The advice of the Attorney General
and Lord Mackay of Clashfern
3. Our first step was to seek the advice of the
Attorney General on the range of sanctions available to the House
in the event of a serious complaint against a Member being upheld,
and in particular on the powers of the House with regard to the
suspension of Members. We also sought the advice of Lord Mackay
of Clashfern, a member of this Committee and a Lord of Appeal.
The memoranda submitted by the Attorney General and Lord Mackay
are annexed to this Report at Appendices 1 and 2 respectively.
We are extremely grateful to them for their assistance.
4. The Attorney General's conclusions on temporary
suspension are summarised in paragraph 14 of her memorandum:
While it is possible to construct a respectable argument
that the power of the House to regulate its own procedure includes
a power to suspend a member for a period within a Parliament on
the grounds of misconduct, I consider, on balance, that the House
does not have such a power. In my opinion, the key factor against
this argument is that a suspension would interfere with the rights
of a peer conferred by the Crown to attend, sit and vote in Parliament
(albeit to a lesser degree than permanent exclusion). This is
a fundamental constitutional right and any interference with that
right cannot be characterised as the mere regulation of the House's
own procedures.
5. The Attorney General also draws attention
to a binding resolution agreed by both Houses, in 1705, to the
effect that "neither House of Parliament hath power, by any
Vote or Declaration, to create to themselves any new Privilege,
that is not warranted by the known Laws and Customs of Parliament".
She advises that a decision to suspend or expel a Member would
exceed the limits of the House's power of self-regulation, and
so constitute the creation of a "new privilege", contravening
the 1705 resolution.
6. Lord Mackay of Clashfern, in contrast, concludes
that the House does possess the power to suspend its Members.
He agrees with the Attorney General that Members are, by statute
and by their letters patent, entitled to receive a writ of summons
at the commencement of each new Parliament, and that the House
cannot by resolution require that the writ of summons be withheld.
However, he goes on to advise that implied within the writ of
summons are certain conditions, in particular a requirement that
Members respect the rules of the House; and the House must therefore
possess a corresponding power to enforce its rules where necessary.
He therefore concludes:
"The House's existing power to adopt the procedures
necessary to preserve 'order and decency' includes a power to
suspend, for a defined period within the lifetime of a Parliament,
a Member who has been found guilty of clear and flagrant misconduct.
I consider further that the exercise of such a power would not
affect the rights conferred upon Members by virtue of their letters
patent; rather it would affirm the conditions implied in the writ
of summons, that Members must conduct themselves in accordance
with the rules of the House." (Paragraph 38)
7. Lord Mackay also advances a secondary argument,
based on historical comparison between the two Houses. He concludes
that the House of Lords, like the Commons "had in 1705 an
inherent power, deriving from its status as a constituent part
of the High Court of Parliament, to discipline its Members".
His advice on this secondary point therefore leads to the same
conclusion, that "any decision that the House may now take
as to the means by which it imposes such discipline, for example
by suspension, falls within the undoubted privilege of the House
to regulate its own procedures." (Paragraph 54)
Conclusions of the Committee
8. We have carefully considered the advice of
the Attorney General and Lord Mackay of Clashfern. We are unanimously
in agreement with the advice of Lord Mackay, and accordingly invite
the House to agree the following conclusions:
· The House possesses, and has possessed
since before the 1705 resolution, an inherent power to discipline
its Members; the means by which it chooses to exercise this power
falls within the regulation by the House of its own procedures.
· The duty imposed upon Members, by virtue
of the writs of summons, to attend Parliament, is subject to various
implied conditions, which are reflected in the many rules governing
the conduct of Members which have been adopted over time by the
House.
· The House has no power, by resolution,
to require that the writ of summons be withheld from a Member
otherwise entitled to receive it; as a result, it is not within
the power of the House by resolution to expel a Member permanently.
· The House does possess the power to
suspend its Members for a defined period not longer than the remainder
of the current Parliament.
9. The procedure for imposing a suspension should
in due course be set out in a new Standing Order; the wording
of the Standing Order would be a matter for the Procedure Committee.
However, we emphasise that the function of Standing Orders is
not to confer new powers, but to describe the rules and procedures
governing the use of existing powers; the lack of a Standing Order
does not prevent the House from exercising its existing power
to suspend its Members in the interim.
10. It will also be for the Procedure Committee
to consider and report in detail on the practical implementation
of any suspension. In outline, we expect that following any suspension
the Member concerned would be required to withdraw from the precincts
immediately, and that he or she would then be barred from the
precincts for the duration of the suspension. This would be consistent
with the procedures adopted by the House of Commons.
1 HL Deb., 26 January 2009, col. 10. Back
