 22 votes to four, it voted against Lady Rhondda and its report was accepted by your Lordships' House.
There is another more helpful and more recent precedent. In 1957, the question arose whether the issue for a writ for libel against George Strauss, a well known
Labour Member of the House of Commons, in relation to the contents of a letter written by him to a Minister, would be contempt of the House of Commons. That question involved the interpretation of the Parliamentary Privilege Act 1770. That question was referred by Her Majesty the Queen on an Address from the House of Commons to the Judicial Committee of the Privy Council under Section 4 of the Judicial Committee Act 1833. That question was duly heard by seven Law Lords sitting in the Judicial Committee who gave their report. It was published as Command Paper 431 of 1958.If the question that is now being considered has to be decided at all--I do not believe that it does--that is the way to do it. We therefore oppose the Motion, both on the ground that the issue is too clear for argument and on the ground that, in the circumstances, the Committee for Privileges is not the appropriate body to decide that question. We might have taken a different view on the Motion if it had been a Motion to refer the question to a Judicial Committee of the Privy Council. That would have been an appropriate body to hear such arguments as may be put forward but, as it is, we are referring a question that does not need to be asked to a committee that is unsuitable to decide it.
Lord Annan: My Lords, I wonder whether, despite the charm and persuasiveness with which the noble and learned Lord, Lord Mayhew, moved his Motion, it is any more than another attempt to sabotage the Bill. I ask the noble and learned Lord the Lord Chancellor not to flinch--as we know, from the reform legislation that he has driven through the House, he is not a man for flinching--from saying categorically that if this Motion were passed, the whole of the Weatherill amendment would fall to the ground.
3.45 p.m.
Lord Campbell of Alloway: My Lords, I do not speak because the noble Lord, Lord Goodhart, mentioned my name. I have no interest in this to declare. As a member of the Privileges Committee I can say that it is non-political and that we always defer to the Law Lords. It makes wholly objective determinations, without any political interest or extraneous motives whatever. That has always been the case.
As for the suggestion made by the noble Lord, Lord Goodhart, that this is a matter for the courts and not the Privileges Committee, the noble Lord, with respect, is totally mistaken. The courts, before enactment, could not entertain this matter, because of parliamentary privilege. It is only after enactment that they may do so.
On the reference, there are inevitably two related questions for determination: judicial determination of the highest order, akin to that of your Lordships' Appellate Committee, or by the Privy Council. The first question is the one dealt with by my noble and learned friend Lord Mayhew. It is the question of legal construction as to the entitlement under the Writ of Summons.
The second question is whether, in context with that entitlement, Clause 7(2), as amended by Amendment No. 68A on Report, imports hybridity on to the face
of the Bill by conferring disparity of treatment on the Weatherill hereditaries that is not afforded to the general class or category. That is the very situation that was sought to be avoided by resort to Standing Orders.It is essentially a matter for judicial determination. Without the reasoned advice of the four Law Lords, one of whom always presides and to whom the lay members, such as myself--I have served on the committee for more than 15 years--always defer, I do not understand how your Lordships may resolve such questions on Third Reading. Should the Bill be amended and, if so, in what form, before it do pass? Indeed, should it pass? The question of the entitlement of the hereditary Peers to seek declaratory relief from the courts exists. Without the advice, can your Lordships have any assurance that the Bill is not defective?
I have no conclusion about the answer to either of those two questions. All I beg your Lordships to accept is that, in accordance with the advice of Treasury counsel, this is a matter that is worthy of investigation by the only forum that is suited, competent and appropriate to consider it. I support the Motion.
Viscount Bledisloe: My Lords, the noble and learned Lord, Lord Mayhew, has explained very clearly the argument that he, or some leading counsel, would wish to address if this matter were duly referred to the Committee for Privileges. He has not told us about the appropriateness of the procedure that he has proposed. I am concerned that it is a wholly revolutionary procedure that would give rise to a dubious precedent if it is allowed. It might mean that every Bill would end up being construed before it was passed.
The curious thing about the noble and learned Lord's Motion is that he is seeking an interpretation of a Bill that has not yet been enacted and may not be enacted in its present form. Normally, as your Lordships know, if a Bill that might be passed would, on a certain construction, affect the rights of individuals, they wait until the Bill is passed and then seek a declaration from the appropriate court or tribunal about the proper construction of what is, by that time, an Act. So far as I am aware, nobody has ever sought a declaration as to the meaning of a Bill that may or may not be passed.
I wish to ask three questions, on which I hope that either the noble and learned Lord the Lord Chancellor or the noble and learned Lord, Lord Mayhew, or perhaps as a bonus both of them, will enlighten us. First, if the Bill had been enacted and a hereditary Peer wished to say that it did not deprive him of his right to sit, would that be a matter which would go to court, as suggested by the noble Lord, Lord Campbell of Alloway, or would it then be a matter for the Committee for Privileges as the right tribunal? That is important, because if the noble Lord, Lord Campbell, is correct, the Committee for Privileges might say that the Bill had meaning A--namely, that it did deprive people--but then, after the Bill had been passed, the matter might be challenged in the courts, which might come to a different conclusion.
Secondly, we know that a court will not normally decide a hypothetical point and certainly will not pronounce upon the construction of a Bill which may or
may not be passed. I ask therefore whether there is any precedent in all our history for a reference to the Committee for Privileges to decide in advance what would be the effect of a Bill if it was enacted.
Thirdly, if the Motion is passed, does it oblige the Committee for Privileges to decide the matter, even if when the committee considers it it would think that because it was hypothetical it was inappropriate to answer it? Normally a court would say, "We will not answer your point because it is hypothetical". However, if this House has referred a matter to the Committee for Privileges, does the committee, as a committee of this House, have to answer it even if it does not think it is appropriate? I look forward to enlightenment on those three points.
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