Select Committee on Privileges Minutes of Evidence

Examination of Witnesses (continued)



  CHAIRMAN: Did the Divisional Court say that the right could be overridden by necessary implication?

  MR BELOFF: They did, my Lord. That is a concession too far. "Such basic rights are not to be overridden by the general words of the statute since the presumption is against the impairment of such basic rights." We say the right here will play no less weight or significance than the rights under consideration in the cases analysed by Lord Browne-Wilkinson.

  Then your Lordships will see secondly the speech of Lord Steyn, at page 587. Again I will seek to be limited in citation. This is between letters D and E, 274 of the bound volume. "For at least a century it has been thought in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness." i.e. you need clarity colloquially to change the law if the law enshrines rights of constitutional significance. He then turns to what he describes as principles of legality in the analysis of Professor Sir Rupert Cross. Again, that passage is set out in full at 588. Again, I am not going to trouble your Lordships with it. He says it has been applied to certain recent cases in the public law area where indications of natural justice have been held to be substantiated.It is really the passage at 589, referring to these two cases, Doody, about the right of prisoners to make representations to the Home Secretary before he fixes the tariff for their detention, and Venables, which was another issue in relation to the fixing of a tariff. What Lord Steyn says: "It should be noted that in ex parte Doody and ex parte Venables the principle of legality served to protect procedural safeguards provided by the common law, but the principle applied with equal force to protect substantive, basic or fundamental rights."

  My Lords, secondly, can I turn to a still more recent decision of your Lordships' House in the case of ex parte Simms in bundle iv, tab 53, which concerned whether or not it was lawful by delegated order to inhibit the right of a prisoner to have access to journalists to whom he wished to make representations about the wrongness of his conviction. Lord Steyn and Lord Hoffmann spoke on the matter of general principle. If your Lordships could go first of all to the speech of Lord Hoffmann which one finds at page 341, 1046 of the bound volume, where it says, "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document." Let me just pick up the point put to me by my Lord Chairman. It seems that Lord Hoffmann appears to consider that an appropriate case necessary by implication may qualify, whereas Lord Browne-Wilkinson appeared at any rate to reserve the point in the Pierson case.

  CHAIRMAN: Do you happen to have the page number of the court judgment?

  MR BELOFF: It is in volume iv, tab 51, where Mr Justice Laws again sets out the principle. There is a very short passage from Lord Steyn on the previous page, F to G, 340 of the report, 1045 of the bound volume, which says, "But one cannot lose sight that there is at stake a fundamental or basic right, namely the right of a prisoner to seek through oral interviews to persuade a journalist to investigate the safety of the prisoner's conviction and to publicise his findings in an effort to gain access to justice for the prisoner. In those circumstances even in the absence of an ambiguity there comes into play a presumption of general application operating as a constitutional principle ... this is called `the principle of legality'" and he refers to his own speech and the speech of Lord Browne-Wilkinson in the Pierson case to which I have already drawn the Committee's attention. Applying this principle, he continues, "I would hold that paragraphs 37 and 37A leave untouched the fundamental and basic rights asserted by the applicants in the present case."

  My Lords, the significance of this lies, in our submission, in this way. The Government's case depends, as I hope we correctly read that case, on suggesting that the general words that are used in clause 1 are capable by themselves of providing a solution to the question referred to this Committee; in other words, their very breadth is said to be conclusive in favour of the Government's case. We say, on the contrary, the principle of legality which has been referred to in recent decisions of this House sitting as an Appellate Committee shows that general words are insufficient to qualify pre-existing fundamental or constitutional rights and one would assume, even in the absence of ambiguity, that they do not do so. We say that in this case there is, of course, the added element that the Government have themselves in clause 7 recognised that the general words used in clause 1 were insufficient by themselves and it is the particular words used in clause 7 and the significance of those words upon which Lord Mayhew contends that the resolution of the question depends. We remind your Lordships that all this has to be seen in the context of a recognition that in privilege and House composition cases, if I can coin a somewhat ugly but convenient phrase, this principle of legality operates with added force. That is the first issue of construction.

