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Select Committee on Privileges First Report

APPENDIX 2

Case for the Lord Mayhew of Twysden; propositions of leading counsel; and notes to accompany the submission of junior counsel

1. CASE FOR THE LORD MAYHEW OF TWYSDEN

THE FUNCTION OF THE COMMITTEE FOR PRIVILEGES

1. On 27 July 1999, the House of Lords ("the House") voted to refer to the Committee the question "Whether the House of Lords Bill (as amended on Report) would, if enacted, affect the right of those hereditary peers who have answered to their Writ of Summons before the Bill receives Royal Assent to continue to sit and vote throughout the Parliament in which the Bill is enacted". The House has referred a question to the Committee, and the Committee's duty and function therefore is to report to the House its opinion on that question, which embraces the issue identified in the agreed Statement of Issues.

The Earl of Antrim's Petition

Report by the Committee for Privileges on the Petition of the Irish Peers

The Earl of Bristol's Case

Wensleydale Peerage Case

Discussion and Judgment of the Lords on the Life Peerage Question

Wensleydale Peerage Case,

Wensleydale,

THE ROLE OF THE LORD MAYHEW OF TWYSDEN

2. He is not a petitioner, but moved the Motion by which the question was referred. He appears by Counsel to assist the Committee by arguing against the effectiveness of the Bill to achieve the Government's alleged aim and in favour of a negative answer to the question.

THE EFFECT OF THE BILL

3. The Government's alleged aim is to remove most of the hereditary element from the House, so that with effect from the end of this parliamentary session only those people referred to in clause 2(2) (the beneficiaries of the so-called Weatherill amendment) can, although hereditary peers, sit and vote in the House of Lords.

4. It is not in issue that parliament could give effect to that aim by appropriate legislation: in this area, concerned with the composition of the House, the sovereignty of parliament, a constitutional fundamental, is decisive. The issue is a different one: whether the Bill, if enacted, as presently drafted, would achieve that alleged aim or (as Lord Mayhew contends) a more restricted result. The resolution of that issue depends, elementarily, upon the language of the proposed legislation. To this the intention of the Government is (absent ambiguity) immaterial; likewise the notional intention of parliament (Black Clawson International Limited v. Papierwerke Waldhof-Aschaffenburg [1975] AC 591. at p 613 per Lord Reid). Viscountess Rhondda's Claim [1922] 2 AC 339 (Viscount Haldane p 393-384, Lord Wrenbury p 399; cf: Viscount Birkenhead LC pp 349-350) establishes that no materially different approach should apply before the Committee for Privileges.

5. In particular context, certain principles of statutory interpretation are relevant. The Bill affects parliamentary composition, and the right to participate in the affairs of the legislature by vote and otherwise. Accordingly, and reflecting the importance of the matter, clear words are required to achieve any alteration (Viscountess Rhonnda's Claim [1922] 2 AC 339 per Viscount Birkenhead LC at p 365). Strikingly, and in accordance with this approach, in The Barony of Farnham (1995) HLP 85-I it was held that peers who were elected to sit and vote for life on the part of Ireland were not ejected from parliament when their constituency (Ireland) ceased politically to exist.

6. This particular principle, germane to the House's composition, is consistent with a more general rule that a fundamental or constitutional right, such as the right to participate in government (Halsbury's Laws, 4th ed, Vol 8(2), para 118) cannot be abrogated otherwise than by specific provision (R v Lord Chancellor ex parte Witham [1998] QB 575 at p 581E per Laws LJ; R v Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328 per Lord Hoffman at pp 341-2.

