APPENDIX 3
Case for Her Majesty's Government
INTRODUCTION
1. On 19 January the Government introduced
the House of Lords Bill in the House of Commons.
2. On 17 March 1999 the House of Lords Bill
was brought to Your Lordships' House. The Bill was amended at
Committee and Report stage, and reprinted with the amendments
on 1 July 1999. Hereafter, the House of Lords Bill as so amended
is referred to as "the Bill".
3. The basic object of the Bill is to restrict
membership of the House of Lords by virtue of a hereditary peerage
(Clause 1). Under Clause 2, the Bill provides for 90 hereditary
peers plus the person performing the office of Lord Great Chamberlain
and the Earl Marshal ("the Weatherill peers") to be
excepted from the application of Clause 1. Clause 2 was inserted
by amendment at Committee Stage in the House of Lords. The operative
provisions of the Bill are to come into effect at the end of the
Session in which it is passed.
4. On 27 April 1999, there was a debate
in Your Lordships' House concerning the question whether the Bill,
if enacted, would be effective to attain the Government's objective.
The Government maintains that the Bill will be effective to attain
its objective. Some members of Your Lordships' House, however,
maintained that the Bill would not be effective to attain that
objective. They made reference to an Opinion of Mr John Lofthouse
of Counsel, dated 14 April 1999.
5. On 27 July 1999, upon a motion moved
by Lord Mayhew, Your Lordships' House passed the following motion—
"That there be referred to the Committee
for Privileges the question whether the House of Lords Bill (as
amended on Report) would, if enacted, affect the right of those
hereditary peers who have answered to their Writ of Summons before
the Bill receives Royal Assent to continue to sit and vote throughout
the Parliament in which the Bill is enacted."
6. The issues which arise upon the present
reference are set out in the Statement of Issues agreed between
Counsel for the Government and Counsel for Lord Mayhew and his
supporters. The Statement of Issues includes, at the request of
the Lord Mayhew's representatives, reference to Article 3 of Protocol
1 of the European Convention on Human Rights.
THE ROLE
OF THE
COMMITTEE
7. The Government opposed the reference
to the Committee on the ground, among others, that such a reference
was inappropriate in relation to a Bill still in the course of
its passage through Parliament, which has not yet been enacted.
It is respectfully submitted that the Committee should first consider
whether it is in fact appropriate for the Committee to give an
opinion upon the effect of the Bill.
8. Standing Orders 74-78 relate to references
to the Committee. The Companion to the Standing Orders states,
"the House refers to this Committee questions regarding its
privileges and claims of peerage and of precedence . . .".
9. It has never been the practice of the
Committee to advise on the effect of a Bill still in the process
of passing through Parliament and not yet law:
(1) In peerage cases, the Committee applies
existing law to the facts arising under a particular claim;
(2) In other cases referred to it for an
opinion, also, the Committee has always considered the law in
existence at the time—indeed, in such cases it is inherent
in the notion that the Committee is advising on the law (and doing
so as if it were a Court) that it is extant law which is ruled
upon, and not proposals for legislation. A relatively recent example
of such an opinion was the Report by the Committee for Privileges
on Parliamentary Privilege and the Mental Health Legislation (18
June 1984), concerning whether the powers of detention of persons
suffering from mental disorder under the Mental Health Act 1983
overrode the privilege of peers against arrest. That was, clearly,
an opinion upon the effect of an extant law, contained in a statute
which had been enacted.
10. Thus, what the Committee is invited
to do is wholly without precedent—and that is for good reasons.