  The second which we suspect ought to be uncontroversial is this: the intention of the Government is not to the point unless the words used are apt to achieve it. The Government's objectives, which we do not quarrel with in the sense of acknowledging what they are, are referred to at several junctures in the Government's printed case, but it is elementary law that it is the intention of the legislature that a body vested with functions of interpretation, usually courts of law—in this instance, as it were, proactively this Committee—seek to ascertain and that such intention is to be found according to principles of interpretation of hallowed ancestry in the words that are actually used. If an Act says that all buildings are to be painted red, it is not to the point that the Government's intention in manifesto before an election or in a white paper thereafter was that all Government buildings are to be painted blue, however many times they might proclaim that intention in debates in the House or elsewhere. Statements of the kind envisaged in the classic and modern case of Pepper v. Hart where your Lordships determined, sitting judicially, that it was appropriate when all other routes to construction appeared to be blocked and there was ambiguity upon the face of legislation to resort for limited purposes to Hansard in order to ascertain whether there was a clear, unequivocal statement of intent bearing upon the particular point of construction that was before the court, in our respectful submission was never intended to provide a mechanism whereby a Government could simply seek to bypass the effect of the words that were used in the legislation by pointing to what that Government's intention was in promoting its enactment.

  If your Lordships would be good enough to turn briefly to what is said in paragraph 10(3) of the Government's case your Lordships will see (this is at page 24 of the bound volume, page 4 of the Government's case) that this is in the context of the argument as to why it was premature for this Committee to consider the matter, but the point is freestanding and relevant to the issue I raise. It says, second paragraph, "On 27 April 1999 there was debate in your Lordships' House on what was clause 4(2) of the Bill as introduced (now clause 7(2) of the Bill as amended), in which the Lord Chancellor made some remarks about the object and effect of that clause. It may be that Lord Mayhew will seek to pray in aid part of what the Lord Chancellor said." My Lords, I hope, if I may put it this way, that we have better arguments available to us than to rely upon what may properly be said to have been a slip of the tongue by a Lord Chancellor who has spoken quite adamantly to different effect on a number of occasions. So I am not lured into that particular trap. It is the next sentence which is important, "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." My Lords, it is not, with respect, for a Government to seek to clarify its intent with a view by that means to imposing upon legislation either on the Statute Book or in draft a meaning other than that which it properly bears. It is a constitutional heresy to venture an argument of that kind. In our respectful submission it is clear beyond all doubt that it is Parliament's intention which is critical and one may truthfully say that Parliament is in doubt as to the present meaning of this Bill, that is the very reason why the motion for the reference was carried. So we say that of course governments can, via Parliament, alter the law. What they cannot alter is language other than by deeming provisions. So that, as I conceded realistically at the outset, is an entire perception of what the Government's aim may be without impairing our submission that they have signally failed to achieve it.

  I take your Lordships, if I may, to conclude on this point back to paragraph 4 of our printed case, page 5 of the bound volume. The first six lines merely set out in writing what I have said orally and therefore it is unnecessary to repeat them since your Lordships have been good enough to study this case, but in the light of the way in which the Government repeatedly come back to their refrain that our intention is clear as to statements of general authority both in the context of general legislation and, indeed, in the context of legislation related to the composition of the House, perhaps I could just take your Lordships to Black-Clawson which is in volume ii, tab 43. This was to do with an issue of construction in a commercial dispute of the Foreign Judgments (Reciprocal Enforcement) Act 1933 and whether, by reason of the provisions of that Act, a previous German judgment holding that the action was time-barred under German law was "conclusive" to bar its pursuit under English law, and there were issues raised as to the propriety of the House looking at certain parliamentary material as an aid to construction. In order to determine whether that was proper or otherwise the House had to remind themselves as to the fundamental principles of construction which operate in this jurisdiction and there are three passages in particular.

  The first is a passage from the speech of Lord Reid, 613 of the report, 587 of the bound volume, second main paragraph, where it says, "In this case it appears to me to be unusually important to consider as aids to construction all other material which the law allows us to look at, and I shall first state my view on that matter. We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. In the comparatively few cases where the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no further inquiry is permissible." So not only does he emphasise with all the authority that any observation of Lord Reid commands in this area that one is looking to the words used rather than anything else, he also emphasises that one is looking through the words to detect Parliament's intention which may not coincide with the intention of the Government.

  Lord Diplock, page 638 of the report and page 612 of the bound volume, puts it as a matter of high principle in this way: "The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says. In construing it the court must give effect to what the words of the statute would be reasonably understood to mean by those whose conduct it regulates. That any or all of the individual members of the two Houses of Parliament that passed it may have thought the words bore a different meaning cannot affect the matter. Parliament, under our constitution, is sovereign only in respect of what it expresses by the words used in the legislation it has passed." For present purposes, of course, your Lordships are looking at the Bill on the hypothesis which appears to be realistic in the light of the history of the procedures to date, that is the Bill would remain in its present form unless certain recommendations or advice were given by this Committee.