7. The right to sit and vote in the House is conferred by obedience to the writ of summons (Halsbury's Laws of England, 4th ed, Vol 34, Reissue 1997, paras 535, 701; The Earldom of Norfolk [1907] AC 10 at pp 12, 13 and 17-18). That writ is so powerful that, if a person not already a peer (or the son of a peer with two or more peerages giving a right to a writ) receives and sits in response to a writ, he becomes a peer ipso facto even perhaps if the writ was issued in error (The Hastings Peerage (1840) 8 Cl & Fin 144; Cruise on Dignities 2nd ed p 317; The Barony of Grey of Codnor (1989) HLP 59-I and The Barony of Strange (1737); (discussed in Cruise on Dignities, 2nd ed p 317)). If a writ were withheld, the peer could not sit—he would have to petition the House for them to ask the King to send a writ (1626) 3 Lords Journals 537, 563 (Cruise op cit p 317).

8. Statutes whose subject matter embraced the right to sit and vote in the House, support the proposition advanced in paragraph 7 and include:

9. Case law is to the same effect:

Nevills Case

The Vaux Peerage Case

Sybil

The Braye Peerage Case

The Camoys Peerage Case

The Hastings Peerage Case

The Wensleydale Peerage Case.

The Viscountess Rhondda's Claim

The Barony of Grey of Codnor

(cf Re Parliamentary Election (Bristol South East) [1964] 2 QB 257 which, however, was dealing with disqualification from sitting in the Commons, not qualification for sitting in this House).

10. There are, in consequence, two limbs which are always dealt with whenever parliament excludes a lord of parliament from this House:

It is submitted, for reasons developed hereafter, that this Bill, in its present incarnation, expressly chooses to attack part of limb (a), but not limb (b). It does not even purport to exclude peers who have taken their seats in this parliament in response to a writ of summons.

11. This is a Bill "to restrict membership of the House of Lords by virtue of a hereditary peerage". Clause 1 effects the general exclusionary purposes of the Bill (subject always to clause 2). Although in strict law it is erroneous, as no one is a member by virtue of any peerage, but becomes a member by answering a writ of summons (Wensleydale, Macqueen pp 74-75, Rhondda, p 359), and then remains a member by virtue of the duty to remain until discharged. It is accepted that a purposive approach leads to the construction that in consequence of clause 1, no one shall be entitled to a writ of summons by virtue of an hereditary peerage, nor be obliged to answer one. The language of clause 1 is thus a convenient shorthand for the achievement of its effect. Combined with clause 2, it sets up the form the House is in future to take: but says nothing itself about the means per quod or the time a quo such reformed composition is to have effect.

12. The question of how and when clause 1 is to be implemented is the subject matter of clause 7, described in a marginal note as "Commencement and Transitional" (available as an aid to interpretation: Bennion, Statutory Interpretation, 3rd ed, pp 575-577). It states the mechanism and timing of removal of the hereditary element. Thus:

Clause 7(1):

Clause 7(2): writs issued to hereditary peers for this parliament shall "not have effect after" the relevant session. This provision can impact only upon those writs which have not yet had effect. Therefore it prevents any hereditary peer who has received a writ but not answered it from taking his seat after the end of the session, unless he be excepted under clause 2.

13. Since, elementarily, the Bill must be read as a coherent whole, clause 7(2) must be construed as explanatory of and consistent with clause 1. The word "accordingly" so requires: clause 1 will exclude peers who have taken their seats from future parliaments, and also exclude from this parliament any peer who has not received a writ of summons before the end of the session; clause 7(2) prevents any peer who has received a writ of summons, but not taken his seat before the end of this session, from thereafter becoming a member of the House, unless he has been excepted under clause 2. It effects a statutory equivalent of a writ of supersedeas.

14. This analysis does not deprive the Bill of useful effect, nor thwart the objective in the long title which may assist in its construction (Bennion, Statutory Interpretation, 3rd ed, pp 510-511).

15. Furthermore, the well established and hallowed incidents of a writ of summons, and the different consequences attached to (a) the issue of a writ (b) the obedience thereto must be taken to have been in the mind of the draftsman and recognised in the language deployed. Clause 7(2) does not adopt any clear formula to eliminate the distinction between the effect of issue of a writ of summons on the one hand and the duty to remain in a parliament after obedience thereto on the other.

