Memorandum by the Clerk of the Parliaments
1. Clause 94 of the Constitutional Reform
Bill is as follows:
"94 Parliamentary disqualification
(1) In Part 1 of Schedule 1 to the House
of Commons Disqualification Act 1975 (c. 24) (judicial offices
disqualifying for membership) at the beginning insert—
"Judge of the Supreme Court.
Member of the supplementary panel under section
30 of the Constitutional Reform Act 2004."
(2) A member of the House of Lords is, while
he holds any of the judicial offices specified in Part 1 of Schedule
1 to the House of Commons Disqualification Act 1975, disqualified
for sitting or voting in—
(b) a committee of that House, or
(c) a joint committee of both Houses.
(3) A member of the House of Lords who is
disqualified under subsection (2) is not for that reason disqualified
for receiving a writ of summons to attend that House, but any
such writ is subject to that subsection."
2. The purpose of this memorandum is to
direct the Committee's attention to Clause 94(3).
3. A writ of summons is issued in the name
of the Queen to Members of the House of Lords at the start of
each new Parliament. The wording includes the following:
"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 . . . 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 . . . to treat and give your counsel upon the
affairs aforesaid And this as you regard Us and Our honour and
the safety and defence of the said Kingdom and Church and dispatch
of the said affairs in nowise do you omit"
4. The main existing category of disqualification
for membership is bankruptcy, and under the Insolvency Act 1986
a writ of summons is not issued to a bankrupt peer. By contrast,
Clause 94(3) provides that a writ of summons will still be issued
to a peer who is for the time being disqualified by reason of
holding a judicial office.
5. The Committee may wish to consider whether
this novel approach is desirable. Two arguments against it are:
(a) It might be thought discourteous to the
Queen to require her to issue a command, couched in peremptory
terms, which is nugatory. It is also potentially confusing to
recipients.
(b) If the purpose of disqualification is
to separate the judiciary from the legislature then this provision
appears to weaken that separation. If, on the other hand, it is
not thought necessary to make the separation complete, then it
is arguable that disqualification is unnecessary and that it would
be sufficient to expect peers who are judges to take leave of
absence.
6. A possible practical consequence of the
proposed provision is that those concerned might expect to have
access to certain facilities of the House. This memorandum is
not concerned with that issue, but I should point out that the
right to sit on the Steps of the Throne is already extended to
Privy Counsellors and thus all members of the new Supreme Court
would retain that right.
7. I have been advised by the Department
for Constitutional Affairs that the provision in Clause 94(3)
was included in order "to distinguish between [judges] and
others who are disqualified from sitting—namely bankrupts.
We would not want Justices of the Supreme Court and other Judiciary
to be in any way equated through their disqualification with bankrupts."
The Committee may wish to consider whether that argument is strong
enough to justify the novel arrangement envisaged by Clause 94(3).
27 April 2004
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