Examination of Witnesses (continued)|
MONDAY 18 OCTOBER 1999
CHAIRMAN: I think your argument really begins
in the next paragraph.
MR LOFTHOUSE: My Lord, yes. "Since clause
1 concentrates on a qualification for a writ of summons and not
on sitting and voting (the usual words for expulsion), it must
be designed to attack future use of that qualification: (1) by
preventing it qualifying for a future writ of summons, and (2)
by preventing a writ issued upon such a qualification from being
effective for the future." So it looks to something that
we have identified as being no more than a qualification for a
writ and that tells us that it is dealing with qualification.
We know that qualification takes place only at a point of entry
(if I may so baldly term it), and we know, therefore, that it
is meant to bite only on future qualification, which is in accordance
with what one would expect in a free country's constitution, that
you would not expel sitting members of a legislature in a sitting
of parliament. One would not expect it and, therefore, one finds
that it is not done except by clear words, which are not here,
and the statute points to what I suggest.
CHAIRMAN: Whether it is cricket to do it is
not for us, but whether the words are clear enough is the issue
and I do not think the Attorney will disagree with the view that
in order to achieve this object the words must be sufficiently
clear to achieve the object and that is the question.
MR LOFTHOUSE: My Lord, I wonder if the Government
will disagree with me on that.
CHAIRMAN: They would say the words are clear
enough, I imagine.
MR LOFTHOUSE: My Lord, in a sense they say the
words are either clear enough or the Government will tell us in
some ministerial statement what they mean in due course. There
is a breadth of approach on the Crown side and it does not wholly
concentrate upon clarity of words.
CHAIRMAN: I know you make a comparison, which
we have read, with the university matriculation requirement. This
analogy may not be complete, which is why you say they are wrong.
I do not think we need spend a lot of time on it. Go on to clause
MR LOFTHOUSE: Clause 7(2), as I say, compels
this interpretation and does not estop the effect of the writ
of summons. If it estops the effect of the writ of summons, which
it does not, does it then eject it, and I say no, a writ of summons
is designed to get a person to parliament. That is all it is for,
and I look, in doing so, at the documents. Most of these documents
are already referred to in the case but it is essential, as I
say, to understand how we say it, that these documents are looked
at because nothing has changed in parliament, nothing relevant
to them has changed since they occurred or were produced or whatever
that would affect the argument.
I start off with a very easy one, which is the
Proclamation by Her Majesty in 1997, and you see in that, which
is the back page of the bound volume, that Her Majesty says that
the writs that are to be issued are to be returnable in due course
of law. Why does Her Majesty use that language? A writ can only
be returned when it needs no further effect. It then goes into
the office and then the Clerk in the office can say, "Those
are the writs that have been obeyed; they have done their job.
Return them in due course. There has been notI do not know,
I have studied themany answer ever given on the Crown's
side as to why Her Majesty uses that language, as to what it means
and why we are wrong when we say that is the end of the writ.
In a sense my Lord Nicholls of Birkenhead asked me, what is my
best case. This parliament owes its existence to that Proclamation.
That was the exercise of expression of the Royal will.
CHAIRMAN: I think Lord Nicholls was really asking
you if you have any statements, judicially or by the Committee
of Privileges or what any textbook writer of constitutional law
says on this.
MR LOFTHOUSE: My Lord, yes, and Anson is, of
course, my very helpful one.
LORD NICHOLLS OF BIRKENHEAD: Mr Lofthouse, I
do not at the moment for myself see that the words in the Proclamation
help at all. It is an indication that the writ of summons is to
be returned, in the phrase you quoted, but I do not at the moment
see how that is any help in deciding whether the writ confers
a right more than just to attend on the first occasion. It is
not against you; it does not help you.
MR LOFTHOUSE: My Lord, I suggest it must do
because a writ goes out to perform a function.
LORD NICHOLLS OF BIRKENHEAD: That is the question,
what is its function. The Proclamation does not help.
