Examination of Witnesses (continued)|
THURSDAY 14 OCTOBER 1999
LORD CAMPBELL OF ALLOWAY: Can I make it perfectly
plain that I am not seeking to pre-empt the issue of construction
at all. What I am after is whether there is any agreement between
you and the learned Attorney-General as to the fundamental aspect
of peerage law which the Lord Chancellor appeared to be willing
MR BELOFF: My Lord, in a sense it is not for
me to make the response. Until I am advised or until some express
concession were made, I would proceed on the basis that I need
to establish what the pre-existing law was in order to be able
to assist your Lordships in consideration of the extent to which
it has been overwritten, but I do not hear my learned friend enthusiastically
leap to his feet and say much of what I say is unnecessary.
THE ATTORNEY-GENERAL: My Lord, I would not say
that much of what my learned friend says is unnecessary. What
I am saying is that his analysis is not one with which I concur
because the further development of his analysis, I take it, will
be to submit to your Lordship's Committee that the writ, when
answered to for the first occasion, is thereby spent and has no
continuing effect. From that proposition I dissent.
CHAIRMAN: It is an essential point in his case.
THE ATTORNEY-GENERAL: It is.
CHAIRMAN: And that you do not accept?
THE ATTORNEY-GENERAL: Yes.
MR BELOFF: I am grateful for that. I think it
means, my Lord, that I must try to reinforce the proposition I
have so far sought to make good by suggesting they are two quite
distinct stages, albeit one follows from the other.
CHAIRMAN: Some of these older cases, it is not
entirely easy to reconcile them. For example, in the case of the
Vaux Peerage Case you get at page 104 of the bundle the
writ is not part of the title of the individual, and then you
get a bit further on, at 111, that the writ acts as a conditional
grant. There it is part of the title.
MR BELOFF: I see what your Lordships says. Of
course, one does not know the extent to which the arguments of
the advocates were appropriately summarised. It may simply be
that what is being said is not per se part of the title.
It is being said it is that which starts and if you then obey,
that is the basis upon which the title ensues.
CHAIRMAN: We have your two alternative propositions.
Let us take the cases as concisely as we can to support your view.
Some of these peerage reports are very long. We do not want to
go through them all.
MR BELOFF: No, exactly so, my Lord. Let me then
rapidly take your Lordships to the Lord Chancellor and again I
will try to be selective. It is 116, just before 614. This, of
course, is a dispositive opinion: "In the first place, all
peerages must have their origin in a writ; whether a peer be created
by patent, or by summons from the Sovereign and acting upon that
summons by taking his seat in this House, the writ must be the
means of his introduction there." So we say that it is the
start of the story but not the end.
Over the page, at 117, the first paragraph on
that page, some eight lines down, "the function of the writ
is to bring someone to this House", and then the last paragraph
on that page before the 616, the inference is drawn from the fact
that the journals of the House show that the then Lord Vaux sat
in the House, that he must have taken his seat under a writ, and
your Lordships see again, interestingly, dealing with the question
as to whether or not the Crown could limit the effect of a writ
answered to and returned, some eight lines from the foot of the
page: "... being brought to this House by virtue of a writ,
whether the Crown could or could not by this means limit the effect,
which by the constitution of this country results from the act
of sitting in this House." So we emphasise that. It is the
act of sitting in the House that was dispositive in that particular
context and, as we say, is dispositive in this, and I think I
can spare your Lordships the opinion of Lord Wynford and Lord
Brougham, which add nothing substantial to the Lord Chancellor's
I think I must then go to Wensleydale,
if only because it is a case on which there is a disagreement,
a clear disagreement, between the Government and ourselves as
to the significance of this particular case. May I remind you
of the way in which it is deployed by the Government, which one
finds at paragraph 29, sub-paragraph 2.
CHAIRMAN: I think you showed us this this morning.