16. The purpose of a writ of summons is to bring a peer to parliament for the first time. It tells him to come and join the parliament. He then hands in the writ. It has had its effect. He is there; it is no longer needed; it does not keep him: otherwise he would have to return it daily. Once he has handed the writ in, it is his status as lord of that parliament ("a member of the House of Lords") which confers rights and duties.

17. When a parliament is assembled it is a body in which the peers who have arrived are incorporated. Once in the parliament a peer is obliged to remain in it until permitted to depart. Adjournments and prorogations are of the parliament, the entity of which he is a member.

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 is 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:

the text of the writs of summons to this parliament, both general (issued for the beginning of a parliament) and special (issued to those who succeed, establish a claim, or are created during a parliament); the form, first in Latin, and later in English, has been virtually unchanged for seven centuries. Examples of writs are in the Appendix;

5 Richard II, Stat.2 (1382) (Halsbury's Statutes 4th ed, Vol 32, 1996 Reissue, pp 673-4);

inter alia:

House of Lords Precedence Act 1539: " . . . congregacions of men . . . such [persons] as bene bounde to resorte to the same . . . " (Halsbury's Statutes, 4th ed, Vol 33, 1997 Reissue, p 338;

4 Coke's Institutes

12 Coke's Report

Meeting of Parliament Act 1694, s 2 (Halsbury's Statutes, 4th ed, Vol 32, 1996 Reissue, p 678);

Septennial Act 1715 (ibid, p 680);

Meeting of Parliament Acts 1797 and 1799 (ibid pp 682-3) (demonstrates that parliament, once assembled, is an entity);

Cruise on Dignities

Third Report on the Dignity of a Peer of the Realm (1829 reprint), p 76;

Wensleydale

Parliamentary Oaths Act 1866, ss 1, 3, 5 (Halsbury's Statutes, ibid, pp 703-704);

Meeting of Parliament Act 1870 (Halsbury's Statutes, 4th ed, Vol 32, p 708);

Peerage Law in England

The Emergency Powers Act 1920, s 1(2) (Halsbury's Statutes, 4th ed, Vol 48, p 933);

Life Peerages Act 1958, s.1(2)(b), s.1(4) (Halsbury's Statutes, 4th ed, Vol 33, 1997 reissue. p 345);

Peerage Act 1963, ss 4, 6 (ibid, pp 349-350);

Reserve Forces Act 1980, s 10(2) (Halsbury's Statutes, 4th ed, Vol 3, p 740);

The House of Lords 1603-1649

Representation of the People Act 1985, s 20; note references to date of meeting (Halsbury Statutes, 4th ed, Vol 32, p 766);

Attorney General -v- Jones

Antrim

the enacting words in statutes " . . . in this present parliament assembled";

Halsbury's Laws, 4th ed, Vol 34, paras.535, 701,702,704, 709;

Halsbury's Statutes, 4th ed, Vol 32, text at p 663 ("Summoning").

19. 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? Anson, The Law and Custom of the Constitution, 5th ed, 1922, Vol I, pp 63-65, 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.

20. There are two types of penalty: one for failing to obey the writ, the other for departing without licence (Palmer, op cit p 142). This emphasises the lack of effect of the writ after obedience, and the distinctiveness of the two limbs.

21. Thus, to summarise, clause 7(2) merely removes effect from writs of summons. The only writs of summons which could still have effect qua evidence of entitlement to sit are those which are unanswered. Writs of summons which are answered are spent as to their effect.

22. It is accepted that clause 7(2) must be given useful purpose. Otherwise the conventional presumption against redundancy would be affected. The construction advanced, however, gives it such useful purpose. Without clause 7(2) the position of a holder of an unanswered writ would be in doubt: does he obey the Sovereign or not? Clause 7(2) indicates that clause 1 and clause 7(1) alone would not prevent a peer in possession of an unanswered writ of summons from being admitted to the House, nor absolve him from the obligation of coming. By contrast, it is repeated, nothing is said about those who have answered this peremptory summons and have been incorporated in the parliament which began in 1997.