If it is ever appropriate for the Committee to give an opinion
to the House on a Bill (as to which the Government reserves its
position), it is respectfully submitted that it could only be
in wholly exceptional circumstances that the Committee should
be prepared to move to advising on the putative legal effect of
a Bill which has not yet been enacted. This is because:
(1) The Bill is not yet law. The Bill will
only pass into law when enacted by the Queen in Parliament. The
proper role of the Committee is to advise upon matters of law
and procedure. Generally, it is respectfully submitted that it
is not appropriate for the Committee to presume that the Queen
in Parliament will enact any statute in any particular form before
a Bill has received the Royal Assent and passed into law;
(2) The proper place for debating the proposed
effect of any Bill is the floor of the House itself or during
the Committee stage, that is to say during the normal processes
for the adoption of legislation;
(3) Before a Bill has been enacted, the Committee
does not have available to it a fixed and final text to construe:
there is always the possibility of withdrawal and amendment. Moreover,
the Committee does not have available to it settled and complete
materials (including statements in Hansard) which may be relevant
in determining the proper construction of the Bill once it comes
to be enacted: see Pepper v Hart [1993] AC 593;
This point is of particular relevance in relation
to the issues arising on the motion of Lord Mayhew. On 27 April
1999 there was a debate in Your Lordships' House on what was cl
4(2) of the Bill as introduced (now cl 7(2) of the Bill as amended),
in which the Lord Chancellor made some remarks about the object
and effect of that clause (Hansard Cols 166-170). It may be that
Lord Mayhew will seek to pray in aid part of what the Lord Chancellor
said. For its part, Government ministers in Your Lordships' House
had been briefed to clarify those remarks before this reference.
It would be premature for the Committee to attempt a definitive
legal interpretation of the Bill, before all relevant ministerial
statements may be known.
(4) The timetable for the passing of legislation
and the parliamentary procedure for the passing of legislation
are themselves political matters. The ordinary parliamentary procedures
which have been developed over time and through experience represent
a balance between the different political forces in play—on
the one hand, the legitimate interest of the Government to secure
the enactment of its legislative programme; on the other, the
interest of the Opposition and others to ensure proper debate
of proposed measures. If the Committee were readily to entertain
references for advisory opinions on Bills, there would be a serious
danger that the political compromise represented by the ordinary
procedure relating to the enactment of legislation would be undermined,
and that the procedure would become clogged and delayed by the
making of such references. It is respectfully submitted that the
Committee should be astute to ensure that the ordinary procedure
relating to the enactment of legislation is not undermined. (It
is for note that concern has been expressed on behalf of the Government
regarding the impact of this reference to Your Lordships' Committee
on the timetable for bringing its legislation onto the statute
book; see Baroness Jay of Paddington, Hansard, 27 July
1999, col 1415);
(5) It is possible that the true construction
of a statute may depend upon whether it is being construed and
applied to facts arising before 2 October 2000 (the date on which
it has been announced that the substantive parts of the Human
Rights Act 1998 are to be brought into force, including the new
interpretative obligation by reference to the European Convention
on Human Rights—"ECHR"—contained in s 3
of that Act), or construed and applied to facts arising after
that date. (And it should be noted that Lord Mayhew has required
that the Statement of Issues for Your Lordships should include
reference to the ECHR). In these circumstances, consideration
of the issue as an abstract question of law is not appropriate.
11. Further, Your Lordships' House sitting
in its judicial capacity will generally not entertain questions
upon academic points of law, save in exceptional circumstances:
R v Secretary of State for the Home Department, ex p Salem
[1999] 2 WLR 483 (HL). It is submitted that Your Lordship's
Committee should be still more careful not to entertain abstract
arguments on a Bill not yet passed into law, by reason of the
particular factors in relation to a Bill not yet passed into law
identified at paragraph 10(1) to (5) above.
12. It is submitted that the present reference
is not an exceptional case, and that it would not be appropriate
for the Committee to arrive at any determination upon the question
referred.
13. If, contrary to that submission, the
Committee is of opinion that it should arrive at a determination
upon the question referred, then it is submitted that the Committee's
proper function is to determine the matter according to law (or,
in this case, the putative law), upon legal argument. It is no
part of the function of a court, and it is respectfully submitted
no part of the function of the Committee, to rule upon the merits
or wisdom of any legislation or proposed legislation: see eg Madzimbamuto
v Lardner-Burke [1969] AC 645 (PC).
