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Lord Richard: My Lords, I would like to say a few words against this Motion. I am always impressed by the Conservative Party when it is in full operation. I have heard this afternoon from the noble and learned Lord, Lord Mayhew, that this is totally non-political. It is a highly objective analysis of a legal and difficult constitutional situation which deserves examination by the Committee for Privileges and in particular by the four Law Lords who will sit on it.

I am impressed by the number of your Lordships who have arrived this afternoon to engage in this objective examination of the issue. There is a large number of people beyond the Bar whose acquaintance I shall be very pleased to make after this debate! Assuredly, I have not made their acquaintance to date, despite having been in the House for nine-and-a-half to 10 years. It is impressive to see such an array of people here, all concerned with the constitutionality of this Bill.

I make two points. The noble Viscount, Lord Bledisloe, was devastating in his critique of this proposal, as indeed was the noble Lord, Lord Goodhart. There is no precedent for it. It is clearly politically motivated. Whatever the noble and learned Lord, Lord Mayhew, may say, it is a transparent political device to attempt to delay the coming into operation of the Bill in respect of which we have now been engaged for a long time. If it is not, why on earth has it been left for so long? If this is a genuine attempt to obtain an opinion from four Law Lords in this rather extraordinary way, I am surprised that the issue has been raised at the last minute before the Bill receives its Third Reading. Transparently and obviously, it is a political device to delay the coming into operation of the Bill. I oppose it.

Lord Kingsland: My Lords, the fact that something has not been done before as a reason for not doing it now is hardly a principle which applies to Labour government.

First, I believe that the remarks of the noble Lord, Lord Annan, and the noble Lord, Lord Richard, with respect to the motives behind the tabling of this Motion today by my noble and learned friend Lord Mayhew are, frankly, misplaced and unfair. Those who have followed

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this debate from its outset at Committee stage, and through Report stage to today's Motion, will know that right from the very outset my noble and learned friend Lord Mayhew has sought to obtain from the Government clarification of the meaning of what are now Clauses 7(2) and 1--and has totally failed to do so. It should, therefore, come as no surprise to your Lordships that the Government are faced with this Motion today.

The Opposition believe that there are three areas of doubt about this Bill which deserve consideration by the Committee for Privileges. Incidentally, I should say to the noble Lord, Lord Goodhart, that when the Committee for Privileges comes to consider this matter, it will be the views of the Law Lords alone which determine the interpretation of the Bill.

Lord Goodhart: My Lords, I am most grateful to the noble Lord for giving way. Would he accept that that was not the case in the Rhondda decision?

Lord Kingsland: My Lords, whatever has been the case in the past, that is certainly the position that the Opposition both understand and abide by in relation to this matter.

There are three elements of doubt in relation to this Bill. The first applies to Clause 7(2). Clause 7(2) concerns the effect of Writs of Summons. As my noble and learned friend Lord Mayhew has pointed out, when your Lordships receive a Writ of Summons and obey it and return it, the Writ ceases to have effect; it is physically cancelled. From that moment on, your Lordships have a right to sit and vote in the House. How, therefore, can Clause 7(2) make Writs of Summons cease to have an effect when they have already ceased to have an effect, except in relation to those noble Lords who have received writs but not have not yet returned them? If that interpretation is correct, and I know not whether it is--

Earl Russell: My Lords, could it be that this Bill causes the Writ of Summons to cease to have effect in exactly the same way as an act of attainder has always caused a Writ of Summons to cease to have effect?

Lord Kingsland: My Lords, surely the Labour Government would not be considering retrospective legislation!

If that interpretation of Clause 7(2) is correct, it is my submission that the Government would have to fall back on Clause 1. Clause 1 states that no one should be a Member of your Lordships' House by virtue of an hereditary peerage. As my noble and learned friend Lord Mayhew so devastatingly pointed out, nobody is a Member of your Lordships' House by virtue of an hereditary peerage. Your Lordships are Members of this House only as a result of receiving, obeying and returning the Writ of Summons. Those are two of the three areas of doubt to which I referred.

I turn now to the final area, which was raised by my noble friend Lord Bethell. The Government have certified the Bill as conforming with the European

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Convention on Human Rights. Your Lordships do not have a vote in general elections; your Lordships have an arrangement whereby, in return for not voting in a general election, noble Lords in receipt of a Writ of Summons represent themselves in your Lordships' House. What is the position if, halfway through a Parliament, your Lordships cease to be allowed to represent yourselves in your Lordships' House?

For those years that remain, from the moment of secession until the next general election, your Lordships will neither represent yourselves in your Lordships' House nor will your Lordships have authorised the activities of those who might have represented your Lordships in the House of Commons had your Lordships had the vote which your Lordships have given up. I believe that this is also a perfectly proper matter to put before the Committee for Privileges.