23. Thus there is on the face of the Bill something special about those who have received writs to this parliament: clauses 1 and 7(1) do not affect them without more. Clause 7(2) makes that plain; and by dealing only with those who have not answered their writs, it makes it plain too that those who have answered are not to be ejected in mid-parliament.

24. The point is reinforced by looking at the other legislation which has removed peers from parliament: it always deals with both limbs:

Irish Church Act 1869, s 13;

Bankruptcy Disqualification Act 1871, ss 2 and 8 (rep.);

Appellate Jurisdiction Act 1876 (as originally enacted), s. 6 ". . . shall during the time . . . and no longer . . . in the House of Lords" (Halsbury's Statutes, 4th ed, Vol 11, p 773);

Welsh Church Act 1914, s 2(2) (Halsbury's Statutes, 4th ed, Vol 14, p 1102);

Titles Deprivation Act 1917, s 1(4) (Halsbury's Statutes, 4th ed, Vol 33, p 342);

Peerage Act 1963, s 3(1); this is the only Act which does not in terms mention either limb, but it (1) divests the peer of the peerage and (2) uses language (s 3(1)(a) and (b)) of comprehensive scope covering ". . . rights . . . privileges . . . obligations . . ." which amply deals with both limbs (Halsbury's Statutes, 4th ed, Vol 33, 1997 Reissue, p 348);

Insolvency Act 1986, s 427(1) and (3) (Halsbury's Statutes, 4th ed, Vol 4, p 717).

25. It is submitted that parliament would not so consistently have legislated to deal with both limbs if it were not necessary to the object of excluding a peer. The inclusion of one limb here, and omission of the other, means that the essential parliamentary machinery for ejecting a sitting peer has not been set in place; whatever the Government's intentions, it has not taken steps to implement them.

26. There is an absence of any additional machinery which one might expect. How, if peers are to be expelled in mid-parliament, are those affected to be identified? By the Lord Chancellor? By the Clerks? In each case, by what authority? In the unlikely event of a dispute, who would decide the difficult questions whether His Royal Highness The Duke of Cornwall or Viscount Cranborne are "hereditary peers"? Lord Mayhew's construction is clearer and in line with constitutional practice, and puts the onus upon the Lord Chancellor, as is fitting. He (i) during this parliament will decline to accept writs from non-excepted hereditary peers who have yet to take their seats or to issue to such peers and (ii) for the next parliament will decline to issue writs to non-excepted hereditary peers.

27. Lord Mayhew's construction makes, moreover, good constitutional sense:

(a) concentrating on future writs means that the Bill is certain. On his case, the officers of the House are placed in no difficulty.

(b) otherwise, any hereditary peer expelled during this parliament will be left without representation; he would be governed by a parliament of which he was not a member and to which, unless he succeeded or was created after voting, he had elected no member. This consequence should not lightly be entertained.

(c) the remarkable discretion given to the Secretary of State by clause 7(3) and 7(4) is significant. If all non-excepted peers were immediately expelled by this Bill, then they would immediately become entitled to the rights set out in clause 4. No sound reason could justify any delay. A power to make "transitional provision" can be needed only if, as Lord Mayhew argues, the exclusion of hereditary peers takes place in a staged process. So clauses 7(2) and 7(3) fit neatly together as two sides of the process of transition to the new constitution of the House of Lords.