THE CONTEXT
The Bill
14. The Bill (ie as amended, and as printed
on 1 July 1999) provides, in part, as follows:
1. No-one shall be a member of the House
of Lords by virtue of a hereditary peerage.
4. (1) The holder of a hereditary peerage
shall not be disqualified by virtue of that peerage for—
(a) voting at elections to the House of Commons,
or
(b) being, or being elected as, a member of that
House. . .
7. (1) Sections 1 to 6 . . . shall come
into force at the end of the Session of Parliament in which this
Act is passed.
(2) Accordingly, any writ of summons issued
for the present Parliament in right of a hereditary peerage shall
not have effect after that Session unless it has been issued to
a person who, at the end of the Session, is excepted from section
1 by virtue of section 2.
(3) The Secretary of State may by order make
such transitional provision about the entitlement of holders of
hereditary peerages to vote at elections to the House of Commons
or the European Parliament as he considers appropriate.
(4) An order under this section—
(a) may modify the effect of any enactment
or any provision made under an enactment, and
(b) shall be made by statutory instrument which
shall be subject to annulment in pursuance of a resolution of
either House of Parliament.
15. Prior to its amendment on report, these
clauses were numbered 1, 2 and 4 respectively. New Clause 7(1)
is in terms different to old Clause 4(1) but with similar effect,
and new Clause 7(2) added words to old Clause 4(2) to take account
of new Clause 2. Likewise, new Clause 4 has been expanded to take
account of new Clause 2. Hereafter, references are to the new
clause numbers.
Explanatory Notes
16. When the Bill was introduced on 19 January
1999 in the House of Commons, a set of Explanatory Notes (prepared
by the Cabinet Office) was also issued. These Notes were issued
by the Government for use in the parliamentary debates, in accordance
with the new parliamentary practice introduced at the start of
this Session. It is submitted that they may be referred to for
the purposes of construction of the statute under the rule in
Pepper v Hart, as being of equivalent status to a ministerial
statement concerning the clauses.
17. The Explanatory Notes on clause 7 (old
clause 4) state, inter alia:
15. Those who are members of the House of
Lords by virtue of a hereditary peerage will cease to be members
of the House of Lords at the end of the Session in which the Bill
is passed . . .
17. Clause 4(2) overturns any presumption
that a hereditary peer might have a right or obligation to sit
and vote in the House of Lords for the rest of the current Parliament
by virtue of having already received a writ of summons for this
Parliament. A writ of summons is a document issued by the Crown
under the Royal Prerogative calling the person addressed to attend
Parliament. On commencement of the Bill, no hereditary peer who
has received a writ of summons for the current Parliament will
have any right or obligation to sit or vote in the House for the
remainder of the Parliament.
ECHR
18. In support of his contentions as to
the effect of the Bill (if enacted), Lord Mayhew refers to Article
3 of Protocol 1 to the European Convention on Human Rights ("ECHR"),
which provides:
The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion
of the people in the choice of the legislature.
THE FORM
OF A
WRIT OF
SUMMONS TO
A PEER
19. A writ of summons to a peer to attend
a Parliament issued before a Parliament begins is, in relevant
part, in the following terms:
Whereas by the advice and assent of Our Council
for certain arduous and urgent affairs concerning Us the state
and defence of Our United Kingdom and the Church We have ordered
a certain Parliament to be holden at Our City of Westminster on
the day of next ensuing And there to
treat and have conference with the Prelates Great Men and Peers
of Our Realm We strictly enjoining command you upon the faith
and allegiance by which you are bound to Us that the weightiness
of the said affairs and imminent perils considered (waiving all
excuses) you be at the said day and place personally present with
us and with the said Prelates Great Men and Peers to treat and
give your counsel upon the affairs aforesaid . . .
20. A writ of summons to a peer who has
not received the former type of writ, to attend a Parliament after
it has commenced, is, in relevant part, as follows:
Whereas Our Parliament for arduous and urgent
affairs concerning Us the state and defence of Our United Kingdom
and the Church is now met at Our City of Westminster.