MR BELOFF: Yes, I think your Lordships have
that in mind, at page 32. My Lords, let me start, as it were,
at the end of the story. We say that in this instance what was
sought by Her Majesty was to create by patent a life peer and
it was held that that was not open to the Crown and, indeed, no
doubt almost a century later the Life Peerages Act provided a
constitutional mechanism for achieving that particular objective,
but what is re-affirmed was the doctrine that it was a writ and
a sitting that creates a hereditary barony. What was said is if,
however, you are seeking to derive your rights initially not from
a writ but from letters patent, and if the letters patent are
themselves invalid, then in those circumstances the writ is not
going to be effective. What the Government appear to be saying,
unless I have misconstrued them, is, even in the absence of the
background of an invalid patent, the writ and the response to
or return to the writ is not effective and it is that with which
we respectfully quarrel upon looking at the way in which the matter
is, in fact, dealt with in this case.
At page 74, 1121we are looking at tab
60 now in MacQueen, Volume IV, the extended report by Mr MacQueen
of Lincoln's Inn, at the foot of page 74: "That which gives
every noble Lord the right to sit here is not his Patent of Nobility,
but the Writ of Summons which he is entitled to, in consequence
of that Patent." And it is explained at 1121 what is meant
by that at the foot of the page. At page 75 now, my Lord, 1122:
"There is, indeed, the important right, the most important
right of demanding a writ of summons to sit here." That is
why we say it is, of course, a sine qua non that it is
not of itself sufficient because one requires a return to the
If we may then go forward to page 104, 1125,
this is Lord Campbell and your Lordships will see that he in vigorous
language attacks the Lord Chancellor, whom he describes as a "high
prerogative lawyer" and at 1125, having summarised his argument,
he says: "This is the language of him who sits here on the
woolsack, the guardian of our rights and privileges, while he
watches over the just authority of the Sovereign. But, says he,
`Would not the writ of summons itself, without any patent, entitle
the person named in it to be admitted, and to sit and vote as
a Baron?' Most undoubtedly it would;" but then he goes on
to say where, however, you do have a patent you must consider
whether or not the patent is valid in order to ascertain whether
or not those particular inherent rights are indeed available to
the person in question.
Then if we go on to page 319, your Lordships
will see that MacQueen has not been copied in full, so it is 1150,
and this is Lord Lyndhurst's speech, at the foot of the page:
"Now what is the object of a writ of summons? Merely"and
I stress that word"to procure the attendance of the
party: it calls upon him to appear in Parliament. If the King
is present in Parliament himself, and the party also appears,
the writ of summons becomes unnecessary; the object is accomplished
by his appearance."
The Attorney-General in his helpful intervention
said that a point, if not the only point, on which he quarrels
with our analysis is the submission that the writ of summons and
its effect become spent once there has been an attendance and
a return to the writ. We respectfully submit that the observations
of Lord Lyndhurst at that passage are supportive of the proposition
that we ourselves advance.
If I could then go further forward, the penultimate
reference, to page 391, this is the passage which was commented
on by Lord Birkenhead in the Viscountess Rhondda case,
to which I shall come next but one. At the foot of page 391, 1185
in the bundle: "But, after all, a Patent, even though presented
and enrolled, is not what of itself entitles the party to sit;"and
then these words" he sits because he presents a Writ
at the bar of your Lordships' House, commanding him to attend;
and whether he has a Patent, or not, is absolutely indifferentif
he has received a Writ he is bound to obey the Regal mandate."
So again what is it thatto paraphraseentitles someone
to sit? It is the presentation of the writ, it is the return to
the writ, which generates that particular right, and what the
writ itself gives, of course, is the right to attend in order
to enjoy that subsequent right.
Then your Lordships will see at page 394 that
there is a reference back in a sense inferentially to the Bristol
case and an acceptance, some eight lines into the page, 1168 of
the bundle: "If the Crown is so ill-advised as improperly
to refuse a writ, this House will not proceed to business till
the House is full." And your Lordships see that that is what
gives these issues, which may seem technical and arcane, their
My Lords, I pass on rapidly to the Earldom
of Norfolk case, where the reference can be short and succinct.
It is Volume I of the authorities at tab 37. It was the Earl of
Halsbury who was responsible for the opinion of the committee.
Your Lordships will not be surprised to hear that the matter was
dealt with in short fashion.