28. Clause 4 does not affect this construction. It does not mean that, for the rest of this parliament, non-excepted hereditary peers will have rights to sit in both Houses. This is because the clause (1) merely reverses the effect of Re Bristol South-East Parliamentary Election [1964] 2 QB 257 (which held that it was by virtue of a peerage, not the writ or taking of a seat, that a person was disqualified from another place) and (2) does not affect the position at common law and in parliamentary privilege, with the result that a non-excepted hereditary peer would be, qua lord of parliament, disqualified for the rest of this parliament from voting for or sitting in another place: cf Rhondda, p 368, and Pike, Constitutional History of the House of Lords, pp 267-269. See also the Sessional Orders customarily passed in another place, and Recess Elections Act 1975, section 1, and Schedule 1 (". . . peer of Parliament . . .").

29. Nor does the limit of 90 in clause 2 affect the argument, clause 2 excepts from clause 1, which, on such argument, does not impact upon current "members of the House of Lords" at all until the next parliament.

EUROPEAN CONVENTION ON HUMAN RIGHTS ("THE CONVENTION")

30. The Baroness Jay of Paddington has made the following statement under section 19(1)(a) of the Human Rights Act 1998: "In my view the provisions of the House of Lords Bill are compatible with the convention rights".

31. The Convention provides at Article 14:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Article 3 of the First Protocol states:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

32. In Matthieu, Mohin and Clefayt v Belgium (1988) 10 EHRR 1 the European Court of Human Rights held:

(a) The Article gives rise to individual rights (paras 48-50, pp 15-17);

W, X, Y and Z

Belgium

(c) Any conditions which limit the right must not curtail the rights in question to such an extent as to impair their essence: they must be imposed in pursuit of a legitimate aim: and must not apply disproportionate means (para 52, p 16).

(d) Such conditions must not thwart the free expression of the opinion of the people in the choice of the legislature and must protect the principle of equality of all treatment of all citizens in the exercise of their right to vote and the right to stand for election (paras 52 and 54, pp 12-17).

(see also Gitonas v Greece (1996) 26 EHRR 691 (para 39, pp 712-713). Cf the recent case as to Gibraltarians' rights: Matthews v United Kingdom (24833/94)).

33. If the primary argument be correct, a group of hereditary peers (ie those who had not obeyed the writ of summons issued for this parliament) will be left as from the end of this session without representation (see para 27(b) above).

34. If the primary argument be incorrect, the group of such unrepresented hereditary peers will be larger (ie will exclude all save the excepted ones).

35. It is submitted that this denies to members of that group (however defined) the rights guaranteed by the Convention and falsifies the section 19(1)(a) Statement of The Baroness Jay of Paddington.

36. There is no reasonable basis for the denial of such rights: it promotes neither the independence of members of parliament nor the freedom of choice of the electors—two justifying factors alluded to in Gitonas. It creates an inequality among the electorate.

37. Further it is unacceptable in terms of the law of the Convention that the Secretary of State (a member of the executive) should enjoy discretionary powers in this context. A fortiori, the power to deal with rights to vote in European elections. Since all peers already have it, for what purpose is it conferred if not to restrict the right? (European Parliamentary Elections Act 1978, Sch 1, para 2(1); Halsbury's Statutes, 4th ed, Vol 15, p1301).

The Honourable Michael J Beloff QC

John Lofthouse

2. PROPOSITIONS OF LEADING COUNSEL

The propositions that I will seek to advance on Lord Mayhew's behalf are these:

1. It is just, convenient, appropriate and indeed necessary that the Committee should consider here and now the question referred to it.

2. The question itself depends upon an analysis of the language of the Bill in its present incarnation with a view to determining whether it indeed achieves what is said to be the Government's objective.

3. Given that the issues raised bear on the composition of the House and the right to participate in its activities, the principle of legality requires clear words significantly to affect such composition, or remove such rights from those who presently enjoy them.

4. It is inherent in the drafting of the Bill, as is indeed the case, that in order to remove rights to sit and vote from hereditary peers, it is necessary in some wise to make provision by reference to the Writ to Summons addressed to such peers by the Monarch.

5. The Writ of Summons is a command to attend Parliament. Once the writ has been returned and the peer taken his or her seat its effect is spent (this is a crucial submission).

