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Lord Mackie of Benshie: Before the noble and learned Lord sits down, will he not admit that in establishing what criteria apply to Scottish Peers it is necessary to consider representation--at least in an unofficial way--to ensure that the various interests are

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represented in this Chamber, whether those are national interests or, as I mentioned before, the interests of industry?

Lord Falconer of Thoroton: As regards the first stage of reform and the interim Chamber, I think one can be moderately satisfied that the voice of Scotland will be represented adequately by most able Scots. As regards the second stage, the question of regional balance is a matter that no doubt the Royal Commission will address.

The Earl of Mar and Kellie: This is only the second time that any amendment I have proposed has been debated for more than half an hour. Therefore, there must be some merit in it somewhere. I thank all those Members of the Committee who have spoken in favour of it or spoken about it. It was an interesting experience to be a parliamentary candidate in the first Scottish parliamentary elections since 6th May 1703. I came to realise that this was the first time since 1426 that anyone with my name had submitted himself to any electorate before enjoying a seat in the Parliament of either Scotland or the United Kingdom.

I was criticised for being a constituency candidate, a regional candidate and a candidate for the Clackmannanshire council. However, this was one of the strange but dangerous outbreaks of democratic advance. There were moments, certainly after the result, when I reflected on the fact that there might be some merit in the hereditary system--it is a lot easier.

I should like to give one final reminiscence about the Scottish election. In the week following the elections in the Ochil constituency all four candidates headed off to a Parliament. I was to return here for the remaining months. The other three all headed off to the Scottish Parliament. This was an election where everybody got to Parliament.

This is a probing amendment, and I will not press it; but I cannot go on too often about the fact that Scotland must have a strong place in the scrutiny of United Kingdom reserve powers legislation. The response of the noble and learned Lord, Lord Falconer, was to try to pretend that the United Kingdom is a unitary state. It is not; it is a union state, made up of sovereign partners. One of the essential differences about the United Kingdom reserve powers legislation is that some of it has to be written into Scots law, to which most Members of the House of Lords are not subject, except when they visit Scotland. That is why it is particularly important to have an identified group from Scotland.

Scots law defines what domicile means. There is another way of dealing with the matter: "Someone liable to pay the Scottish variable rate", if the Scots Parliament decides to use it, could be yet another definition of what is a Scots person for these purposes.

Having come here from Scotland for the last five years, and very much appreciating the opportunity to do so, I should like to say that it is difficult to attend and do a job. Considerable commitment is required of representatives from Scotland in the House of Lords.

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Alarm bells began to ring last summer, with the arrival of the last tranche of working Peers; there were 26, and they all came from England. Indeed, all but seven came from the Home Counties. There was not one from Scotland, Wales or Northern Ireland, and that struck me as being unreliable in a union state.

I brought forward the idea of a quota because of the indefinite nature of stage one. I know it is not the intention that it should be indefinite, but we know what happened to the Preamble to the 1911 Act. It took 88 years. Perhaps "indefinite" is coming to an end, but it ran for rather a long time.

I must tell the noble Lord, Lord Acton, that some of the Peers of Scotland would certainly not fail the domicile test. Some of them are infirm and are not available to come, so statistics provided by my noble kinswoman, Lady Saltoun of Abernethy, are not reliable as regards the point he made.

It appears that both the Government and my Front Bench are happy to allow statutory representation from Scotland to lapse. I will read the report of the debate to see whether that really was the way everybody felt. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Sitting was suspended from 7.44 until 8.44 p.m.]

The Earl of Northesk moved Amendment No. 54:


After Clause 1, insert the following new clause--

PEERAGES CREATED BY WRIT

(" . A person who receives a writ of summons at a time when he is not a Peer of the Realm shall not be entitled to attend, sit or vote in the House of Lords by virtue of that writ.")