We strictly enjoining command you upon the faith
and allegiance by which you are bound to Us that considering the
difficulty of the said affairs and dangers impending (waiving
all excuses) you be personally present at Our aforesaid Parliament
with Us and with the Prelates Nobles and Peers of Our said Kingdom
to treat and give your counsel upon the affairs aforesaid . .
.
LORD MAYHEW'S
ARGUMENT
21. It is important to note that in the
course of debate in Your Lordships' House, there were two strands
to the argument of those peers who maintained that the Bill, if
enacted, would not attain the Government's objective (based upon
the Opinion of Mr Lofthouse):
(1) Clause 1 would not be effective to remove
the right of hereditary peers to sit as a member in Your Lordships'
House, because (so it was said) a hereditary peer is not a member
of Your Lordships' House "by virtue of a hereditary peerage",
but rather by virtue of receiving a writ of summons from the monarch.
On this argument, the Bill (if enacted) would not remove the rights
of hereditary peers to sit as members of Your Lordships' House
in the current Parliament or in any future Parliament—and
would completely fail to achieve its intended effect; and
(2) A writ of summons to a peer is (it is
said) fully spent once it is answered to, and has no continuing
effect beyond that time. On this footing, it is argued that cl
7(2) (old 4(2)) can have no effect in relation to a peer in the
present Parliament who has in fact answered to his writ of summons
and entered the present Parliament. Therefore (it is said), cl
7(2) could only have any effect in relation to a peer who has
received a writ of summons to the present Parliament, but has
not yet answered to it.
22. Counsel for Lord Mayhew has informed
Counsel for the Government that the first of these arguments has
now been abandoned (and see the letter of 15 September 1999 from
the Treasury Solicitor to Herbert Smith, for Lord Mayhew). The
second argument is (as the Government understands it) still maintained.
Lord Mayhew submits that the Bill (if enacted) will not have the
full effect which the Government wishes it to have, in that hereditary
peers who have already answered to their writs of summons in this
Parliament will be entitled to continue to sit as members of Your
Lordships' House until the end of this Parliament.
THE GOVERNMENT'S
SUBMISSIONS
23. Upon the question referred, the Government
submits that, on their proper construction, Clauses 1 and 7 of
the Bill (if enacted) will have the effect that all hereditary
peers (whether they have answered to a writ of summons for this
Parliament or not) will cease to be entitled to sit as members
of Your Lordships' House as from the end of the Session in which
the Bill is enacted, subject only to the operation of Clause 2
of the Bill (the saving for the Weatherill peers).
24. The Government will submit as follows:
(1) Clause 1, together with Clause 7(1),
will have the effect that all hereditary peers, whether they have
answered to a writ of summons for this Parliament or not, will
cease to be members of Your Lordships' House (subject only to
the operation of Clause 2) at the end of the Session in which
the Bill is enacted (paragraphs 25-36 below);
(2) Further, Clause 7(2), together with Clause
7(1), confirms that all hereditary peers who have received a writ
of summons issued for the present Parliament (whether that writ
of summons has been answered to or not) will cease to be entitled
to sit in Your Lordships' House (subject only to the operation
of Clause 2) at the end of the Session in which the Bill is enacted
(paragraphs 31-37 below);
(3) Article 3 of Protocol 1 to the ECHR does
not affect the construction of the Bill (paragraphs 38-46 below).
(1) THE EFFECT
OF CLAUSE
1, TOGETHER WITH
CLAUSE 7(1)
25. By virtue of Clause 7(1), Clause 1 is
to come into force at the end of the Session of Parliament in
which it is passed.
26. It is Clause 1 which is the primary
operative provision, to remove the rights of hereditary peers
to sit as members of Your Lordships' House.
27. Clause 1 undoubtedly has that effect
in relation to all future Parliaments, as Lord Mayhew now concedes.