6. (i) The Bill by focusing on the issue of the Writ and denying such issue any further efficacy has only denied to those peers who have not made a return to the writ, the right to make such a return and in consequence to sit and vote in the House hereafter.

(ii) By contrast the Bill does not seek to abrogate the rights of those who have made a return to the writ and whose right to sit and vote thereafter:

(a) results from that return, and not from the issue of the writ itself and

this

7. Such a limiting interpretation is reinforced by reference to the ECHR which guarantees both the right to vote, [which, on the Governments interpretation of the Bill, would be removed from all save Wetherill peers], and the right to stand for election to the legislature [which they did not enjoy in respect of the present Parliament].

8. The ECHR can be prayed in aid in the event of ambiguity of domestic instruments, a fortiori having regard to the fact that it will, in material part, shortly be incorporated into domestic law.

3. NOTES TO ACCOMPANY THE SUBMISSION OF JUNIOR COUNSEL

PURPOSES OF THESE NOTES

1. To shorten the time of oral submissions, and to save note-taking. The Notes are put in the form of Questions and Answers to meet issues which some noble lords have raised in the hearing so far. The Notes deal principally with the nature of the writ of summons.

INTRODUCTION

2. Each parliament called by a Sovereign is separate. This case is solely about this Parliament, the one called in 1997. The central issue is whether this Bill achieves the remarkable effect of removing from a legislature in the free world a substantial number of its members.

3. At the beginning of a parliament, or later arrival, a person summoned takes his seat and is incorporated in the parliament. Thereafter his rights and duties arise from the Sovereign's legal presence in parliament and/or the obligations laid by the House on those within it.

4. The Sovereign may call anyone She pleases to parliament. Once they have answered, and been admitted, no question of preliminary qualification arises. The title to sit is perfect, and arises from being a lord of that parliament.

QUESTIONS AND ANSWERS

Question 1

Why are you showing us so many materials from past centuries? Are they not merely of antiquarian interest?

Answer 1

Because the structure of parliament, and the writs of summons, have been effectively unchanged for seven centuries. If one seeks to know what a writ of summons is for, or what the duties and rights of members of either House are, it is essential to look at how they have been treated in the past—since the relevant law has not changed. What was law then on these matters is law now.

Question 2

You say clear words are necessary. Is not clause 1 clear enough?

Answer 2

Clause 1 says that no one shall be a member of the House of Lords by virtue of an hereditary peerage.

It is trite law that no one is a member by virtue of any type of peerage. Particular types of peerage held by particular types of people qualify the holder to demand a writ of summons. (Rhondda (Vol I, p 214), Bristol (Vol I, p 78.)

A peerage of a certain type is thus a sufficient, but not a necessary, qualification to receive a writ. Yet a writ granted to someone with no right to it will give the recipient the right of admission. For example, Viscount Cranborne was not a peer, but he received one, and it was effective to admit him. (Writ and Warrant appended hereto.)

At the stage of seeking admission in any parliament, the right to admission may be challenged (as it was in Wensleydale). After that, the title to sit is perfect and cannot be challenged: Anson (infra). The right/duty can be removed by Act of Parliament, and has been on occasion, but by precise words absent from this Bill.

In a sense paragraph 37 of the Government's Case gets it right (although "qualification" would be a more accurate word than "precondition"). There is a trail thus: (1) Are you a qualified person holding a qualifying peerage? If Yes: you are entitled to a writ. If No, you may yet receive one. (2) Is your writ returned and admission granted at parliament? If Yes, then you become a lord of parliament, sitting in the Royal Presence and at Its Command: you sit by virtue of your lordship of that parliament.

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.

It is rather like the change in a university's matriculation requirement when one is at the university. It will look to future potential undergraduates, but not (without clear words) expel current undergraduates. Matriculation has conferred a discrete status.

