MONDAY 18 OCTOBER 1999

THE HON. MICHAEL BELOFF, MR JOHN LOFTHOUSE, LORD WILLIAMS OF MOSTYN AND MR PHILIP SALES

  CHAIRMAN: Mr Lofthouse, thank you very much for this note which you have prepared, which will assist us greatly. Not all of us have had the opportunity of reading it, of course, because we only got it very shortly. That is not a criticism at all. So perhaps you could take us through it, realising we are still reading at the same time.

  MR LOFTHOUSE: My Lord, indeed so. The purpose, as your Lordships see, of the note and, indeed, I am following it, if I may, is to pick up and deal with some points that appeared to be troubling some of your Lordships the other day.The first essential, I suggest, to understand in approaching this case is that a writ of summons to parliament is a formal document which has a precise function and which has a function and an identity and a nature which can be identified only by historical and legal analysis. Its effect is by now as good as a term of art and that is the term the Government has chosen to use. It is unsafe, when approaching a question about a writ of summons, to rely upon modern linguistic methods or methods of construction appropriate to a modern document because it has, as I say, an identified function and nature. So, for example, words such as "You will be personally present at our Parliament", if I wrote them in a letter today, might mean you will be there throughout, but when they are written in a writ of medieval original they have a meaning which can be ascertained from the cases and so forth that means, "You make an appearance on one occasion. When I have got you there I shall give you my further orders." The rationale for that is that to get you there is all a king needs. Once you are in the king's presence he can give you his further orders. You are bound to come at his order and when you come you are bound to obey.

  CHAIRMAN: It means "present yourself" rather than "be present at", is that what you are saying?

  MR LOFTHOUSE: My Lord, yes. You must be present. He tells you to be present, you come and you are in the parliament. When you are in the parliament you will be in the king's presence. The king is always either personally or legally present in parliament. If he were not it would not be a parliament.

  My Lords, going, if I may, as briefly as I may, through the notes, page 1 I have already dealt with. On page 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."

  My Lords, I think the last time that a group of people was settled but was actually thrown out was probably the Welsh Church lords spiritual in about 1914, and there are previous examples of it, as you know and as we have provided.

  "At the beginning of a parliament, or later arrival, a person summoned takes his seat"—as I have said—"and [upon that] is incorporated in the parliament. Thereafter his rights and duties arise from"—or are imposed by, I would say—"the Sovereign's legal presence .... " I say that because again some of your Lordships may have been troubled by the idea that if you are summoned and parliament is there for giving the king advice, what is the point of just arriving? What is the point of the writ? The answer is, as you will see as I go through the law, there are other methods that keep you there, other duties that bite once you come, and they are discrete duties and it is not a matter of antiquarian interest.

  LORD HOPE OF CRAIGHEAD: Mr Lofthouse, do you accept—and I am looking at the second sentence, paragraph 3—that the rights and duties are correlative with each other? In other words, so long as the duty subsists there is a right to attend and vice-versa, there is a right to attend in order to perform the duty?

  MR LOFTHOUSE: My Lord, yes, they go hand-in-hand. At one stage in history people regarded it as purely a burden to come to parliament. It took quite a while for people to start regarding it as a right. Early cases are largely concerned with people trying to avoid coming to parliament. Therefore, when one realises that one is dealing in this case with lords of parliament who have been sworn in this House and who are not alleged to have committed any fault, are to be ejected, it is said, without their consent, however appropriate—and it is not a matter for this Committee—in policy terms that may be, it is an enormous step which is being taken and one for which one would expect the right language to be used, and that is really the nub, of course. If it is the will of parliament it can be expressed clearly, and if it is the will of parliament and is so great a step it must be expressed clearly.

  LORD CAMPBELL OF ALLOWAY: Could I ask a question. As to this question of construction, which goes to the root of the submission, looking at 18 and 20 in particular of your case, do you accept that the general writ of summons at page 95, which on sitting after presentation, as you probably know, is either returned to the peer if he asks it or is kept in the Record office and grants entitlement to attend and also imposes obligations undertaken to the monarch as to the exercise of that entitlement until the end of parliament—does the grant of such entitlement—it is in a way the question asked by Lord Hope and I did not quite follow the answer and I know it is my fault—do you accept that the grant of that entitlement, correlates with the imposed personal undertaking to the monarch and can one, as a matter of construction, whether ancient or modern (to take your point), segregate the efficacy of the writ of summons as between grant and the imposed undertaking? Apart from abrogation by statute—I know that the monarch gave Her assent, prerogative on Second Reading, not Third Reading, and this is why I personally find it difficult to understand—how can the efficacy of the writ of summons be spent before the end of parliament, apart from being abrogated by statute?