MR LOFTHOUSE: My Lord, it does, because when
it has completed its function, and only then, may it be returned.
If it had any further function the noble lord who had it would
have to keep it, for two reasons: one is because the Clerk of
the Crown in Chancery would not take it back because he had not
completed his duty, and the second is because he would need it
to show to the Lord Chancellor every time he chose to come to
the Chamber. The reason he is able to get rid of it, to discharge
his duty in respect of that writ, is because the writ has had
its effect. The words are crucial and why, my Lord, the words
"returnable in due course of law"? We know they are
returned at the beginning of the parliament or when one first
takes one's seat. Why, if that is not the moment at which the
writ has spent its effect, should one choose any other? What other
moment can one choose, and why should Her Majesty choose that
as the moment of return? It is crucial that that is the moment
of return, and that is the highest guidance you can have as to
the moment at which the writ has ceased to have any meaning.
LORD HOPE OF CRAIGHEAD: Does the wording of
the Proclamation not also contain the phrase "for causing
the lords ... to give their attendance in the parliament"?
MR LOFTHOUSE: My Lord, indeed.
LORD HOPE OF CRAIGHEAD: So, of course, the return
is part of the process, but what it goes on to talk about is attendance
in parliament as part of the purpose for which the writ is issued.
MR LOFTHOUSE: My Lord, that is precisely what
it is for, to get the lords to give their attendance in parliament.
That is all they do with it, on a named day.
LORD HOPE OF CRAIGHEAD: I am grateful.
CHAIRMAN: I do not think anything in the writ
is in issue. It seems to me the very fact that you have to hand
the writ in in order to return it to my mind does not really affect
it. It is rather like saying, if you get an invitation to the
Guildhall you have to hand in the invitation. All your right to
stay on at the reception has gone because you have handed your
ticket in. It is nonsense.
MR LOFTHOUSE: My Lord, if I may say so, we are
dealing with duties and rights considerably more grave than those
that arise at a party. I am not being impertinent but I am saying
that there it is clear. Her Majesty says that writ is to be returned.
Why does She say it is to be returned, and why is it returned
then if that is not the crucial moment? My Lord, I venture to
suggest that without somebody coming up with a cogent answer as
to why that is the moment of return, it is impossible to find
against this side of the case, and that is the root title of parliament.
Those words are not used in vain or superfluously. These sorts
of proclamations and so forth with their time-honoured phraseology
have a specific function and meaning. They may be archaic, they
may sometimes appear quaint, but to those who read them in their
context they give the answer.
My Lord, there are other proclamations which
you will find produced as appendices to the Antrim case.
I shall not go to that. It is in the full report of the House
or the Committee. I make the point at the top of page 7 that the
writs are issued out of Chancery and returned to it when they
have achieved their end purpose.
I look then at writs of summons themselves.
The command is to come, and I pause there and define it. The wording
used is that you will be personally presentthe old words
were personalites intersitis in the Latin, the phrase one
comes across. That that is to come I shall establish and it is
scarcely in doubt that one has to come. The question is, is the
coming initially enough, and it is either on a certain day, which
is in the general writ, or a special day, just to come, and the
purpose for which the attendance is required is stated but the
writ is indeed returned before advice can be given.
My Lords, again I stress that as to the effect
of the writ. It is inconceivable that the wording "to give
advice and counsel" and so on and so forth means that one
has not fulfilled the duty set out by the writ until one has given
advice and counsel, if Her Majesty's injunction and the law of
parliament ordain that you return your writ before you can have
said a word of counsel or advice to Her Majesty.
Then the point was raised, I think, last time,
what about the lack of a named day in the special writs? Does
that not indicate what I call life after return, and it does not,
first of all, because the day is not named since parliament is
sitting, and again one must go back to the period. One receives
a Royal command; one is under a duty to obey. Unless the date
is put further off, one obeys forthwith, and just as with the
peer who comes at the beginning of a parliament, one returns the
writ. My Lords, as my Lord Slynn of Hadley rightly said, there
is a danger in this form of analogy but the existence of a named
day when the Crown sends out the general writs is some small indication
in favour of my construction of that.
