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Earl Russell: My Lords, the noble and learned Lord, Lord Mayhew of Twysden, is not only a distinguished public servant, he is also--which I regard as a much greater honour--a good House man. As always, I have listened to him with interest, respect and pleasure. The noble and learned Lord is also a distinguished advocate. However, I believe he suffered today from the one fate which a distinguished advocate finds most difficult to handle: I believe that he has been inadequately briefed.

I have read the opinion to which the noble and learned Lord referred. It touches on many points which are clearly within the scope of my professional knowledge. I know many of the quotations upon which that opinion relies, but I do not read them as does the opinion. That of course is a fate with which all scholars are familiar. It happens to all of us. Quoting out of context is by definition what one's opponent does. So I record the fact only to indicate that there is ground for argument.

I have checked other quotations which appear to me to be material to the argument. Again, I find that I do not read them as does the opinion. Your Lordships may wonder why I have the temerity to challenge a distinguished legal opinion. Partly, because it is in areas where I believe that my opinion as an historian is as relevant as the opinion of a lawyer and partly because I have the comfort of knowing that I am in agreement with Her Majesty's judges. While it is not always the case that the law is what Her Majesty's judges say it is--if it were, the Appellate Committee of this House would be redundant--the opinion that the law is what Her Majesty's judges say it is is one which at least deserves a hearing.

In the case of Mr Anthony Wedgwood Benn, as he then was, the judges were faced with an argument similar to the one put by the noble and learned Lord--the distinction between the hereditary peerage and the Writ of Summons. Mr Benn relied extremely heavily on the claim that the Crown was entitled to refrain from issuing a Writ of Summons. Therefore, contrary to what the opinion says, the judgment of the court on that occasion that the Writ of Summons was an inescapable incident of the hereditary peerage was not, as the opinion suggests, obiter; it was directly on the matter of the case.

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In my opinion, for what it is worth, the wording of Clause 1 of the Bill is correct. Halsbury's Laws of England, states that,

    "a hereditary peer of the United Kingdom is entitled to receive, in virtue of his peerage, a writ of summons to sit and vote in the House of Lords".

The gap between those words and the words of Clause 1 of the Bill is very narrow indeed. Before I sit down, I hope I may close it.

The noble and learned Lord relied heavily on the opinion of Lord Chancellor Cranworth. However, in the judgment of the Lord Chancellor, Viscount Birkenhead, which I read last night--I may say that a Liberal quoting F.E. Smith feels a little like the devil quoting scripture: but on this occasion F.E. Smith happened to be right:

    "The doctrine that the King, having created a peer, cannot direct that he shall not be summoned to Parliament had become settled constitutional law in the course of the seventeenth century".

He also said, and this passage is worth reflection:

    "It is easy to see what use George III could have made in the eighteenth century of a constitutional position in which the right to determine whether writs should issue to particular peers depended upon the Royal will and not upon hereditary descent".

Here is why I believe not merely that the opinion is mistaken but that it would be dangerous to refer it to the Committee for Privileges. It would open a can of worms which has been very securely closed ever since 1640. If, after that length of time, you open a can of worms, the smell is rather unpleasant. Moreover, that can of worms has been closed for a very good reason. As soon as we separate the Writ of Summons from the hereditary peerage, we open the way to the suggestion that the Crown has a discretion to give or withhold the Writ according to whether it likes a noble Lord's face. That is a doctrine which the Crown has attempted in the past to argue and has been defeated. It is very dangerous indeed to encourage the Crown to try again.

When we consider the reflections of Lord Birkenhead--the danger of allowing the Crown that power--the danger is no less if the Crown exercises that right on the advice of its Prime Minister. The one strength of the hereditary peerage is its independence. As soon as the Crown has a discretion to give or withhold a Writ of Summons, that independence is seriously threatened. That has been the position since 1640, when Charles I attempted to deny a Writ to Lord Mandeville. The Lord Admiral's secretary expressed great dismay. Two days later, Mandeville got his Writ. He then presented the Lord Admiral with five pounds of Bermuda oranges in the middle of the procession of the State Opening. I would love to know what happened to those oranges. I am sure the Lord Admiral did not have a Waitrose bag to put them in.