  My Lord, Lord Simon of Glaisdale at 645 of the report, 619 of the bound volume, says: "Courts of construction interpret statutes with a view to ascertaining the intention of Parliament expressed therein. But, as in interpretation of all written material, what has to be ascertained is the meaning of what Parliament has said and not what Parliament meant to say. This is not a self-evident juristic truth. It could be urged that in a parliamentary democracy, where the purpose of the legislature is to permit its electorate to influence the decisions which affect themselves, what should be given effect to is what Parliament meant to say; since it is to be presumed that it is this that truly reflects the desired influence of the citizens on the decision-making which affects themselves." Your Lordships will see that he then gives three reasons why that is not an approach that either should be commended or materially does in fact operate. So once again it is a clear statement of principle, an intention of Parliament (not Government, not individual members of either House) and, second, stresses that one looks to the words that are actually used. This was at a stage, of course, as your Lordships will know, when parliamentary materials were deemed to be in effect alien to the exercise of construction, but the same general approach has survived even that modification.

  If your Lordships could look very briefly at what was said in Pepper v. Hart on this particular matter, this is volume iii, tab 48. Just to remind those of your Lordships who did not participate in this matter judicially, this was a case which involved a question of revenue law and on which the House determined that it might be advantageous to consider whether it would be beneficial to have resort to parliamentary materials and speeches in the House as an aid to construction. It adjourned the tax appeal for that purpose. It determined that by a majority, the Lord Chancellor, Lord MacKay being a dissenting voice, it would be so appropriate and then continued to resolve the tax issue with the benefit of that fresh material. I use this, however, just simply to remind your Lordships that although, as it were, the door was opened to that particular degree, there was no departure from the basic principles of construction that I have referred to.

  I illustrate that by reference to three brief passages in the speeches of the majority. Firstly, Lord Griffiths, 617, 857 of the bound volume, letter E: "The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature." Then he goes on to say, if it is ambiguous, why cut oneself off from any possible source of enlightenment, but, nonetheless, that is to ascertain what ambiguous words meant, not to undermine what may be clear words.

  Secondly, if your Lordships could go to page 620, the speech of Lord Oliver. Having said at 619 that he was a reluctant convert to the view that one might lift the curtain on parliamentary debate and the reason is at the foot of page 619, he says, "A statute is, after all, the formal and complete intimation to the citizen of a particular rule of the law which he is enjoined, sometimes under penalty, to obey and by which he is both expected and entitled to regulate his conduct ..." He says that he will permit or associate himself with the commission for a modicum of relaxation, but in the second main paragraph, between C and D, the second sentence of that paragraph, he says that relaxation only applies where the expression of the legislative intention is genuinely ambiguous or obscure or where a literal or prima facie construction leads to a manifest absurdity and where the difficulty can be resolved by a clear statement directed to the matter at issue.

  Finally, Lord Browne-Wilkinson, your Lordships will see, dealt with the matter at page 631, letter D. Mr Lester, who was counsel for the taxpayers and is now a member of your Lordships' House, said, "... did not urge us to abandon the exclusionary rule completely". His submission was that where the words of a statute were ambiguous or obscure or were capable of giving rise to an absurd conclusion it should be legitimate to look at the Parliamentary history, including the debates in Parliament, for the purpose of identifying the intention of Parliament in using the words it did use. He accepted that the function of the court was to construe the actual words enacted by Parliament so that in no circumstances could the court attach to words a meaning that they were incapable of bearing. He further accepted that the court should only attach importance to clear statements showing the intention of the promoter of the Bill, whether a minister or private member. He goes on to say, "There could be no dredging through conflicting statements of intention with a view to discovering the true intention of Parliament in using the statutory words."