The Earldom of Norfolk concerned, some
seven centuries later, the efficacy in law of the surrender of
an earldom in 1302 and the subsequent grant within 11 years of
the earldom to another person whose descendants have then sat
in Parliament, and the question was whether or not that sitting
in response to the King's writ, which, of course, had been issued
to what I call for convenience the second earl, created an earldom,
and it was held that it did not, but in the course of dismissing
that particular application the Earl of Halsbury at page 12 of
the report, 187 of the bundle, said in relation to the submission
of Sir Robert Finlay, KC (as he then was), in the penultimate
paragraph on the page: "I think Sir Robert Finlay was correct
in saying that the King's writ, followed by a sitting in Parliament,
of itself created a peerage, but assuming it did, it would not
of itself create an earldom."
Your Lordships see that again the same point
is returned to in the speech or opinion of Lord Ashbourne on the
next page, in the second-last paragraph, some eight lines from
the end of that paragraph: "The fact that Thomas de Brotherton
was repeatedly summoned to and sat in Parliament under the grant
of 1312 cannot be considered as conferring any right to the earldom
apart from the charter. No such case is advanced in his documents
by the claimant, who was probably advised that a writ of summons
and subsequent sitting in Parliament may ennoble the blood and
confer right of peerage, but would hardly be accepted as sufficing,
of itself, to confer an earldom." And the other members of
the committee, to like effect, and lastly, Lord Davey, at page
192 of the bundle, 17 of the report, four lines from the foot
of the page: "Historically, a right of peerage is a right
to be specially summoned by name to Parliament, and when so summoned
to sit amongst the Majores Barones. According to law as we now
understand it, the heirs of a person so summoned and sitting are
entitled to be summoned in like manner or (in modern langauge)
have a right of peerage. But it has never been held that such
a writ"then again the key words"followed
by sitting will confer title to any particular rank in the peerage
Lastly, if I may, Viscountess Rhondda's Claim.
Once again, I trust for the last time, this is in Volume I at
CHAIRMAN: It is a very puzzling sentence. I
do not know whether you can have a peerage without having your
rank in the peerage. He seems to assume you can.
MR BELOFF: I am trying, my Lord, to confine
my submissions to the bits that are relevant. There are peculiarities
in this area.
CHAIRMAN: I do not mean to suggest it is only
the irrelevancies which are interesting in your submission.
MR BELOFF: They may be more interesting but
they will, of course, as your Lordship says, be less relevant.
Coming back, then, to the opinion of Viscount
Birkenhead, the Lord Chancellor, he talks about Wensleydale
and the great array of legal talent is then displayed, and at
358, page 213 of the bundle, he refers to what he describes as
the clear and helpful exposition of the law and he directs particular
attention to the observation made by Lord Cranworth, and that
the Lord Chancellor, in the passage which is quoted, though clearly,
as far as that is concerned and subsequently, he disagrees with
other aspects of Lord Cranworth's observations, regards as a correct
statement of the law.
Then at page 359 there is a passage on which
both sides before your Lordship's committee appear to rely: "What,
then, becomes of the suggestion that the right to sit is not a
right granted by letters patent? Literally it is true. The letters
patent require the supplement of a writ. But they give a right
to demand that writ, and impose a liability to receive it and
to act upon it. The letters are read in order to see whether there
has been granted by them to the person who presents the writ the
right to receive the writ and to sit under it." Then he goes
on to deal with the consequences of a patent, but again we respectfully
submit that that is entirely in harmony with our submission. The
legal effect of letters patent is to give a right to demand a
writ. Once one has a writ one has an obligation to receive it
and act upon it, but it is, in our respectful submission, the
acting upon it that generates the right to participate in the
affairs of the House thereafter.
LORD HOPE OF CRAIGHEAD: Before you leave that
page, I am looking at page 359 just after the break halfway down,
the quotation from Lord Cranworth. What do you say the effect
of clause 7(2) is on what Lord Cranworth is saying? Lord Cranworth
is saying that he sits because he presents a writ at the bar.