  MR LOFTHOUSE: My Lord, it depends upon what the writ of summons is for. The writ of summons is merely to secure the initial coming to parliament by the lord. Once he has come he is then under duties. When he has come and perfected his title he comes under duties as a lord of parliament, duties that are well-known, duties that have sometimes been expressly made clear. One of those is the duty not to depart but the writ gets him there and he hands the writ in. Its only effect is to get him there. The king needs no more; the medieval monarch would have needed no more than to get you there.

  CHAIRMAN: I find it very difficult to read that into the form of writ which is issued during the existence of a parliament.

  MR LOFTHOUSE: My Lord, I will deal with that, if I may, I hope not impertinently, in turn, but may I preface it by this, that it was to address that very point that I made my opening remarks, which are that it is a very unsure guide to look at modern words to understand that writ. It has a precise function, a very precise function, and there is no difference in effect between what I have termed the general writ and what is the special writ.

  CHAIRMAN: In effect, it works both ways.

  MR LOFTHOUSE: My Lord, of course it can if it be established that I—

  CHAIRMAN: If you come unstuck on the second point and they must be read together, then you come unstuck on the other. On the other hand, if you succeed on the first, the second may follow.

  MR LOFTHOUSE: My Lord, yes, it may mean that. I am not actually in that rather deplorable case. I am able to make my case on both writs individually and then draw help from one to the other.

  My Lords, "4. The Sovereign may call anyone She pleases to parliament. Once they have answered, and been admitted, no question of preliminary qualification arises." There is, as I come on to examine, a series of qualifications that can get one in. At any stage one may trip up and not be admitted but once admitted, one is a lord of that parliament and is—and again if I may use the words that I may use in this submission, not elsewhere - proprio vigore, one who sits qua lord of parliament, and if I may use another term, the evidence, and it might be the writ that leads to admission, the peerage that leads to the writ, the evidence passes merges in the judgment and can no longer itself be relied upon or set aside. One must attack the judgment, the admission to the House, and that is the very thing this Bill does not even try to do.

  My Lords, I then, I hope not impertinently, put it in the form of questions and answers which at least clarify my own mind on these things. It is really right, as my Lord Slynn of Hadley said the other day, looking at the translation of some materials from Coke—

  CHAIRMAN: Forgive me, just to clear up this other point, I thought from your opinions and from what Mr Beloff was saying, that if a peer is asked, "Under what right are you sitting here in the House of Lords, voting and speaking?" it would be wrong of him to say, "Because I am a peer." He would say, "Because I have received a writ of summons. I have answered the writ of summons." I do not see why that only applies to day one. Why does it not apply to day 10 or day 30? "Why are you sitting here? Why are you speaking?" "I have answered a writ of summons."

  MR LOFTHOUSE: The answer is, "Because I answered a writ of summons"—answered; that is to say, the writ of summons has gone. "I am here in parliament and I have obeyed the command of the Sovereign in the House not to depart, to stay and to give my counsel, but the writ I had has gone in." It has, I think, sometimes had a line put across it and it has been stored in the Crown Office in Chancery, it is dead. My Lord, whether one can use the words "writ of summons" in effect, the people who chose to use that terminology, the first people to use what the noble Lord the Lord Chancellor called "arcane peerage law", were the Government in their bill. They have chosen to use a term of art, the effect of a writ of summons, and, my Lord, they got it wrong.

  LORD NICHOLLS OF BIRKENHEAD: Mr Lofthouse, does a writ, in your submission, convey rights as well as duties?

  MR LOFTHOUSE: My Lord, I think I can phrase it exactly in this way: it confers a right and a duty to be admitted to this House.

  LORD NICHOLLS OF BIRKENHEAD: A right to be admitted?