Clause 7(2) compels this interpretation.

Question 3

How can you say that clause 7(2) compels your interpretation? Does it not eject all hereditary peers by stopping the effect of their writs of summons?

Answer 3

No. A writ of summons is designed to get a person to parliament. That is all it is for.

Question 4

How do you reach that conclusion?

Answer 4

We look at a wide variety of documents and authorities.

A. Proclamations

These are the root of title of a parliament. What they say is crucial. The one for this Parliament is at the last page of the Appendix to the Bound Volume. Note that the writs are to be for a named day and to be "returnable in due course of law". The writ is returned when the member takes his seat and hands in the writ. It can have no further effect. Other proclamations are set out at Authorities Vol II, p 329-331.

The writs are issued out of Chancery (the Crown Office in Chancery) and returned to it when they have achieved their end, when the recipient has come. "Return" is fatal to the Government's case. The writ is dead once returned.

B. Writs of Summons

The command is to come (general writ) on a certain day or (special writ) to come, meaning of necessity forthwith. The purpose for which the attendance is required is stated, but the writ is indeed returned before advice, etc, can be given.

Question 4A

What about the lack of a named day in the special writs? Does that not indicate life after return?

Answer 4A

The day is not named, since parliament is sitting. The Royal Command must be obeyed forthwith. The recipient of this writ has to return it when he comes, just as at the beginning of a parliament.

Question 4B

But 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?

Answer 4B

(1) The point is that the peer has come for the purpose of advice, etc. It is returned before any counsel can be given. There are various services the Crown can demand. The writ indicates which one.

(2) The analogy is with writs summoning for military service: one was summoned to come, armed, and ready to go on expedition at the king's orders; but the writ was obeyed by coming in readiness. See Stubbs, Constitutional History of England, (3rd ed, 1883, Vol II, p 289-290 (Fifth Bundle of Authorities, p 16. Failure to stay, etc, is a different breach of duty, as we shall see in a moment.

(3) The wording also serves to distinguish the types of service within parliament, lord or not lord. Thus the wording of the writs of attendance is different from a writ of summons. For a lord, it is:

" . . . personally present at Our aforesaid Parliament with Us and with the Prelates Nobles and Peers of Our said Kingdom to treat and give your counsel . . . ."

For a judge, for example, it is:

" . . . personally present with Us and the rest of Our Council to treat and give your advice . . . ."

A form of one is appended hereto. See also Cruise (Vol IV, p 1185, para 17).

C. Close Rolls

These contain records of writs sent out in the Middle Ages, the very time of origin of the current writs. The words "De veniendo ad parliamentum" in the margins make the point: see Authorities, Vol I, p 9, 21, 22, 23, 24.

D. Statutes

5 Richard II, Stat 2 (1382) refers to coming at the summons. The statute deals with coming, not with staying/not departing. Sir Edward Coke in his Institutes (Authorities, Vol IV, p 1,116) makes a clear distinction between the penalties for not coming, and the penalties for departing.

Septennial Act 1715 (Authorities, Vol I, p 33):

". . . the day on which by the writ of summons the said Parliament should be appoionted to meet . . ." expresses the point precisely. The writ is to assemble a parliament. The same point is made by Representation of the People Act 1985, s 20 (Authorities, Vol I, p 73).

E. Lord's Journals 1625-6

The extract from the Lords Journals for 25 February 1625-26 (3 Lo Jo 507) in the Fifth Bundle of Authorities p 1 makes the most precise distinction between not coming and failure after first coming.

F. Cases

There are in two categories: cases where a benefit (creation of a peerage) is conferred by obedience to the writ: this shows what the writ is for, since if the writ extended throughout a parliament, it would not have been obeyed until the end. It therefore clearly shows the effect of the writ: merely to compel attendance.

Lord Abergavenny's Case (Nevil's Case)
(Authorities, Vol IV, p 1119), says that until the sitting the writ "did not have its effect". The whole text of the case points against the Government: especially.