No hereditary peer will be entitled to sit as a member of Your
Lordships' House in any future Parliament (save only that he may
be a member of Your Lordships' House if made a life peer or by
virtue of being excepted under Clause 2 of the Bill).
28. Clause 1 has this effect by removing
the entitlement to sit as a member of Your Lordships' House from
anyone who is a member "by virtue of a hereditary peerage".
It was originally argued by Mr Lofthouse in his Opinion, and by
Lord Mayhew and his supporters in debate, that a hereditary peer
is not a member of Your Lordships' House by virtue of his hereditary
peerage, but by virtue of receiving a writ of summons. However,
this has been abandoned.
29. The position is plain, and now accepted
to be so (in relation to future Parliaments) by Lord Mayhew. That
Clause 1 will be effective is clear, by reason of the following:
(1) Since the Earl of Bristol's Case (1626),
it has been established in Your Lordships' House that a hereditary
peer is entitled as of right to be sent a writ of summons to Parliament:
see Viscountess Rhondda's Claim [1922] 2 AC 339, 353-355, 359
(Viscount Birkenhead LC)—a hereditary peer is entitled ex
debito justitiae to a writ of summons;
(2) Mere receipt of a writ of summons, where
the addressee is not a hereditary peer (or, now, a life peer),
does not entitle the addressee to sit as a member of Your Lordships'
House: The Wensleydale Peerage Case (1856) 5 HLC 958. Thus,
it is the fact of being a hereditary peer which entitles such
a peer to sit as a member of Your Lordships' House, and receipt
of the writ of summons has no legal effect on its own;
(3) It is not open to a hereditary peer to
maintain his right to sit in the House of Commons by refusing
to apply for a writ of summons: In re Parliamentary Election
for Bristol South East [1964] 2 QB 257, 273 (the argument
of the Respondent, which was rejected), 276 (the main issue
of law identified), 277, 285-287 (the declining importance
of the writ of summons is traced), 288 (decision on this
point);
(4) Thus, the language of Clause 1 is entirely
appropriate to achieve the Government's objective, of disentitling
hereditary peers from sitting as members of Your Lordships' House.
Moreover, it is also clear that that is the object of the Bill,
and construing it to achieve its object supports the Government's
construction.
30. The limited issue, then, between the
Government and Lord Mayhew, is whether Clause 1 is confined in
its effect to future Parliaments, and will not apply to the hereditary
peers sitting in the present Parliament after the end of the Session
in which the Bill is enacted. The Government respectfully submits
that it is erroneous to construe Clause 1 so as to limit its effect
in the manner for which Lord Mayhew contends:
(1) Clause 1 is in completely general terms.
It draws no distinction between hereditary peers who sit in the
present Parliament and hereditary peers in future Parliaments
(nor, for that matter, does it draw any distinction between hereditary
peers who have already received and answered to a writ of summons,
on the one hand, and, on the other hand, hereditary peers who
have already received but have not answered to a writ of summons
and hereditary peers who succeed to their titles before the end
of this Parliament but have not yet received a writ of summons);
(2) Clause 1 is also in very clear terms:
once the right to be a member of Your Lordships' House by virtue
of a hereditary peerage has been abolished (from the end of the
Session in which the Bill is enacted), no hereditary peer will
be a member of Your Lordships' House (unless made a life peer
or excepted under Clause 2). This means that no such hereditary
peer will, from that time, be entitled to participate in the deliberations
and votes of Your Lordships' House;
(3) Clause 7(1) provides that Clause 1 (along
with other provisions) shall come into force at the end of the
Session of this Parliament in which it is passed. This provision
only makes sense if it is intended that Clause 1 is to have effect
during the current Parliament, after the end of the Session in
which the Bill is enacted;
(4) There is no policy of the Government
which would be promoted by seeking to give Clause 1 anything other
than its natural meaning. The Government has made it abundantly
clear that it wishes to abolish the right of hereditary peers
to sit as members of Your Lordships' House at the first opportunity
and within this Parliament: see the Labour Party Manifesto for
the 1997 General Election, at pp 32-33, and the White Paper, Modernising
Parliament, Reforming the House of Lords, esp para 11 of Chapter
5;
(5) The interaction of Clauses 1 and 4 (removal
of disqualification) demonstrates that it is intended that Clause
1 should disentitle hereditary peers from sitting as members of
Your Lordships' House with immediate effect after the end of the
Session in which the Bill is enacted. The main reason for the
disqualification of a peer from sitting as a Member of the House
of Commons is the incompatibility of his duty to attend in the
House of Lords with his duty to attend at the same time in the
House of Commons (see In re Parliamentary Election for Bristol
South East [1964] 2 QB at 286-287). Since Clause 4(1) will
come into effect at the end of the Session in which the Bill is
enacted, after that time a hereditary peer may vote[1],
stand for election, and be elected, as an MP—including as
an MP in the same Parliament (eg if there were a by-election).