That was a political decision, and so indeed was the decision to send for Baldwin and not Curzon in 1923. Both of them have given rise to a practice which has remained unchanged ever since. I am not aware of any case since 1640 where the Crown has denied a Writ of Summons to a Peer suitably qualified; that is, not in certain well-defined categories of exception: a minor, an alien, a traitor, a felon or, until 1958, a woman. Those categories are laid down, or were laid down, in common law and statute. Parliament may change those categories

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in the exercise of its sovereign power. However, as soon as we say that the Writ of Summons, independent of the hereditary peerage, is the sole ground of membership, we open the door to a discretion which I believe is extremely dangerous to us all. That is why I hope that this case will not be referred to the Committee for Privileges; and I would not say that if I did not also believe that there is no case to answer.

4 p.m.

Viscount Cranborne: My Lords, rather uncharacteristically, your Lordships may feel, I shall not detain the House very long. I was provoked by the reference of the noble Earl, Lord Russell, to a can of worms. During the course of the early debates at Committee stage of this Bill, the Government made it perfectly clear that they were wholly confident in their interpretation of the matter of the writ in Clauses 1 and 7. As I understand it, the Government Front Bench has, from that time to this, maintained its confidence that its interpretation is solid.

The noble Earl, Lord Russell, referred to a can of worms. I believe that this is precisely the point that your Lordships need to address this afternoon. I, mercifully, am no lawyer. I have no idea whether the arguments advanced by the noble Earl, Lord Russell, the arguments advanced by my noble and learned friend Lord Mayhew or the arguments advanced by any of the other distinguished lawyers on both sides of your Lordships' House this afternoon are accurate. However, what is perfectly clear to me is that during the course of the last few months a great deal of doubt has been cast, as my noble friend explained, on the Government's interpretation, of which they have told us they are so completely certain. I believe that that is the can of worms that your Lordships ought to be addressing this afternoon. It is a can of worms that has already been opened rather than the can of worms to which the noble Earl, Lord Russell, referred which he fears will be opened.

If this Bill were to be passed without this matter being resolved, I believe that there will be a legacy of bitterness which would be extremely unfortunate to leave in the mouths of your Lordships if and when this Bill is finally passed. Therefore, from the point of view of good order and from the point of view of good government, it seems to me sensible that the can of worms that has been opened should either be closed or, if there is indeed a case to answer, that that case should be laid before your Lordships before the Bill is passed rather than afterwards. That seems to me to be the great merit of what my noble and learned friend Lord Mayhew has laid before your Lordships this afternoon.

For that reason, it is right, as my noble friend Lord Campbell of Alloway has made clear, that we should find a tribunal which is made up of the highest judges in the land, in which those of us who are members of the Committee for Privileges are merely handmaidens. It is right that that body should be able to determine whether the can of worms has been opened or whether it remains closed, as is suggested by the Government. It

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is for that reason that my noble and learned friend Lord Mayhew has indeed performed a considerable service to your Lordships today in proposing this Motion.

The Government have made it clear that they still believe they are right in their interpretation of Clauses 1 and 7. If that is so, they should have nothing to fear. If it is not so, it is better that we should know it before the Bill is passed. Whatever the rights and wrongs of the legal case, I suggest that that is not a question for your Lordships this afternoon. The question is whether we want this matter to be settled once and for all, so that we can either address a fault in the Bill before the Bill is passed or dispose of an issue which turns out to be, as was suggested by the noble Lord, Lord Goodhart, a non-issue. I venture to suggest that your Lordships would be wise to refer that question to a committee of experts before the Bill is passed. We are fortunate indeed that a committee of experts exists in the form of the Law Lords who sit on the Committee for Privileges.

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