  So the basic principle remains the same, there has been a modest relaxation in the materials that one may deploy for the purpose of operating that basic principle and Lord Browne-Wilkinson's limits as to what could or could not be referred to is not ascertained relevant in this particular case. That is found on page 634, letters D and F, a classic passage. This approach is entirely appropriate to peerage cases or peerage cases dealing with the composition of the House.I take your Lordships back for a penultimate time to the Viscountess Rhondda's Claim in volume i, tab 38. There was a measure of disagreement between members of the Committee as to how far one might travel outside the actual language of the law. I will take your Lordships, if I may, first to the majority expression of opinion on this particular issue. The Committee divided on the subsidiary matter. Viscount Haldane at page 383, 238 of the bound volume, says this: "The only other point made on the construction of the Act was that this Committee might be entitled to look at what passed while the Bill was still a Bill and in the Committee stage in the House. It was said that there amendments were and discussions took place which indicated that the general words of section 1 were not regarded by your Lordships' House as covering the title to a seat in it. But even assuming that to be certain, I do not think, sitting as we do with the obligation to administer the principles of the law, that we have the least right to look at what happened while the Bill was being discussed in Committee and before the Act was passed. Decisions of the highest authority show that the interpretation of an Act of Parliament must be collected from the words in which the Sovereign has made into law the words agreed upon by both Houses. The history of previous changes made or discussed cannot be taken to have been known or to have been in view when the Royal Assent was given. The contrary was suggested at the Bar, though I do not think the point was pressed, and I hope that it will not be thought that in its decision this Committee has given any countenance to it. To have done so would, I venture to say, have been to introduce confusion into well-settled law. In Millar v. Taylor the principle of construction was laid down in words, which have never, so far as I know, been seriously challenged, by Willes J. as long ago as 1769: `The sense and meaning of an Act of Parliament must be collected from what it says when passed into a law; and not from the history of changes it underwent in the house where it took its rise. That history is not known to the other House or to the sovereign'." We find Lord Dunedin supporting that approach at page 390, 245 of the bound volume, where he says, "I put aside all reference to what happened at the passing of the Act as regards amendments proposed and rejected; and I consider that the extract from the Journals of the House, tendered by the Attorney-General, fell to be rejected. I think it is well settled, and it would be mischievous to throw doubt on the doctrine, that in interpreting a statute you can only examine the statute itself and the state of the law at the passing thereof as that state can be gathered from other statutes, from judicial decisions and from writers of recognised legal authority in past times."

  Finally, let us look at Lord Wrenbury at 399. If your Lordships would just cast your eyes down page 254. Again, he dismisses reference to the debate upon the Bill, cites from the judgment of Mr Justice Wills in Millar v. Taylor, as Lord Haldane had cited and used that to reject the argument that the Journals of the House should be referred to in that particular context.

  Lord Phillimore, 403 to 404, was an agnostic as to whether or not the procedure of the House could be referred to. Lord Muir Mackenzie, a lay member of the House, 403, thought there was good sense, if I can put it that way, in so doing. It was really Viscount Birkenhead who was the most strenuous proponent of the view that one could travel outside the ambit of the words used and even he expressed himself with caution, that is at 349. I have to say that "with caution" is not a quality one ordinarily associates with Viscount Birkenhead. However, one notes that it was tempered by a degree of certainty. At 349 he refers to the Attorney-General's reliance upon an entry from the Journals of the House. One notes that, incidently, Journals of this House, not Hansard, it was a fairly restricted opening of the door that was being debated in Viscount Rhondda's Claim. He said the admissibility was debated but not decided. He himself had a clear view and he suggests that it became more and more plain that the petitioner's case completely failed without reference to the parliamentary history of the matter. He says, "On many grounds I regret this circumstance, for that history would upon its personal side have been worthy of the massive irony of Gibbon." Then he says at the last paragraph, "I none the less state most explicitly that I myself do not, as at present advised, accept the view that the proceedings of a Committee of Privileges are in all respects to be governed by a pedantic and absolute adherence to the rules which govern procedure in Courts of law. In particular, I make it plain that I am wholly unconvinced by any argument hitherto brought forward that a Committee of this House, sitting by its direction to report to the whole House upon its privileges, can or ought to be precluded from a reference to the Journal of this House in order to inform its mind upon any circumstance in the parliamentary history of that which is under investigation." Then he refers to an earlier precedent for a reference to the Journals of the House and says at 350, "Is not the present a matter in which such a reference, even though limited to a strictly illustrative purpose, might have afforded your Lordships much valuable assistance?"

  So there was a debate, but the majority were entirely clear in Viscount Rhondda's Claim that the traditional approach to statutory construction ought to govern cases involving the composition of the House. That is the second point that I make, I hope not unduly laboured, i.e. it was Parliament's intention, not the Government's and it is the words used rather than a construction that is sought to be forced upon those words through various ministerial statements in the House.