  MR LOFTHOUSE: A right to be admitted. It is the way Anson used it. If I am wrong, I am wrong with Anson.

  LORD NICHOLLS OF BIRKENHEAD: Your case hinges on saying a right to be admitted is spent completely once admitted?

  MR LOFTHOUSE: My Lord, yes, as one takes the oath, and as Anson puts it, one's title is perfected and the evidence, as I look at it, transit in rem judicatam, one has then acquired a settled membership, if you like, lordship, if you like, but you are in. It is terribly easy to get that right taken away. You only have to say in the bill "and shall no longer have the right to sit and vote in the House of Lords," half a dozen words, and we would not be here.

  LORD HOPE OF CRAIGHEAD: I thought that in answer to my first question you accepted that the right subsisted so long as the duty subsisted, that they were counterparts of each other, and so the key may well be what one makes of the command. Is that not the right way to look at it?

  MR LOFTHOUSE: My Lord, I agree that the rights and the duties are what is called correlative, but as to the duty and the right, I did not, I hope, say anything other than that the right and the duty are to come and to be admitted. That is the only duty that derives under the writ.

  LORD HOPE OF CRAIGHEAD: May I ask one other question. I note from Anson, who I think was said to be a reliable authority in this field, that the nature of parliament has changed very substantially since medieval times and for obvious reasons parliament now has to sit more or less continuously. I rather understand from your presentation that you are saying to us we do not have regard to that, that we have to construe the writ in the light of medieval conditions, and myself I find that difficult to understand. I do not see why one should not construe the writ which is in use today in the light of what we know about parliament today and the way in which it conducts its affairs.

  MR LOFTHOUSE: My Lord, let me answer, if I may, in this way. The principal change one notices is that parliament now sits almost continuously, that is to say, there is a parliament sitting most of the time, but one change that has not taken place is the fact that each parliament is a separate parliament. If I were better with my memory I could tell you which parliament of Her Majesty's reign this is, but at the beginning of your Lordships' Journals for this hearing they say, "Lords' Journals for the X session of the such-a-thing parliament of the Reign of Her Majesty Queen Elizabeth II." You are sitting, in fact, in point of theory and practice, in a separate parliament from the one in which your Lordships sat before 1997. This is a separate parliament just as much as the Salisbury or Lincoln Parliaments in the Middle Ages were separate. The fact that by statute—and it is only by statute—it is provided for parliamentary regularity (if I can put it that way) is nothing to the point. That change, which is the fundamental one, you might think, you might say, "Why do we need a writ of summons?"

  CHAIRMAN: The word "parliament" has to be construed to mean the parliament we know today. We do not have to look back and say, "What would have been a medieval parliament and it is only that body or that group of people who can be included in the writ." It must mean the modern parliament.

  MR LOFTHOUSE: My Lord, the parliament we have now in all its essential composition is the same parliament as the parliament of the Middle Ages. I would be grateful if anybody would put to me, because it would be helpful to me to be able to deal with this, any change in the composition or practice of parliament that might render the formulation of or construction of the writ—

  CHAIRMAN: If I could take us to the most obvious example, there were not any life peers in a medieval parliament.

  MR LOFTHOUSE: My Lord, that is a matter of contention.

  CHAIRMAN: There were not a substantial number.

  MR LOFTHOUSE: My Lord, again what is the difference between a life peer and an hereditary peer, rhetorically? One has a life peer, he still needs a writ, he still sits in parliament. How does that affect the construction of his writ of summons?

  CHAIRMAN: It is the construction of the word "parliament"?

  MR LOFTHOUSE: My Lord, parliament is the same, precisely. There are still people who are lords of parliament. This is very important because there is a danger of forgetting that the monarch has chosen, and there has been no change in the law, that a writ of summons has continued to be used as the instrument for getting people into parliament. Not a whit has changed in the last 700 years as to the need for or use of that document. As I say, I would be grateful to deal with any distinction that any noble Lord or, indeed, any of my learned friends could put to me that would affect that construction. I suggest there is none.

  CHAIRMAN: Thank you. We have your argument on that. Let us move on to the next point, shall we?

  LORD NICHOLLS OF BIRKENHEAD: At some stage I would be grateful for your best authority or citations or whatever in support of the proposition that a writ confers no greater right than to attend and be admitted and then it is spent, at some convenient time.