When judges in our nation's courts consider legislation, which seeks to remove the rights or liberties of citizens, they are particularly careful to ensure that the intention of Parliament to do so is clearly set out on the face of the Act. This is pre-eminently a Bill which seeks to remove rights of certain citizens in our country; namely, your Lordships. However, the matter goes even further than that, because the rights that those of your Lordships who receive a Summons by virtue of being hereditary Peers have is not just an individual right; it is a right to be part, and to comprise part, of this nation's sovereign authority.

In my submission, it is quite unacceptable that an Act should go on to the statute book which throws doubt on exactly what the composition of the sovereign power of this country is. That is the doubt which will open up if this Bill becomes law without a clear interpretation from the Committee for Privileges of your Lordships' House.

The Lord Privy Seal (Baroness Jay of Paddington): My Lords, perhaps I may be direct about the Motion before the House--

Lord Clifford of Chudleigh: My Lords--

Noble Lords: Order! Leader!

Baroness Jay of Paddington: My Lords, I shall start again. Perhaps I may be direct about the Motion that we are considering this afternoon. The Government--I say this with all due respect to the noble and learned Lord who was tasked with the role of moving the Motion--regard it as time consuming, potentially wasteful of public resources and irrelevant to the passage of the Bill. In other words, it is, frankly, both frivolous and irresponsible. Further, implicit in the Motion, underlying the arguments which have been advanced for it, is the extraordinary suggestion that Parliament may not be sovereign in the government of this country.

The full resources of the Cabinet Office have been unable to discover any case where the courts, or the Committee for Privileges, have been called upon to construe a Bill--a Bill currently before Parliament. That may, I hope, be helpful to the noble Viscount,

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Lord Bledisloe. Case law suggests that the courts would decline to consider a Bill if the matter were put to them; for example, the courts have said:

    "It must be for Parliament to lay down the procedures which are to be followed before a Bill can become an Act".

Why should there be one rule for the courts and another for the Committee for Privileges? In effect, the Motion seeks to obtain from the Law Lords in committee a decision that could not be obtained from the courts.

I am well aware of the authority of the Committee for Privileges and of the extent to which this House reserves to itself the right to determine questions relating to its membership and privileges. But, as far as I am aware, that has always been in the context of a decision of whether an individual who claims membership of the House or privileges as a Member of the House is, indeed, entitled to that membership, or those privileges, in the existing state of the law. Even the case of the Earl of Bristol, which we considered extensively in Committee when debating this point previously, added the rider to its ruling that a Peer could be excluded from the House if there was some judgment of Parliament or other legal judgment making him incapable of sitting. After all, if the law of peerage is judged immutable, then--I am happy to make a sexist point here--hereditary Peeresses would never have been enabled to sit in your Lordships' House.

Your Lordships know very well the power of precedent in this House. I would advise the House to be wary about the consequences for the future conduct of legislation if this device is accepted as proper in relation to this Bill. After all, the Committee for Privileges has, up until now, had no advisory role in relation to Bills; its function is to advise the House on matters concerning its privileges. Although this Motion asks about a privilege of hereditary Peers, it also seeks an opinion about a Bill. That is, properly, a matter for Parliament to debate, as it has already done and as those noble Lords who have been present for our extensive and--I would say--exhaustive debates on some of these subjects, will know. The Committee for Privileges is not the appropriate forum within Parliament to debate this issue and the Motion goes well beyond its established competence. I would ask your Lordships to consider this Question with the same clarity as you would apply to any other Bill.

The Motion suggests that it is right for this House to invent a new step in the process of legislating--and that, I have to say, in the context of the self-interest of certain Members of this House. It suggests that it can ask the Law Lords to sit in judgment on a piece of legislation before Parliament has considered and finished its consideration. I find this a profound and disturbing proposal.

The noble and learned Lord, Lord Mayhew of Twysden, said that he was only seeking to help the Government by clearing up a matter on which doubt had been cast. He said that his purpose was limited to this useful, indeed neutral, end. Of course, there are conventional parliamentary methods of bringing such questions to the attention of the House, of having

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them debated and decided. They are called amendments to a Bill--amendments to any Bill. There have been many amendments tabled to this Bill and many, many debates.

On this particular subject my noble and learned friend the Lord Chancellor and my noble friend Lord Williams of Mostyn have replied patiently and conclusively, both in Committee and on Report. I refer your Lordships to Hansard at cols. 166 to 172 and 281 to 282 on 27th April, and cols. 222 and 232 on 15th June. They are the most prominent examples.

I do not intend to repeat the detail of those expert, legal and parliamentary opinions this afternoon. But, suffice it to say, briefly and once again--and perhaps for the benefit of those noble Lords who have not been present to hear these arguments put on several occasions--Clause 1 of the Bill is the operative clause. The Government are certain that it is effective. It does not concern Writs of Summons because they are only the mechanism which enables a Peer to take his seat in this House. The crucial issue is who is entitled to receive a Writ. The entitlement for hereditary Peers depends on inheriting a peerage. In future, that entitlement will only cover the so-called "excepted Weatherill Peers", and that limited entitlement will soon be ended.