". . . come to the parliament, and there sit, according to the commandment of the writ; for until that, the writ did not take its effect, and the words of the writ were well penned, which are . . ."

The report then sets out the words (effectively the same as today's). Lord Hope of Craighead asked whether the wording as to counsel, etc, did not affect our argument. Coke's report shows that the "well penned" words not only do not adversely affect our case, but support it. He cites them immediately in support of the proposition we advance.

The significance is that a writ followed by a sitting in obedience creates a peerage if the person summoned was not already a peer. What is the "effect" of the writ? To place a person in parliament. If he is already a peer, merely to place him where he has been before; if he is not, to make him a peer and place him there. This case, decided in Parliament is clear authority that a writ's effect is merely to bring to Parliament.

Barony of Strange (Cruise, Vol IV, p 1194): "... full effect ...."

The Vaux Peerage Case (Authorities, Vol I, p 84) has very clear statements in favour of our approach. The passages are noted in para 9 of Lord Mayhew's Case (Bound Vol, p 7), and are essential to an understanding of what a writ is for. The uncontroverted argument of Sir Harris Nicolas contains such passages as:

"The Chancellor takes the writ from him as his authority, if I may so express myself, for admitting the new peer into this House." (Vol IV, p 103)

[Referring by analogy to another type of writ:] "{{ untill he has taken the oath of office—until, in other words, he obeys the writ."

The Wensleydale Peerage Case (Authorities, Vol IV, p 1150) Lord Lyndhurst, a former Lord Chancellor, says: "Now what is the object of a writ of summons? Merely to procure the attendance of a party: it calls upon him to appear in Parliament."

Cases in 4 Co Inst 15-19 These are on the translation sheets handed in on Thursday. Failure to obey a writ is an offence, but in these cases people who had come to parliament and left were proceeded against not for disobedience to the writ but for disobedience to an order not to depart. The King's Counsel in the first case expresses the matter precisely. The wording makes the distinction clear. (Orders to stay were clearly formerly expressly given: why if the writ was enough to keep them there?)

G. Authors

Coke 4 Inst 10 (writs "which tend to the beginning of the parliament") and 43/44 makes the distinction clear.

Anson, a writer of the highest authority, treats the writ as the means whereby the seat is taken. After that the right is perfected. (Authorities, Vol IV, p 1221/2, and Fifth Bundle, p 36 (". . . acquired. . . ".) On the Government's case, Anson is wrong.

Pike (Authorities, Vol IV, p 1273/4) speaks of the case cited above of the Bishop of Winchester: ". . . after having come to Parliament in obedience to a summons, he had departed without the King's permission. . . " The distinction was obviously familiar to this respected author.

SUMMARY ON EFFECT

The weight of royal, statutory, parliamentary, and academic authority is that a writ admits one, nothing more. In order to succeed on the point the Government must persuade the Committee that all the above authorities are wrong.

Question 5

You say that sitting lords have been expelled by legislation in the past. How was it done?

Answer 5

Clear words, which are necessary in parliamentary constitutional legislation (Rhondda, p 365-367, Tab 38, p 220-222). There are no such words here.

No Act has ever merely attacked the effect of the writ of summons. To remove a sitting lord against his will must be effected by removing the right to sit. Irish Church Act 1869, s 13 (Tab 11), Forfeiture Act 1870 (Supplementary Authorities, Tab 1), Bankruptcy Disqualification Act 1871, ss 2 and 8 (Tab 13), Appellate Jurisdiction Act 1876 (as originally enacted), s 6 (Tab 15), Welsh Church Act 1914, s 2(2) (Tab 17), Titles Deprivation Act 1917, s 1(4) (Tab 18), Insolvency Act 1986, s 427(1) and (3) (Tab 28).

A simple amendment to the Bill would do this. If it is Parliament's will to expel sitting lords, the amendment will be passed.