The present tense is important, so it is a continuing entitlement,
one would have thought, an entitlement to sit having presented
the writ, but what is the effect of clause 7(2) on that when it
uses the phrase "shall not have effect after the relevant
MR BELOFF: My Lord, we say that what is there
stated by Lord Cranworth is a description of the response to the
writ, return to the writ, which is involved in giving the writ
and taking one's place in the House. Thereafter, one's title is
perfected and the right to participate thereafter is generated
by the fact that one has obeyed that command. We are not, in other
words, reading, as your Lordship appears to test the proposition,
Lord Cranworth as saying that all rights then flow and without
interruption from the writ of summons. Therefore, we say, that
being so, I repeat that clause 7(2) bears only upon the rights
of those peers who have been issued with a writ but have not chosen
to exploit the opportunity that it grants to obey the command
and take up their place in the House but does not affect the rights
of those to whom writs have not only been issued but who have
also acted upon them.
LORD CAMPBELL OF ALLOWAY: Surely that is not
on the basis of a strict construction of "the words used"
in the section? Surely that must be an implication as a result
of what you, I think, called the principle of legality at an earlier
stage of the address? I am getting a bit lost. Is that about right?
MR BELOFF: No, my Lord, I do not even require
that as such. I think the principle of legality is to dissuade
your Lordships from concluding that clause 1 overwhelms any other
proposition and by itself compels one to construe other sections
which might limit or qualify in point of time or in effect the
general policy that is inherent in clause 1, but what I say is
if your Lordships accept that and then look at clause 7(2) on
its face, simply as a matter of language, the assault is on the
rights of those to whom writs of summons have been issued and
is not an assault on the rights of those to whom a writ of summons
has been issued but have chosen to act upon it, and if, to remove
constitutional, traditional rights, one needs clearer language,
that cause lacks clarity. One can immediately conceive of other
ways in which the matter could have been put wholly beyond doubt.
Indeed, one goes further and asks the question, why is the concept
of an issue of a writ of summons alone focused upon unless it
was intended to have some significance. I speak of "intended"
again resorting back to an objective interpretation of the language
LORD CAMPBELL OF ALLOWAY: And that is a matter
of clear construction of "the words used" and not a
matter of necessary implication?
MR BELOFF: Yes.
LORD CAMPBELL OF ALLOWAY: Thank you very much.
MR BELOFF: I am obliged, my Lord. May I then
return to the opinion in the Rhondda case. I think I had
got as far as page 364. I simply note that Viscount Birkenhead
there cites the form of the writ itself and describes it as being
"imperative in its terms" and that "it does not
purport to confer a right or privilege, but to demand the fulfilment
of a duty." But again if one looks at the language, it is
to attend upon a particular date at a particular time.
Then I take your Lordships finally to page 384.
CHAIRMAN: Does all this relate to your sixth
proposition? Is that what we are on?
MR BELOFF: Yes, it is effectively the sixth
CHAIRMAN: The fifth and sixth perhaps.
MR BELOFF: I am reminded by my learned junior
that I may not have sufficiently emphasised, though I thought
I had, the passages in the speech of the Lord Chancellor which
suggested that one needed clear words before one came to a conclusion
that the composition of the House had been affected.
If your Lordships then go to page 384, the last
passage, this is Viscount Haldane. At page 384, the first passageand
I hope I do it fairnesssays, in effect, that a male peer,
obviously of sufficient years and not disqualified, is entitled
to "claim a writ of summons as a collateral legal right,
annexed by the law to his dignity, and ex debito justitiae.
Of course, he requires a writ, but the point is that he is entitled
to it as of right, as an incident which the law of the constitution,
and not the grant of the Sovereign, attaches to his peerage."
Then your Lordships will see that what he is saying is that if
one is a peer without disqualification one is entitled to the
writ, and at the foot of the next page, 385, he says, six lines
from the end: "The right to sit is not a right granted by
letters patent. It is due to no grant of such a right by letters
patent, which only recognizes it by the words used. It is attached
by the law and the constitution to the status of a peer. A peer,
of course, requires a writ to enable him to take his place. That
is why a writ accompanies the letters patent. But to this writ
he is entitled as an incident attached by law to his status ....
" and then he refers to the exception of some disabilities
which are, of course, notorious. So at that juncture, of course,
he is not considering anything other than the entitlement to a
writ and he is simply saying that that flows from the status of
being a non-disqualified Viscount Haldane himself is not considering
the more limited issue of what generates the right to participate
in the affairs of the House. Is it sufficient, as it were, to
have the writ or does one actually have to take the step of making
the return to the writ and sitting, and we suggest that the language
of the earlier speeches to which I have referred confirms our
analysis that it is an integral part of the right to participate
that one should have obeyed the writ?