Against the background of the constitutional principle of the
incompatibility of being a member of the House of Commons at the
same time as being a member of the House of Lords which is so
well established, it is again obvious that it is intended that
Clause 1 will operate to prevent hereditary peers (except Weatherill
peers) from sitting as members of Your Lordships' House as from
the end of the Session in which the Bill is enacted, and will
so prevent them within the life of the current Parliament;
(6) The interaction of Clauses 1 and 2 also
supports the Government's submission. Clause 2(4) contemplates
the making of Standing Orders in anticipation of the enactment
or commencement[2] of Clause
2, for the election of the Weatherill peers. That provision looks
to the need to elect the Weatherill peers without delay, ie in
the course of this Parliament. Accordingly, it presupposes that
Clause 1 will have effect to disentitle hereditary peers from
being members of Your Lordships' House in the current Parliament.
(2) THE EFFECT
OF CLAUSE
7(2)
31. Further, Clause 7(2), together with
Clause 7(1), confirms that all hereditary peers who receive or
have received a writ of summons issued for the present Parliament
(whether that writ of summons has been answered to or not) will
cease to be entitled to sit in Your Lordships' House (subject
only to the operation of clause 2) at the end of the Session in
which the Bill is enacted.
32. Like Clause 1, Clause 7(2) will have
effect from the end of the Session of Parliament in which the
Bill is enacted.
33. It is clear that Clause 7(2) has been
included out of an abundance of caution in relation to any argument
which might be based upon the supposed significance of a writ
of summons (caution which was clearly justified, in the light
of the argument in the debates in Your Lordships' House about
that very topic). This is plain from the Explanatory Notes on
Clause 7: paragraph 15 explains the intended effect of Clause
1 being brought into effect at the end of the Session (in line
with the Government's submissions under heading (1) above); paragraph
17 refers to Clause 7(2) ("overturns any presumption . .
."). In fact, in the face of the clear meaning and effect
of Clause 1, together with Clause 7(1), it is submitted there
can be no presumption that a hereditary peer will remain entitled
to sit as a member of Your Lordships' House after the end of the
Session in which the Bill is enacted.
34. But in case there is argument about
there being such a presumption, Clause 7(2) disposes of it. It
is a provision which is supplemental to the operation of Clause
1 (hence the introductory word, "Accordingly"), and
in no way impinges upon or cuts down the operation of Clause 1.
It is a provision intended to make absolutely sure that the Government's
objective, of disentitling hereditary peers from sitting as Members
of Your Lordships' House, during the life of the present Parliament,
is achieved.
35. Lord Mayhew's argument (as the Government
understands it) is that Clause 7(2) can only apply in relation
to writs of summons to peers for the present Parliament which
have not been answered to, because those writs of summons which
have been answered to have completely spent their effect, so that
Clause 7(2) can have no impact upon them.
36. The Government responds as follows:
(1) Lord Mayhew's argument is misconceived.