The Government, of course, understand the obvious point that, today, hereditary Peers may be in possession of Writs of Summons to this Parliament who will not be Weatherill Peers; indeed, the vast majority will in fact be excluded. That is the point of the Bill. They will be excluded because, once the Bill becomes law, they will have no right to their Writs because their rights to membership of this House is membership by virtue of an hereditary peerage and that will be removed. Perhaps I may use a straightforward, everyday analogy, which is slightly different from the very interesting historical example cited by the noble Earl, Lord Russell. If someone loses his citizenship, he will have no right to use a passport even though that passport may not have yet expired.

It is interesting and, in view of the comments of my noble friend Lord Richard, relevant to this debate that, although the Motion before the House today stands in the name of the noble and learned Lord, Lord Mayhew of Twysden, it was originally tabled in the name of the shadow Lord Chancellor, the noble Lord, Lord Kingsland. Therefore it is a little unclear who are the true authors of today's proceedings. Are we indeed seeing genuine concern from a distinguished Back-Bencher, or are we seeing a deliberate ploy by the Opposition Front Bench trying yet again to spin out proceedings on the Bill?

We know that the Official Opposition did indeed table an amendment to Clause 1 in Committee. Then they withdrew it without pressing it to a vote. They have never themselves attempted to amend what is presently Clause 7 to explore the issues which are now supposedly to be addressed. Clause 7 refers to Writs which have been issued, whether or not they have been responded to. Nor, having listened to the

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views expressed by the Government on several occasions in the debate on their Committee stage amendment, did the Opposition Front Bench return to the issue on Report, as, of course, they would have been entitled to do. Instead they have chosen to pursue this novel device. I have to say that I am sceptical about their reasons for doing so.

Perhaps we discover reality in all this when we consider the comments made outside your Lordships' House rather than--if I may say so--the rather pious expressions of assistance to the Government that we have heard in the Chamber this afternoon. I draw your Lordships' attention to a small column in The Times newspaper of Friday 9th July. It was written by a reporter who in my experience is usually accurately briefed about the Opposition's intentions in relation to this Bill. The article stated, in part,

    "The move is ostensibly helpful to the Government because it would clarify a legal uncertainty in the Bill. But, in practice, it forms the latest stage of the Tories' qualified opposition to the measure".

The Daily Telegraph on 22nd July similarly stated that the move was intended,

    "to delay the Government's plans to reform the House of Lords".

I have no doubt that those are more accurate descriptions than some of the professions of help we have heard.

As the noble Lord, Lord Annan, said, this takes us all into dangerous waters. The Government have no intention of delaying this Bill. Equally, we have no intention of disrupting the important business before us in the last three days before the Summer Recess by seeking immediately to move Third Reading simply to stymie this particular manoeuvre. I must say again to your Lordships, as I have said consistently since last October, that the Government believe that all the legislation before us--including now the important food standards agency Bill, which will have its Second Reading on Friday 30th July--is at least as important as House of Lords reform. I am delighted to say that 12 Bills will be presented for Royal Assent later today.

I restate the Government's intentions. I do this particularly for those noble Lords who are present in such numbers this afternoon but whom we rarely see when we consider other aspects of the Government's legislative programme. The Government intend the House of Lords Bill to reach the statute book before the end of the current Session. We shall move Third Reading in the spill-over Session which starts in October.

I also state what the consequences will be if the Opposition seek to obstruct that Third Reading. I am careful to say this in my most reticent and well modulated tones. I seek to avoid being unjustly accused--as my noble and learned friend the Lord Chancellor has been--of bullying and threatening. I believe that last week the noble Lord, Lord Strathclyde, used the words "sulphur and brimstone". Therefore I say calmly, but definitely, that attempts to frustrate the Third Reading of the Bill by

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the Opposition will be seen by the Government as a clear breach of the understandings reached between the noble and learned Lord the Lord Chancellor and the noble Viscount, Lord Cranborne. For the candidate Weatherill Peers, all those hours spent last week discussing the method for their election may prove to be for nothing. All those election addresses, so despised by the noble Earl, Lord Ferrers--who, sadly, is not present this afternoon--may well prove unnecessary.

In those circumstances--I say this simply for information--government Ministers in this House will advise our colleagues in another place to remove the new Clause 2 of the Bill. I must tell your Lordships that that will not be unpopular advice. Meanwhile we are faced this afternoon with this Motion which seeks to ask for an interpretation of a law which Parliament has yet to make; to challenge the basic constitutional arrangement that common law can always be overturned by statute--effectively, to challenge the sovereignty of Parliament. What your Lordships are being asked to agree to is unprecedented. It is frankly selfish and it is wasteful of public funds. Informed calculations of the legal costs alone are in excess of £100,000. I urge the House to show common sense, to be realistic and to reject the Motion.

But whatever happens, the Government will press on with our timetable for the House of Lords Bill. On this side of the House we become daily more certain that this is an essential, excellent Bill. It is long overdue and it will reach the statute book by the end of this Session.

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