I do not take your Lordships to the Barony
of Grey of Codnor. I only point out that this is a relatively
recent exampleit is in bundle 3 at tab 46, referring, of
course, to an ancient peerageof accepting the proposition
that writ followed by sitting can create a peerage.
CHAIRMAN: The thing is there is nothing later
than the Rhondda claim which is going to be relevant to
this part of the case, is that right?
MR BELOFF: There is nothing directly relevant
because, of course, they were not addressing that particular point,
and I think it is fair to say that the particular point that falls
to be discussed before your Lordships' committee is not directly
addressed but we do point out in all the cases that certain assumptions
seem to be made that a distinction is drawn between the issue
of writ and return to writ, that the right of a peer to receive
a writ is regarded as distinct from the rights of a peer that
are attendant --
CHAIRMAN: The answer to my question is no, there
is nothing later?
MR BELOFF: No, there is nothing directly, my
Lord. If there were, my Lord, even I, I think, might have drawn
it to your Lordships' attention at an earlier stage of my submission.
CHAIRMAN: I thought in your desire for speed
and conciseness you might have overlooked it.
MR BELOFF: It is generous of your Lordship to
excuse me on those grounds. May I then take your Lordships to
paragraph 19. I just wish to show your Lordships Anson. I will
read paragraph 19, if I may, and then take you to the passage
because he is obviously a constitutional lawyer of the highest
authority. This is 19 of our written case, page 13.
We make first what might, I suppose, be critically
described as a jury point but nonetheless it derives from the
vocabulary of the writs which your Lordships have studied: "Thus
a peer is summoned by general writ for a particular day; if he
attend on that day, what effect can that order to attend then
retain? By special writ he is ordered to join a sitting parliament:
once he has arrived, what effect can that order have?" One
might actually note, of course, that as was suggested in Halsbury,
once a writ has been returned, as your Lordships' experience will
confirm, it no longer exists in the hands of the person entitled
to it and that might be a physical reflection of the fact that
its legal efficacy is spent.
"Anson takes the view that the writ and
the Roll are the evidence to establish the right to membership.
The title to sit is, however, perfected by taking the oath or
affirming. It is submitted that this analysis from high authority
confirms and is consistent with Lord Mayhew's analysis. Only those
who have not perfected their right to sit need evidence. By contrast,
those who have perfected their right in what is the High Court
of Parliament need no further evidence: the equivalent of a judgment
in their favour has been given by their acceptance in the House
and taking the oath. Evidence characteristically has no continuing
effect after judgment. This Bill significantly attacks only potential
evidence, not judgment." The analogy your Lordships will
see and I take your Lordships to the sheet anchor of the submission
in Sir William Anson's, The Law and Custom of the Constitution,
Volume IV, tab 63.
CHAIRMAN: Is this the best general law of the
constitution on this particular issue? If one wanted to look at
something afterwards, is this the best one to look at?
MR BELOFF: This is the best we have found, my
Lord, yes, having regard both to the way in which it is expressed
and, of course, the authority of the author.
If your Lordships then go to pages 63 to 65
of Anson, your Lordships will see, taking the matter rapidly,
this is chapter 3, "The meeting of Parliament". Sir
William deals with who is summoned, how they are summoned, what
the objects of the summons are, the form of summons, and then,
having set out the form of the summons, he comes to deal at page
63 with, "The opening of Parliament" and he deals with
the assembly of the House and with the procedures both in this
House and in the House of Commons, and then at page 64 (1121)
midway down the page: "There are two things to consider before
we come to the declaration by the King of the objects of summons
in the speech from the Throne. (a) The first is the evidence by
which the members of the two Houses can establish their rights
to membership. (b) The second is the perfecting of the title to
sit. (c) In the Lords those who have received writs of summons
present them at the table of the House, the roll of those entitled,
as hereditary peers of England, to receive writs, being delivered
by the Garter King at Arms." Your Lordships then sees the
equivalent, as my Lord Lord Hope will recollect, in relation to
Scotland, the Clerk of the Crown, and the return is made by the
Lord Clerk Register of Scotland. "Garter King at Arms delivers
at the table of the House a list of the Lords Temporal, and the
list is ordered to lie upon the table. A new peer presents his
patent to the Lord Chancellor at the Woolsack, and this, together
with his writ of summons, is read by the Clerk of the House."