A writ of summons to a Parliament has continuing effect over the
life of that Parliament. The writ is, by its own terms, the command
of the monarch that the peer attend to give his counsel on the
affairs of state. The command is not spent once the peer turns
up at Parliament—the monarch desires the counsel of the
peer throughout the Parliament, and the command expressed in the
writ—and the corresponding right and obligation to attend—continue
to have effect throughout that Parliament. Plainly, the monarch's
command would not be fully obeyed by a peer who answered the summons,
arrived at Parliament and then immediately departed again. This
point is made very clearly by Viscount Birkenhead LC in Viscountess
Rhondda's Claim [1922] 2 AC 339, 363-365 (in former times,
those who were excused from attendance on any day would be listed
in the records of that day). See also Standing Order 21, as adopted
in 1958, concerning leave of absence—which is predicated
upon the continuing effect of the writ of summons throughout the
life of a Parliament (see in particular sub-paragraph (3)); and
the current version, which is Standing Order 20;
(2) A writ of summons also has continuing
effect, in that (in the case of a hereditary peer) it is only
by the combination of his hereditary peerage and the writ of summons
that he is entitled to sit as a member of Your Lordships' House.
Thus, in the Earl of Bristol's Case, for example, it was
necessary for the Earl to petition for the issue to him of a writ
of summons before he was entitled to attend as a member of Your
Lordships' House—he could not simply turn up and demand
to be admitted. See also Viscountess Rhondda's Claim, at
359. Although formal presentation of the writ occurs only once,
the writ has continuing legal effect throughout the Parliament;
(3) The Government has made it clear that
Clause 7(2) applies in the case of all writs of summons, whether
answered to or not: see Baroness Jay, Hansard 27 July 1999, Col
1414; paragraphs 1, 15 and 17 of the Explanatory Notes.
37. Thus Clause 7(2) supplements Clause
1 as a "belt and braces" provision. Clause 1 removes
within this Parliament one necessary precondition to sitting as
a member of Your Lordships' House (namely, being a hereditary
peer). Clause 7(2) spells out that a second necessary precondition
to sitting as a member of Your Lordships' House (namely, being
in receipt of a writ of summons) is also removed within this Parliament.
(3) ARTICLE 3
OF PROTOCOL
1 TO THE
ECHR
38. The Government submits (a) that the
Bill is in no way incompatible with Article 3 of Protocol 1 ("Article
3"); and in the alternative (b) that in any event Article
3 cannot affect the clear meaning and intent of Clauses 1 and
7 of the Bill.
No breach of Article 3
39. Article 3 imposes an obligation "to
hold free elections at reasonable intervals by secret ballot,
under conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature".
That is to say, Article 3 imposes an obligation as to the conditions
under which elections may be held, and an obligation to hold elections
at reasonable intervals. Contracting States have a wide margin
of appreciation in imposing conditions on the right to vote: Mathieu-Mohin
v Belgium (1987) 10 EHRR 1, paras 52 and 54.
40. Article 3 being concerned simply with
the conditions under which elections are held, the Bill could
not, as a matter of principle, infringe Article 3:
(1) There is no complaint (nor could there
be) that Article 3 was not complied with at the time of the last
election, albeit peers had no vote. A state may impose conditions
for participating in elections, including disqualifications justified
by the particular constitutional context of the state concerned:
thus the disqualification in Mathieu-Mohin was held not
to infringe Article 3;
(2) By the time of the next general election,
hereditary peers (unless they remain members of Your Lordships'
House on some other basis) will have the right to vote for MPs,
either because they will then be on the electoral roll or because
arrangements will be made under Clause 7(3) to place them on the
roll: see the Annex to the 10th Report of the Select Committee
on Delegated Powers and Deregulations, Session 1998-99 (24 March
1999). So there could be no breach of Article 3 at that stage
either;
(3) As to the intervening period, should
there be a by-election in the constituency where a hereditary
peer lives, it is open to the Secretary of State to make provision
under Clause 7(3) for the peer to be deemed to be on the electoral
register, so that he may vote. So there can be no incompatibility
of the Bill with Article 3 at that stage either.