  It is convenient to deal with the Government's case at paragraph 16 on this matter. This is found at page 27 of the bound volume, where they suggest that the Committee should, at any rate, be free to consider explanatory notes prepared by the Cabinet Office as an aid to construction. I am not going to anticipate the submissions of the Attorney-General with which I am at present unfamiliar, but all I would respectfully submit by way of preemptive strike is that, firstly, reference to explanatory notes is not within the licence given to consider parliamentary proceedings even in Pepper v. Hart which is the most developed state of the law on such external reference. Secondly, as far as I am aware there is no precedent for their use and, indeed, I have encountered on occasion judges who have commented upon that particular feature. Thirdly, one notes, if your Lordships go to p48 of the bound volume, that the explanatory notes themselves explain why such a reference ought to be impermissible and that your Lordships should guard against being seduced into opening the door further to material of this character. As is said in the introduction, these explanatory notes relate to the House of Lords Bill, as brought from the House of Commons on 17 March 1999. They have been prepared by the Cabinet Office in order to assist the reader of the Bill and to inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. So we respectfully submit that the foundation of any exercise in interpretation is lacking and we ask your Lordships not to consider those materials. My Lord, those are the three points of construction I make.

  My Lord, can I then take your Lordships to what we say is the state of the law which the Bill would need to address were it to achieve its objective of denying rights to sit and vote in the House to all hereditary peers, the Weatherill peers excepted, who have not only been issued with a writ of summons at the start of the Parliament but who had also, in obedience to it, returned the writ and sat in this House. Your Lordships may have a deep familiarity with the procedures of Parliament and no doubt will immediately tell me if what I am reminding your Lordships of is unnecessary, but the key legal instruments have been set out no doubt by common consent of the parties on either side.

  One uses by way of contemporary illustration the proclamation that was of the root title of the present Parliament and it is set out on the last page of the bound volume, page 99. Your Lordships will see that Her Majesty has issued a proclamation for dissolving the present Parliament and declaring the calling of another. My Lord, in ancient and hallowed language she makes clear her intent and she accordingly, if your Lordships now go to the left-hand column, says: "We do hereby also, by this Our Royal Proclamation under Our Great Seal of Our Realm, require Writs forthwith to be issued accordingly by Our said Chancellor and Secretary of State respectively, for causing the Lords Spiritual and Temporal and Commons who are to serve in the said Parliament to be duly returned to, and give their Attendance in, Our said Parliament on Wednesday, the seventh day of May next, which Writs are to be returnable in due course of law," writs of summons for members of this House, writs of election for the House of Commons, and this is the underlying document of the Parliament. Focusing upon your Lordships' House as we do, we note that writs are to be issued and they are to be returnable in due course of law and they are to name a date and a place where that return is to be made.

  So the next or subsidiary or consequential document that it is necessary to consider is a writ of summons and your Lordships again have two examples of those at pages 95 and 96 and they are different in the sense that the former at page 95 deals with the fact where Parliament is not yet in session and the second deals with the fact where Parliament is already in session.

  I draw your Lordships' attention to the language of the former at page 95. Again using hallowed and traditional phraseology, taking the matter up at line 3, it says, "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"—the date no doubt to be filled in at the appropriate date—"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."

  So your Lordships see that the effect and purpose of the writ is to summons the peers for the purposes of giving advice to come to a particular place upon a particular day. It is against that background that Lord Mayhew's fundamental submission is developed. He accepts, I repeat, that the Bill could eject sitting Lords of Parliament from this Parliament, but he submits that the Bill does not contain words apt to achieve that objective and the reason he so submits can be summarised in this way. It is not the status of being a peer that gives the right to sit and vote. It is not the receipt of a writ of summons that gives the right to sit and to vote. It is the obedience to the writ, that is to say the very taking up of one's seat in the House and returning of the writ with which one has been issued which is the source of that particular right.

  My Lords, of course we accept, it would be idle to dispute, that there is a perceptible chain of causation. It is the status of peerage that generates the right to receive a writ of summons, although one notes, as your Lordships will be acutely aware, that not all peers enjoy that right. Those that are disqualified as minors or as bankrupts do not have such a right, but the majority enjoy it. Secondly, we accept that receipt of the writ which has been duly issued imposes a duty to make a return. Thirdly, we say that the making of a return to the writ pursuant to that obligation itself then generates the right and duty, subject to any leave of absence that may be obtained, to remain for the duration of the Parliament. But the fact that there is a perceptible chain of causation with these various links does not mean each stage cannot be seen as distinctive and does not make the less significant the fact that the Bill has chosen, for whatever reason, to attack such rights as there are as derived from the issue of the writ. The sequence is in fact well set out in Halsbury's Laws of England.LORD NICHOLLS OF BIRKENHEAD: Mr Beloff, before we go into more authorities, can you just help me on some basic points on the interpretation. Assuming this Bill is passed in its present form in this session and a hereditary peer, not a Weatherill peer, attends the next session, by virtue of what right do you say that peer would be entitled to sit?