He then goes on to deal with the procedures
of the Commons, and then secondly and distinctively, at (b) on
the next page: "(b) The second is the perfecting of the title
of a member to discharge the duties of his office, and for this
it is necessary in both Houses that an oath of allegiance should
be taken or a declaration made to the same effect."
So we respectfully submit that Sir William Anson
has recognised the two separate incidents that we have identified:
one, the fact that a writ of summons entitles one to come to the
House, and if one chooses to do so, to obey the obligations inherent
in the writ and to establish one's rights to membership, but in
order to enjoy the rights of membership one has to establish them,
which is done, as he describes it, in perfecting the title by
the return and the oath of allegiance. We submit that that is
the true position and that is why we say that the effect of the
writ of summons is spent. This is, as it were, the second stage
when one has made one's return and one's right to membership is
constituted by that.
So your Lordships will see, if I may take your
Lordships back to the argument in the printed caseI am
just reminding your Lordships since I know that your Lordships
have been good enough to read this documentin paragraph
16 at page 10 of the bound volume we describe the purpose of the
writ of summons, how that purpose is fulfilled and the way in
which its effect is spent after being handed in. The Peer does
not, as we point out, need to return it daily; he has done it
once, he then is a member and his rights flow from the membership.
At paragraph 17 we refer to the fact that Parliament
once constituted the rights, as it were, ensue from membership
of that particular assembly, and we make the same points cumulatively
in paragraph 18: "The points (1) that a writ of summons has
effect only to bring a person to a parliament, to `assemble' the
parliament, (2) that it has no effect thereafter, and (3) that,
after doing all that the writ commands (that is, once he is assembled
in parliament) a peer must remain by virtue of his membership
of the House until permitted to depart, are made clear by ....
" and then we set out a number of references which I am not
going to trouble your Lordships with. Your Lordships will see
that, in effect, the oldest reference is to the close rolls, as
your Lordships see, that the summons is all to do with coming
to the Parliament, as it were, to the assembly of the Parliament,
as distinct from what happens thereafter and, of course, the more
modern legislation again is to like effect.
If I may, there are just three references at
paragraph 18 that I would like to pick up, or maybe two. One is
to Coke's Institutes and the other is to the very recent case
which attracted some publicity on account of its origin, the case
of Attorney General v Jones.
Coke's Institutes are at bundle IV at tab 58,
and again, if I may, it is 1098 at page 4. Your Lordships see
a reference to "The Summons of Parliament" and how the
King assembles the Parliament by sending out writs of summons
at least 40 days before the Parliament begin. Then at page 6 (1101),
one sees the reference to "The Beginning of the Parliament"
and he refers to the stage of the return of the writ and he says
that that being done, the king must be present either in person
or by representation. Of course, that has subsisted to this day.
If your Lordships then go to page 10, at the
foot of the page (1105), one will see that Coke thought the role
of the writ of summons to Parliament was in the opening sentence:
"Seeing the summons of parliament (as hath been said) is
by the king's writs, which tend to the beginning of the parliament,
it shall be necessary to speak somewhat of those writs."
Then he speaks somewhat of those writs and describes the need
to return them at the next page, and then finally going fast forward
(to use the modernism) to page 43 (1116), this is an interesting
passage because it recognises that there are two discrete obligationsand
I will return very briefly to this in a momentthe obligation
to attend and the obligation to stay, and they are dealt with
disjunctively, as we would expect from our analysis: "Every
lord spirituall and temporall ... shall upon summons come to the
parliament, except he can reasonably and honestly excuse himself,
or else he shall be amerced ...."the penalty that
Then one paragraph further on: "If a lord
depart from parliament without licence, it is an offence done
out of the parliament, and is finable by the lords .... "
So one sees that what we say is the second stage obligation, the
right and obligation to stay, is dealt with separately in terms
of the penalty that is imposed for a failure to comply with it
from that which involved a breach of the primary, in terms of
chronology, obligation to attend pursuant to the writ.