  MR LOFTHOUSE: My Lord, yes. I hope that in a very short space of time I shall be able to demonstrate to your Lordships that that is indeed so.

  CHAIRMAN: That is a critical question so we must get to it fairly soon.

  MR LOFTHOUSE: My Lord, yes. I am aware I am wandering a little.

  CHAIRMAN: That is not your fault, it is because of the questions you have been asked.

  MR LOFTHOUSE: No. I will whiz along, if I may. Question 1 and Answer 1 I have just been dealing with with my Lord Lord Slynn of Hadley. Perhaps I may now jump on to No. 2, that is, the structure, and the relevant law now is the law then for the points we are dealing with. Then "clear words are necessary. Is not clause 1 clear enough?" and I say, "No-one shall be a member of the House of Lords by virtue of an hereditary peerage," and I come back, as it were, to the matter that sometimes people think I have abandoned but I have not, which is that nobody knows which is the qualification for a writ.

  My Lords, certain types of hereditary peerage qualify certain types of people to demand a writ of summons to parliament. It is worth bearing it in mind that there are hereditary peers who have no right to demand a writ, most notably Irish peers. There are certain people who hold otherwise qualifying peerages who have no right to demand a writ—aliens and so on and so forth. So it is a qualification. What I call it at the top of page 4 is that a peerage of a certain type is thus a sufficient, but not a necessary, qualification to receive a writ of summons. I hope I will be forgiven the allusion to my Lord Lord Cranborne, but it is a very helpful illustration. A writ granted to someone who has no right to it will give the recipient the right of admission. There seemed at one stage a little doubt on the Government's side as to whether they knew that this is still the law. My Lord Cranborne was not a peer, had no right to call for a writ, but he received one and it was effective to admit him. My Lords, for interest's sake, the writ and warrant are obtained by leave of the Crown Office in Chancery.

  LORD STRABOLGI: Mr Lofthouse, could I ask you this. Lord Cranborne, as I understand it—I hope he will forgive me for mentioning it—received a writ of acceleration for which there are precedents throughout the ages right back to the Middle Ages. It did establish an hereditary peerage. Of course, there have been cases where the son has received a writ of acceleration, he has died before his father and the grandson has then succeeded to that peerage.

  MR LOFTHOUSE: Your Lordship has the Clifford of Launsburgh case in mind perhaps?

  LORD STRABOLGI: Yes.

  MR LOFTHOUSE: I think that is the only case.

  LORD STRABOLGI: There have been several over the centuries, but these so-called writs of acceleration have been given for the heirs of senior peerages. They do not go right down to barons but I think they include dukes, marquesses and earls. So you say that Viscount Cranborne was not a peer, which is true, and had no right to call for a writ of summons. Had he not a right to call for this writ under the writ of acceleration procedure, on which I think there have been about 90 cases during the centuries?

  MR LOFTHOUSE: It may be about 90. Your Lordship has in mind the appendix in the Complete Peerage, which is very helpful about it. But if your Lordship, for example, had two baronies, an older son might be given it. One would need to know the qualifying peerage but the distinction is this: my Lord Lord Cranborne has no right to a writ. He was a person upon whom the Monarch could confer a writ, but my Lord, there are many people upon whom Her Majesty could confer a writ in acceleration but She should not and if She received a letter from them to suggest that She does, they would receive a most gracious but slightly dusty response. They have no right. If your Lordship were not sent a writ to parliament, your Lordship would have a right to it. My Lord Cranborne had no right. The interesting thing is, your Lordship mentioned his writ in acceleration. That is merely peerage lawyers' shorthand. If you look at the writ, it is precisely the same as the writ your Lordship received to parliament.

  LORD STRABOLGI: Yes, but it is given in advance during the father's lifetime.