My Lords, I come to the point that the writ
says that the recipient is to be there "to treat and give
your counsel". This cannot just be on the day he comes. Does
not the writ thus command him to stay long enough to do so? There
are three approaches to that question. The first is that the peer
has come for the purpose of being ready to give advice. As I have
said before, it is returned before any counsel can be given and,
my Lords, there are various services historically the Crown can
demand of certain types of subject. In the days when these writs
were established, the two principal forms were counsel and military
service for various periods. If one looks briefly at the fifth
bundle of authorities, I have a passage from Stubbs on page 16.
CHAIRMAN: This is the small bundle, is it?
MR LOFTHOUSE: My Lord, yes. It is the one with
the plain white cover. Your Lordship has it. It begins at page
16 and the passage to which I invite your Lordships' attention
is on page 18 of the bundle, five lines down: "The military
levy of the feudal tenants-in-chief presents a close analogy with
the assembly of the commune concilium as described in Magna
Carta. The great barons were summoned by special writ to appear
on a certain day, prepared with their due number of knights, with
horses and arms, to go on the king's service for a certain time,
according to the king's orders."
"Certain day" is of the essence. Here
those of your Lordships who are receiving your writ of summons
are told, "Come on 7 May 1997 and I want you for your service
that you owe me of counsel, and I am calling you for that. When
you get there I shall tell you what I want of you. I shall tell
you when you can go, but your duty is simply to come."
Then, thirdly, the wording also serves to distinguish
the types of service within parliament, lord or not lord, and
I make the point, one can only tell by looking at the sort of
writ a man gets what his status is or is to be in the parliament.
Those learned judges who sit on the Woolsack at the State Opening
of Parliament are summoned by writ of attendance and an example
of that is at the back of the little bundle I have handed in,
at the back of my notes that I handed in today.
CHAIRMAN: Is there any relevance for present
purposes between the use of the words "nobles" and "peers"?
Is there a difference for this purpose?
MR LOFTHOUSE: Between nobles and peers, not.
There is not nowadays. I can explain to your Lordships the difference
between nobles and peers.
CHAIRMAN: Only very briefly, but every time
I have heard this phrase used I have wondered why in the present
day we talk about nobles and peers. What is the difference?
MR LOFTHOUSE: And you get "great men"
in the writ to them. There would have been in the Middle Ages
people who were barons but some of them were greater barons and
some of them were lesser barons. There came little by little to
be a distinction, in that the greater barons are the ones we have
come to call peers, who have tended to be summoned to parliament,
and the lesser barons declined, to the extent that now their descendants
would be what we now call lords of the manor; their title gets
watered down. I think that is the distinction I would make. They
were then at one time part of that butand this is the important
thingthose lesser barons, the nobles, became members ultimately
of the Commons, entitled to be in the Commons, so they are in
the parliament I suppose in that sense.
CHAIRMAN: Thank you. So there is no difference
for present purposes?
MR LOFTHOUSE: My Lord, there is no great difference.
I think that is the explanation. As I say, my Lords, I do stress
that the essential is the coming and it is the indication of a
service and that there is no trouble for the argument we present,
that the purpose is set out at length. One needs to know what
one is being called for, particularly so in past centuries when
this language grew up. A man might be a bishop, for example, and
might be at some distance away. Even as near a bishop as Winchester
would be some distance away. Why was he to come? And a temporal
lord, say in the far north, summoned: is he to come for counsel;
is he to come with a military host? He has to know. All he knows
is he is being told to come on that day. That is the type of service
and, as it were, sometimes used in another context, "whereupon
Her Majesty's further pleasure will be declared," and that
is what happens when you come. Her Majesty's further pleasure
is declared; She announces the cause of the summons, what we now
call the Speech from the Throne, and you are then given your directions
as to where to go and what to do.
My Lords, I refer to the Close Rolls.