41. This analysis exhausts the relevance
of Article 3. In particular, there is no breach of Article 3 simply
because, at some time between elections, persons for the first
time satisfy conditions which will enable them to vote (eg turn
18) or cease to be subject to disqualification (eg by reference
to criminal convictions: see, for example, the provisions of the
Representation of the People Act 1983, such as s 160(4)—disqualification
for five years if found guilty of electoral malpractice), but
they are not given an immediate opportunity to exercise their
new right to vote. There is no obligation in Article 3 to ensure
that people are governed by a body for which they have had, in
the past, a right to vote; there is no requirement in Article
3 that there be any by-election whenever, between elections, someone
becomes eligible to vote who was not eligible before.
42. Article 3 refers to the holding of elections
at reasonable intervals. This makes clear what is in any event
obvious, that, having regard to the desirability in democratic
constitutions of ensuring political stability and effectiveness
of government, there is no obigation to hold new elections merely
because of changes in circumstances between elections set to be
held at reasonable intervals.
43. It follows that there is no obligation
to permit hereditary peers, who did not have the right to vote
in elections previously, because of disqualification, but will
now cease to be disqualified, to be able to exercise their new
rights before the next election which falls due according to the
national rules. And that being the case, nor can there be any
obligation to permit them to continue to have a vote in the legislature
itself by continuing to be members of Your Lordships' House until
the end of the Parliment.
44. The Bill is concerned with the right
of hereditary peers to sit in the House of Lords. The hereditary
principle does not itself promote the value which Article 3 requires
should be promoted, namely "the free expression of the people
in the choice of the legislature". Moreover, the Government's
assessment is that the central value in Article 3 will be better
promoted by implementation of the changes in the Bill at the first
opportunity. The Government has a wide margin of appreciation
as to what are the best constitutional arrangements for the United
Kingdom, within which that assessment clearly falls. Accordingly,
Lord Mayhew's claim that hereditary peers must be permitted to
continue to act as legislators, thereby extending the application
of the hereditary principle, derives no support from Article 3.
45. Further and in any event, hereditary
peers who are members of Your Lordships' House (ie, those who
now participate as legislators, but would cease to do so when
the Bill is enacted) will have the right of voting for the Weatherill
peers to be selected for the purposes of Clause 2: see the Standing
Orders adopted for this purpose on 26 July 1999.
No effect upon construction of the Bill
46. As submitted under headings (1) and
(2) above, the Bill is very clear in its terms. Whatever the position
in relation to Article 3, it cannot prevent the Bill having effect
according to its clear terms:
(1) In the period before the substantive
provisions of the Human Rights Act 1998 are brought into effect,
on 2 October 2000, resort may only be had to the ECHR as an aid
to the construction of a statute if the statute is ambiguous:
R v Secretary of State for the Home Dept, ex p Brind [1991]
1 AC 696, 747-748. The Bill, if enacted, is not ambiguous.
(2) In the period after 2 October 2000, the
Courts will be bound by the new interpretative obligation in s
3 of the 1998 Act, which provides:
So far as it is possible to do so, primary legislation
and subordinate legislation must be read and given effect in a
way which is compatible with the Convention rights.
Even applying this more stringent test, Clauses
1 and 7 of the Bill are in very clear terms, and it would not
be possible without completely re-writing the provisions to construe
them in anything other than their natural sense. It will not be
the proper function of the courts to re-write legislation, even
after the 1998 Act is brought into force: compare Clarke v
General Accident Fire and Life Assurance Corp Plc [1998] 1 WLR
1647, 1656A-D (Lord Clyde, considering the impact of the similar
strong Marleasing interpretative obligation under EC law).
Lord Williams of Mostyn, QC
HM Attorney General
Philip Sales
September 1999
1 Subject to rules on registration as a vote on the
electoral register, which will be modified under Clause 7, as
to which see paragraph 40 below and the Annex to the 10th Report
of the Select Committee on Delegated Powers and Deregulation,
Session 1998-99 (24 March 1999). Back
2
At the end of the Session in which the Bill is passed: Clause
7(1). Back
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