  MR LOFTHOUSE: It is given in advance but, my Lord, it is precisely the same form of writ. The only importance of calling it a writ in acceleration is that it prevents anybody coming along in many years' time trying to say there was a further barony created by writ when my Lord Lord Cranborne took his seat in 1992, to show it was the same peerage. We call it a writ in acceleration in those terms but in all other respects it is a perfectly ordinary writ. He had no right to it, he got it, and he gets into the House, and, my Lord, it is very important to understand that. A peerage pre-existing in oneself is a sufficient but not a necessary qualification for a writ of summons and it is only at the stage of seeking admission to parliament that one is right to make a challenge. You have seen it in the Wensleydale case—I am sure I do not need to take your Lordships to it—where the Lord Chancellor there was saying, "You have to admit Lord Wensleydale who came with a life peerage patent because he has got a writ of summons. Never mind his patent, he has a writ of summons," and the lords tried to prevent the admission of Lord Wensleydale but they accepted that had they let him in there would have been nothing they could do about it.

  VISCOUNT CRANBORNE: I wonder whether I could ask a question because it does seem to me to be relevant, since you were kind enough to use me as an example. I was always under the impression that because I had a writ in acceleration I was not an hereditary peer because my son, in spite of the example you gave, in the event of my dying before my father, under the existing law would not be able to inherit my effectively life peerage, even though I got it by a rather arcane route. This, of course, makes me think that the Government is wrong when it says that I am, in effect, an hereditary peer. I do not believe that to be so and I have always assumed that the proof of that was that I had been given this writ, the so-called, in shorthand, writ of acceleration, which, of course, makes it very difficult, in parentheses, for me to stand for this rather curious election compromise because I do not think actually I am an hereditary peer; I am effectively a peer for life and, if that is so, I suspect that that must mean that it is purely by virtue of the writ that I am here at all.

  MR LOFTHOUSE: My Lord, the question as to whether your Lordship's son will inherit upon your death is an interesting one. My Lord Strabolgi referred to it. I am aware of one case which is the Clifford of Launsburgh claim in the seventeenth century, which is reported without argument from the Committee for Privileges, where it was allowed that the son, a lord called in acceleration, died in his father's lifetime. The son did have a right to a seat in this House. Whether that would be followed today must be a matter of some grave doubt. There seems no rationale for it. The other question is whether your Lordship is a peer as opposed to a lord of parliament, and again there are some authors who referred to a lord in your Lordship's position being made a peer, being put among your peers, to the extent to which, being in the House of Peers, you would be a peer; whether an hereditary peer must be doubtful.

  LORD CAMPBELL OF ALLOWAY: If I may, on the question of construction, the writ of summons applies equally to life peers and to hereditary peers. I thought you to say, but I may be wrong, that we have an ancient construction when applied to hereditary peers, even if they are a first creation and neither had been created last year, and a modern construction, the life peer. Do you have to have the ancient construction right the way throughout and where, in another realm of jurisprudence, has one had this sort of situation before? It is new to me.

  MR LOFTHOUSE: My Lord, the same construction, the old construction, applies to both types of peer and it is significant that when life peerages by statute were first introduced, the first very nearly by the Appellate Jurisdiction Act 1876, they were not life at the time, they were for a term of office, and then by the 1958 Act both statutes took care to confer the right to a writ of summons upon the peer. It demonstrates in modern statutes the force of the writ of summons. There was no point in giving you a peerage without conferring a right to a writ of summons and they go further, and "sit and vote". They are not satisfied with one bill; they have two limbs.

  CHAIRMAN: I think we have very clearly the point that to sit in the House you must have a writ and you must answer the writ. I think Mr Beloff made that crystal clear on Thursday and I think you have really dealt with the second complete paragraph on page 4. Could you perhaps go on to the next paragraph at the bottom of the page.

  MR LOFTHOUSE: My Lord, yes. In fact, I have dealt partly with most of that. If I take the third sentence: "After that, the title to sit is perfect and lcannot be challenged." I put Anson and I will go to Anson, if I may, in a moment—"The right/duty can be removed by Act of Parliament, and has been on occasion, but by precise words [of a sort which are] absent from this Bill." That is, as you know, none of our case. I say, with perhaps a little irony: "In a sense para. 37 of the Government's Case gets it right." I was worried about something about the word "precondition" used in the Government's case and it kept worrying me and nagging me and I finally realised that they were with me, because they were with me in seeing that there is a precondition. There are preconditions to entry—precondition, qualification: peerage to writ to sitting, and they have got it right and they do not know it. And the trail goes thus: "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." A new status, a discrete status, has been conferred upon you.