CHAIRMAN: Does that really help us in the present
MR LOFTHOUSE: My Lord, again they do. The Clerks
on some occasions have set out what they have written and to whom
they have sent it and they mark in the margin sometimes "de
veniendo ad parliamentum""of coming to parliament".
They knew what they meant and they meant "de summonitione
ad parliamentum""of summoning to parliament",
summoning to come.
CHAIRMAN: It is the distinction between coming
and staying. You are back to the same point there.
MR LOFTHOUSE: My Lord, exactly the same point.
Lord Coke, or Sir Edward Coke, in his Institutesand this
is Volume IV, page 1116, headed "Every member of the parliament
ought to come"in his first paragraph sets out the
effect of the statute of 5 Richard II, "shall come upon summons"and
I will go to the text in a momentand then he recites the
statute of Henry VIII that "the Commons shall not depart".
CHAIRMAN: I think Mr Beloff did refer us to
MR LOFTHOUSE: My Lord, since the book is open,
if you will forgive me just saying, he then puts the separate
text with a separate sidenote as to departing from parliament.
My Lord, "departing from parliament" means "not
staying", so departing from parliament would include not
being there on any particular occasion and that is a distinct
offence from disobedience to the summons.
My lords, the significance again of that is
that Medieval monarchs were not particularly merciful, it might
be said, in view of people's defaults in obeying their commands.
If the writ of summons involved an obligation to stay, if it involved
the duty and the right, the duty of staying throughout that parliament,
they would have sued, as it wereand I will come to how
they did itupon the failure of the writ, the disobedience
to the writ, but instead one finds in Coke two separate offences,
not coming, and going. I do not know if I need take your Lordships
to the statute 5 Richard II. It is there. I would ask your Lordships
to look at it when considering your decision.
The Lords' Journals in the fifth bundle, page
1, is significant for its resolution and it is halfway down the
left-hand column. This is 25 February 1626 (as we now call it)
but it was the days when New Year's Day was 25 March.
CHAIRMAN: What is the passage you are referring
MR LOFTHOUSE: My Lord, page 1 of that bundle.
It is halfway down the left-hand column. It begins "After
full Deliberation thereof had, and the House resumed, the said
Four Orders were read again, and put to the Question in Manner
following: videlicet 1. That an Order shall be drawn and
set down, whereby all Lords may know the Danger they incur by
being absent at the First Meeting of Parliament, except they have
Leave from the King."
CHAIRMAN: What date is this?
MR LOFTHOUSE: My Lord, this is 25 February 1625.
We now call it 1626. "2. When the House is set,"I
rely upon those words; that is what happens at the beginning of
parliament when the lords take their seats when they arrive"as
he is to pay that comes after Prayers, so he that comes not at
all, and makes not a just Excuse, is to pay Five shillings for
every Day's Absence. This to be in Force presently." My Lord,
again a distinction between coming not at all at the first parliament
and coming not at all during the parliamenttwo separate
thingsso that, if you ask, what is the effect of the writ,
I say look at those cases. If a peer who had come at the summons
and then not turned up again were prosecuted for failing to obey
the writ, his defence would be, "My Lord, I came," and
they have to change the charge to one of departing without licence.
That, my Lord, tells you succinctly what the effect of the writ
CHAIRMAN: Then there is the case Mr Beloff very
helpfully referred us to and we can perhaps look at the text ourselves.
Is there anything special in the Abergavenny case?
MR LOFTHOUSE: My Lord, there is in the Abergavenny
case. I am grateful, thank you. It is tab 59 in Volume IV, and
about four lines down: "And it was resolved by the Lord Chancellor,
the two Chief Justices, Chief Baron, and divers other justices
that the direction and delivery of the writ did not make him a
baron or noble until he did come to the Parliament, and there
sit, according to the commandment of the writ."