  MR BELOFF: He would be entitled to sit by virtue of the fact that he had made a return to a writ previously issued and taken up his place in the House.

  LORD NICHOLLS OF BIRKENHEAD: So he would not be a member of the House, is that right?

  MR BELOFF: He would be a member.

  LORD NICHOLLS OF BIRKENHEAD: No, no, under clause 1 he would not be a member of the House, although notwithstanding 7(2) you say he would still have the right, do you?

  MR BELOFF: I say that 7(2) has to be read in association with clause 1. I said that 7(2) is the machinery by which the Bill has chosen to achieve the objectives set out in 7(1).

  LORD NICHOLLS OF BIRKENHEAD: Are you saying that after the end of this session the hereditary non-Weatherill peer will still be a member of the House or not?

  MR BELOFF: Yes, my Lord, I say he will.

  LORD NICHOLLS OF BIRKENHEAD: So you are saying that clause 1 does not have the effect of causing a peer to cease to be a member of the House even though 7(1) provides that clause 1 shall come into effect at the end of the session, are you not?

  MR BELOFF: Yes, but, my Lord, if 7(1) and clause 1 stood by themselves and there was no other clause to which one had to pay attention it might be that the argument your Lordship advances would have weight.

  LORD NICHOLLS OF BIRKENHEAD: I am not advancing an argument, I am asking a question.

  MR BELOFF: I understand that. Your Lordship was putting a particular point of view for the purpose of it being tested. What we say is that 1, 7(1) and 7(2) have to be regarded as cumulative, they are linked and to that extent, my Lord, clause 7(2), which says that the effect of section 1 coming into force at the end of a session of Parliament in which the Act is passed is that the writ of summons issued is not going to have effect. So that is the dimensions of the enactment. It does not go on to say "writ of summons issued (and returned to)".

  LORD NICHOLLS OF BIRKENHEAD: I understand, but the effect of what you are saying is that, according to the argument you are advancing, 7(2) cuts down the scope of 7(1).

  MR BELOFF: It is so, my Lord, yes, necessarily so. It is the sheet anchor of the submission.

  LORD NICHOLLS OF BIRKENHEAD: And if that is the proper interpretation you are right, but if that is not the proper interpretation you are in difficulty.

  MR BELOFF: That would be so, my Lord, yes, but we say that the three have to be read together and the fact that 7(1) was thought necessary and 7(2) as adjunctive to 1 shows that one must seek to attribute meaning to all three. They have to be read not in conflict with each other but in harmony with each other. If one starts from the proposition that the general words are insufficient to remove a constitutional or fundamental right one finds general words in clause 1, one finds particular words dealing with points from which and means by which in 7(1) and 7(2) and those particular words bear with them a meaning that has been validated by centuries of history, not some accidental use of phraseology. Then as a coherent whole one says that what has been achieved or would be achieved if the Bill were enacted in this form would be a staged process, in other words it would retain the right of those peers who have made the return to the writ of summons for this particular Parliament but not beyond that because for a new Parliament they would need a new writ and were a writ to be issued—it would not be issued, but testing the matter in theory—one could point to 7(2) and say an issued writ has no effect.

  CHAIRMAN: Just in the same way that the writ was issued after the Bill was passed, if someone who had not had a writ before that had a writ it would have no effect even for the present Parliament.


  LORD NICHOLLS OF BIRKENHEAD: Why should clause 7(2) be construed to cut down 7(1) rather than being interpreted in a different way?

  MR BELOFF: For the reasons of construction that I have sought to advance. One starts on the basis that it has chosen to use particular terminology which is freighted with a particular meaning and if that is so then one is going to give that priority to more general words when one is concerned with the deprivation of rights. That is why I started from the basic principle, in order to explain how I approached the actual language of the Bill.

  LORD NICHOLLS OF BIRKENHEAD: You are saying it should be construed more strictly.

  MR BELOFF: Yes. One has to pose the question why was 7(2) phrased in that particular way if it were not to bear a meaning other than that which we say upon analysis of the pre-existing law it should bear given what we contend to be the distinction between the rights generated by issue of the writ and the rights that are generated by obedience to it. In other words, one cannot simply override, swamp, qualify 7(2) which uses precise words by reliance upon the general words of 1, that is the dimension of our approach to construction.

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