The noble Earl said: In our debate last Tuesday on Clause 1 stand part, the noble Baroness the Lord Privy Seal summarised the Government's view of the Bill. She said:


    "As is explained in the Explanatory Notes to the Bill, the effect of the clause is comprehensive ... I repeat that this clause applies to all hereditary Peers, whether in the Peerage of England, Scotland, Ireland, Great Britain or the United Kingdom, and whether they are male or female, Royal or non-Royal, Peers by succession or Peers of first creation, holders of Baronies by Writ or in possession of a Patent of Creation or sit by virtue of a Writ of Acceleration or by a peerage called out of abeyance".--[Official Report, 29/4/99; col. 532.] It is an impressive list but, to my interpretation, regrettably, it is not comprehensive.

As I understand it, it remains entirely possible for an individual to be issued with a Writ of Summons to this House even though he is not entitled otherwise to receive one. I am conscious in this regard that I trespass upon the knowledge and expertise of the noble Lord, Lord Strabolgi. But that method of creating a peerage, a Barony by Writ or in Fee was referred to in the proceedings before the Committee for Privileges in this House as recently as the 1994-95 Session in the matter of the Barony of Farnham.

In particular, the Committee may wish to take note of the submission to Her Majesty from the then Home Secretary in which he refers to the doctrine of Lord Coke:


    "in that where a person who is not entitled to receive a writ of summons nevertheless receives a writ and sits in Parliament in obedience to it, he becomes a baron by writ".

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Moreover, the Committee will be aware of the advice of the Attorney-General in that case, that a peerage so created is hereditary in character. Of course, it was held that Lord Coke's doctrine did not apply in the case of the Barony of Farnham but the possibility of peerages being created in that way, given the right circumstances, does not appear to have been called into question.

In effect, again, as I understand it, it would be exercise of the Writ, at least for the term of the first Parliament which the individual attends, which would create the hereditary peerage. What matters is that anyone elevated to the peerage via that route is not picked up by the terms of Clause 1 because it would not be until after the Writ had been responded to and obeyed that the relevant peerage could be created. Under no circumstances, certainly in the case of the first Parliament attended, could an individual in receipt of such a writ be termed--I quote from the Bill:


    "A member of the House of Lords by virtue of an hereditary peerage".

Clearly, there are echoes there of the drafting difficulties exposed by the opinion of Mr. Lofthouse which were exhibiting the uncanny knack of peppering the whole construction of the Bill. I am sure that it will not have escaped the attention of the Committee that our amendment, in the pursuit of certainty, uses what we believe to be the more accurate terminology of an entitlement,


    "to attend, sit or vote in the House of Lords".

Having said that, I acknowledge that it is a narrow point. Indeed, it could be supposed that the prospect of the creation of any such Baronies in the future is unlikely, although we should be mindful of the recent inauguration by Nelson Mandela of an hereditary council of chiefs with legislative competence.

The point is that that represents a loophole in the terms of the Bill which, for the purposes of clarity and consistency, should be closed off. I beg to move.

Lord Strabolgi: I am grateful to the noble Earl for explaining the purpose of his amendment. I appreciate the kind remarks he made about me. As he said, the claim of Lord Farnham was that his barony had established a Barony by Writ but that was rejected by the Committee for Privileges because it was decided that those Irish Peers, after Irish independence, who had been elected had the right to sit for the rest of their lives. Indeed they did so, and the last one died some years ago. I imagine--perhaps my noble friend on the Front Bench will correct me if I am wrong--that the Writs have to emanate from the sovereign. I cannot envisage today that a sovereign would issue a Writ on the right of the Crown to somebody who was not a Peer of the realm and who had not already received his Letters Patent. I therefore cannot see that such a situation would arise in the days of a constitutional monarchy which we enjoy at present.

Lord Mackay of Ardbrecknish: I do not have a lot to say on this rather complex and, if I dare say to my noble friend, rather arcane point of peerage law, but it

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certainly appears from the Farnham case quoted by my noble friend and in fact Lord Coke's doctrine, that if such an event happened--and that is quite a big "if", I suspect--then the Peer so created would not find himself debarred by the terms of the Bill. His successor of course would because that, I presume, would be somebody who was here by heredity. In fact, the individual concerned would not--and I think this could be described as a little beyond belt-and-braces, but no doubt the noble Lord the Minister will explain it all to us in words that we can understand.


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