Pausing there, it is the commandment of the
writ and the obedience to that, as they say, that confers what
here would be the barony upon you"and there sit"
means "once". That is according to the commandment of
the writ. And then it says: " ... the words of the writ were
well penned." My Lords, I rely upon that. He sets out the
very principle for which we contend and to prove it says "the
words of the writ were well penned". My Lords, in the course
of argument the wording of the writ has been proposed to us as
a possible difficulty, yet Coke states the principle for which
we contend and says that the writ is well penned because of that,
to establish that. It is clear that my Lord Coke knew that the
wordsyou see the words. Can I take you to the Latin, towards
the end. The wording your Lordships will see, if you have a copy
of the current writ by you; it is quite easy to run through. It
is pretty nearly the same text. If you look at the last line of
the Latin you see the words just above the last line, "ac
cum Praelatis, Magnatibus ac Proceribus supradictis,""with
Prelates, Great Men and Peers aforesaid"super dictis
negotiis tractaturis, vestrumque consilium impensare""to
give counsel and deal upon the said matters,"the self-same
wording as one finds today.
Lord Coke did not consider that those words
would have restricted our argument. Those words do not have a
carrying-on effect beyond the taking of the seat because he says
the effect of the writ is had when you take your seat. My Lords,
it may be if Sir Edward Coke were sitting here now, he would tell
us, as I have told your Lordships, or suggested, that the wording
about giving counsel and so forth is an indication of the service;
it is not a command.
My Lords, a little further down, four lines
below the Latin: " ... the writ hath not its operation and
effect, until he sit in Parliament"no suggestion by
Coke that any other effect could not be, as I say, a candidate"there
to consult with the King and the other nobles of the realm,"and
that is what he is there for; he explains it precisely"which
command of the King"most important"by
his supersedeas may be countermanded"and we
see that in one of the cases, and supersedeas can be given
to that command but only before the seat is taken. My Lords, you
see it. Lord Coke recognises the writ can be subject to supersedeas,
set aside, and then the writ has its effect when you sit. At that
stage it cannot be set aside.
CHAIRMAN: I think you have summarised that very
well at pages 11 and 12.
MR LOFTHOUSE: My Lord, yes. Might I just trouble
your Lordships' patience a little more, two lines down: "
... and when one is called by writ to Parliament, the order is,
that he be apparelled in his Parliament robes ... and then he
is adjudged in law inter pares regni." That is the
effect and the effect is the same whether we are saying what is
the effect. The effect is, what is obedience, what obedience do
you owe in respect of the writ? If you obey and get something
like a barony by writ by obeying, by sitting in accordance with
the commandment of the writ, as Lord Coke puts it, then that tells
what the effect is. The effect is to get that obedience and the
obedience is once sitting. Once you are in you are a peer of the
realm if you were not already.
My Lords, I leave that point perhaps there,
and it is that term of art, as I put it, that the Government have
chosen to use in their bill.
LORD HOPE OF CRAIGHEAD: The problem in Lord
Abergavenny's Case was caused by the fact that he died before
the parliament sat and so that was the issue in that case, was
it not, whether the mere delivery of the writ before he sat was
enough to create him a baron?
MR LOFTHOUSE: Surely. That was the essential.
That was the principal problem faced by the person claiming the
peerage or proving the peerage, but Lord Coke is saying that you
need something in order to have the peerage, which would have
meant that the person summoned had sat in accordance with the
commandment of the writ.
CHAIRMAN: But the critical point of the Abergavenny
case, from your point of view, is the statement that the mere
issue of the writ does not create the barony and the right to
sit, it is actually the sitting. We are back to the return point.
MR LOFTHOUSE: We are back to it, my Lord, and
it is again authority unanswered by the Government, who in all
conscience have had my opinion for some months. One might have
thought it might find some I am in the curious position
of counsel, of the other side having my opinion. They have had
that for some time.
CHAIRMAN: We shall see what Mr Attorney says
in due course.
MR LOFTHOUSE: As I say, your Lordships have
no benefit of the advance notice in their case of their view of
the Abergavenny case. I suggest the reason is there is
no answer to it. My Lords, the Barony of Strange.