My Lords, the good offices of my learned junior
have provided other and even more historic instances of this distinction
between the penalties that are imposed for non-attendance initially
and absence thereafter. (Same handed in)
CHAIRMAN: What is the last time somebody was
fined for non-attendance in the House?
MR BELOFF: I cannot tell your Lordship. A committee
did investigate the problem of non-attendance in 1956, but again
the issue is not so much the way in which these matters have been
dealt with, but the fact that they are recognised historically
as being separate which itself reflects, as we suggest, the separate
incidents of the receipt of a writ and obedience to it.
My Lords, just looking at that, your Lordships
see Edward III
CHAIRMAN: We will read this. Take it shortly
because historically it is of great interest but I am not sure
how relevant it is going to be.
MR BELOFF: Your Lordships will see that the
first paragraph deals with leaving without permission once the
Parliament is assembled. The third paragraph in the middle dealing
with the case of "the said Adam", says: "The said
Adam says on behalf of the lord king that whenever it pleases
him to hold a parliament for the benefit of his kingdom he has
it summoned where and when he wishes and also makes a prohibition
to those who are present at parliament that none of them leave
contrary to his prohibition without permission, etc." Again
at the foot of the page: "Aldborough. Sir, parliament
is an assembly of the peers of the realm ... and so when one of
the peers does not come or comes and leaves without permission"
it is an offence, and your Lordships will see "Philip and
Mary ", again Middlesex, some six lines down,
there is a prohibition again leaving or absenting themselves when
they had, in fact, been summoned.
So again, although, as your Lordship rightly
says, it is historic, we say that that simply shows that it is
entrenched and is notorious and must be taken to be in the awareness
of those who crafted in particular clause 7(2) in the way in which
they did. However, if your Lordship despairs of the relevance
of antiquity I can take your Lordship to a case decided only this
year by the Divisional Court, at page 45, the case of Attorney-General
v Jones, which is in bundle IV at tab 56. This, as your Lordships
may recollect, arose out of charges of corrupt practices, which
I hasten to say were ultimately found to be without merit, against
the Member of Parliament for Newark,  3 WLR 444, and, as
your Lordships see, there was a charge, there was a conviction,
the House of Commons had been informed that the seat was vacant,
and then I read from the headnote: "Within one month the
defendant's conviction was quashed by the Court of Appeal. No
writ for a by-election in the defendant's constituency had been
issued in the meantime, nor had her seat been filled by any other
person." The issue that the Divisional Court had to determine
was whether, in those circumstances, this defendant, now successful
on appeal, was entitled simply to resume her seat in Parliament
and it was held on a construction of the relevant legislation
that she was so entitled, and they had the benefit of Mr Sales
If your Lordships look, however, at page 450,
your Lordships will see that the Divisional Court wrestled obiter
with what might have happened if, as was not the case, there had
been an issue of a writ for by-election in the intervening period.
What is said at the foot of the page by Lord
Justice Kennedy, with which Mr Justice Mitchell agreed, is the
judgment of the court: "~The preferred solution gives rise
to no difficulty, even if a writ"that is, of course,
an election writ"is issued before an appeal is heard.
If there has been no return to the election writ, the successful
appellant can simply resume his or her seat and a warrant of supersedeas
can be issued to withdraw the writ. If there has been a return
to the writ, then when the appeal succeeds there will be no vacant
seat for the appellant to occupy, the appellant's former seat
having been properly filled by someone else." In our submission,
that opens up the distinction between the legal effect of, (1)
an issue of a writ, and (2) a return to a writ. What is said by
the Divisional Court is that a writ that has been merely issued
does not have any effect; it allows the seat pro tem to remain
vacant and accordingly to be resumed by the successful defendant.
On the other hand, had there been a return to the writ, then,
of course, the seat would have been filled and problems which
the Divisional Court were not called upon to resolve would have
existed. But, of course, although it is dealing with writs relevant
to the composition of the other House of Parliament, nonetheless
writs of summons and writs of election have this in common, that
they are both the consequence of a proclamation of the kind that
your Lordships have seen at the end of the bound volume; they
are both writs; they both have the incidents of writs, and, accordingly,
if it is return that is crucial to the one, we say by parity of
reasoning return should be crucial to the other.