CHAIRMAN: Then we remember well the passage
MR LOFTHOUSE: My Lord, yes, "it hath not
had its full effect until he sit in parliament." Those words,
if I am not wrong, were written in a case by a gentleman called
William Murray, who, again if I am not entirely mistaken, later
became the Lord Chief Justice, Lord Mansfield. He did a couple
of peerage cases in the mid eighteenth century and one of them
was Strange. Those words were accepted by the Committee
and the wording is
CHAIRMAN: I think the reference to Cruise is
not 1194; it is Palmer.
MR LOFTHOUSE: My Lord, it is tab 61.
CHAIRMAN: Mr Beloff has taken us very carefully
through this passage in Cruise.
MR LOFTHOUSE: My Lord, of course. Might I just,
as I say, remind you of the wording used in the case of the Duke
of Atholl in Strange, at page 1194: "When the person
summoned sat the writ of summons had its full effect." My
Lord, I am asked for authority. I have an embarrassment of it.
LORD NICHOLLS OF BIRKENHEAD: It seems to me
it is right to have a line of context. What this passage might
be saying is that once the person summoned sits, then the writ,
but only then, really takes effect and it really does take effect,
but I am not sure it spells out from that phrase that it has no
continuing effect, does it?
MR LOFTHOUSE: My Lord, that it has had effect.
LORD NICHOLLS OF BIRKENHEAD: The whole sentence
is in the past tense, "When the member sat, then the writ
MR LOFTHOUSE: No, my Lord, the wording is not
LORD NICHOLLS OF BIRKENHEAD: No, grammatically,
of course, it is in the past tense, "the writ of summons
had"meaning when the member sat"its full
effect". Is it right to read that phrase as directed at the
point with which we are concerned?
MR LOFTHOUSE: My Lord, it most certainly is.
The effect is to place you inter pares regni, as Coke puts
it. That effect is conclusive; it has done its task.
LORD NICHOLLS OF BIRKENHEAD: Yes, it has. You
are entitled then to sit in parliament.
MR LOFTHOUSE: No, my Lord, given one admission
to parliament, made one a peer, made one a lord of parliament.
It has had its effect.
CHAIRMAN: It completed the process of entitlement
to be in parliament.
MR LOFTHOUSE: My Lord, precisely.
CHAIRMAN: That sentence read in that way does
not say, "Once you have sat, the effect of the writ is finished."
It is merely the final proof of your right to sit.
MR LOFTHOUSE: My Lord, until the effect, a writ
could be set aside by supersedeasthat was referred
to recently in the Jones caseuntil effect is had,
because, understandably, it is only something that can have any
further effect that one needs to set aside. This is the point
raised in Abergavenny, that the writ alone without a sitting
is not good enough because there could have been a supersedeas
before the sitting. If the effect of a writ can survive beyond
a sitting, why could not the Sovereign issue a supersedeas
for the rest of the effect of the writ, and Lord Coke excluded
it? Could the Queen, for example, issue a supersedeas to
one of your Lordships in respect of his writ? Would he then have
to leave the House? That would be the effect of your Lordships'
decision against us, that the executive would have the right,
because the Queen acts upon the advice of the Government, would
have the prerogative right to issue a supersedeas against
a sitting peer.
My Lords, Vaux, which is at tab 32, repays
study. It is one of the central cases on peerage law. I do not
propose to go any further through the passages. They are set out
in our case at paragraph 9. May I trouble your Lordship just with
the ones that I have set out.
CHAIRMAN: This is a particularly important decision.
We have been through it already.
MR LOFTHOUSE: My Lord, it is, and it is Sir
Harris Nicolas. Again I labour the point but he was a man who
knew what he was talking about, and rather a character at that.
He was probably the greatest peerage lawyer of his time at a time
when there was a lot of it about, I suspect quite a lot of it
got going by him. He says: "The Chancellor takes the Writ
from him as his authority"and this is uncontroverted
from, if I may so express myself. Admitting a new peer into this
House is authority.