MONDAY 18 OCTOBER 1999

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

  MR LOFTHOUSE: He deals also with another type of writ that was the type of writ that gave a person the office of Chief Justice of the King's Bench, which at one time was conferred by writ. It is worth bearing in mind perhaps in the light of the wording of the writ to the Chief Justice of the King's Bench, what he says about that. Half way down page 104—

  CHAIRMAN: I remind you we have already read this, will you please take it shortly.

  MR LOFTHOUSE: My Lord, I do apologise. It was merely my concern on Thursday afternoon that from one or two remarks your Lordships might appreciate some further help, but you might not.

  CHAIRMAN: You are giving us help but there are points that your learned leader has gone through in the case and given us assistance on. Make your point by all means but please do it concisely.

  MR LOFTHOUSE: My Lord, I am only dealing with the matters which appear even this morning to be causing some of your Lordships some concern and I wish your Lordships to understand that the points that are raised against us are wholly without substance and would not be being made if—

  CHAIRMAN: I realise only too well that before we began after reading your papers you think the other side's case is total nonsense. We have that very clearly in our minds.

  MR LOFTHOUSE: My Lord, I am sure the same applies from them to us. It is that the Chief Justice of King's Bench is told to apply himself to his job in rather peremptory terms but Sir Harris Nicolas says that he becomes Chief Justice when he obeys the writ, that is when he takes the oath. My Lord, the self-same applies to a Lord of Parliament. You know well the remark of Lord Lyndhurst in Wensleydale.

  The cases that were handed in on Thursday, the translations from Coke's Institute, I look at them again briefly if I may, they were not really looked at in any depth on Thursday, I think possibly because my Lord, Lord Slynn, began by saying "when was the last time somebody was fined for not attending Parliament?" My Lord, I am not suggesting anybody should revive the practice.

  CHAIRMAN: It was a question of historical interest.

  MR LOFTHOUSE: My aim is to demonstrate—I hope I have done so far—that looking at documents from 1329 or 1555 is not done to interest or amuse, it is done because it sets out precisely an indication of the law of the constitution and Parliament which has not changed.

  I hope your Lordships have the document. I hope it is a particularly helpful document.

  CHAIRMAN: Yes.

  MR LOFTHOUSE: It contains two cases, one in the reign of Edward III and one in the reign of Philip and Mary. It is the third line, in the beginning, John Bishop of Winchester is brought before the court. Fourth line: "... to answer the lord king as to why, whereas a prohibition was issued by the same lord king at the king's parliament recently held at Salisbury against anyone who had been summoned to the said parliament leaving it without the king's permission, the same bishop had left the same parliament without the king's permission while the parliament was continuing to the manifest contempt of the king and contrary to the said prohibition of the king..." and the king sues through his counsel.

  The point I make is this man had a writ and you can see later he had a writ to Parliament. He has come to Parliament, he has gone away, the king does not sue him for failing to obey the writ, he sues him for disobeying a command to stay.

  Now a writ, why not sue on the writ? The reason because they knew that the writ had been obeyed. One sees further down the page, about half way down the page, a sentence beginning "At which day the said Adam .." this is the king's counsel, "At which day the said Adam who sues etc, and the same bishop in person both come. The said Adam says on behalf of the lord king that whenever it pleases him to hold a parliament for the benefit of his kingdom he has it summoned where and when he wishes and also makes a prohibition to those who are present at parliament that none of them leave contrary to his prohibition without permission. And if any of them leave contrary to the prohibition etc, to the king's contempt the king ....".

  Then at the foot of the page counsel for the Bishop of Winchester is reported in the year books as saying: ".. Sir, parliament is an assembly of the peers of the realm for the profit of the king and people, ..." Forgive me, just a little above that: ".... John Bishop of Winchester was arraigned in King's Bench because when he had come to Salisbury to parliament by summons he had departed without the king's permission."

  His counsel says, on the second line "... so when one of the peers does not come or comes and leaves without permission ..." My Lords, there is a distinction. Over the page, in the reign of Philip and Mary, this deals with the Commons but sets out the law of Parliament as to departing. Half way down, your Lordships see in square brackets, "... there follows a list of alleged absentees who had been summoned to the said parliament and had appeared there and were present there, with little respect to the said order and prohibition of the lord king and queen ..." as a prohibition again not to go "... and with little care or thought for the estate of the governance of this realm of England subsequently ... contemptuously left the same parliament without the permission of the said lord king and queen...".

  In those days sometimes plainly an express prohibition was given. I make the point if the king or anybody else had the faintest inkling of what we are now told is the law, that the writ has effect after you have answered it, there is no question but a medieval or Tudor monarch would have relied upon it and would not have relied upon some additional prohibition. There would be no need for the prohibition.

  That prohibition, whether given or not, is expressed in the duties that arise to the sovereign as being in his presence. One can never leave the sovereign's presence surely without consent or with the obligations imposed by this House.

  My Lord, I do ask your Lordships to consider those cases. They are central to the issues. I say departing involves any further non attendance as is perhaps rather too plain to argue.

  Running quickly down the authors, Coke, I have looked at 43 and 44.. In 4 Coke's Institute 10 he says writs "... tend to the beginning of the parliament". Tend to the beginning. Why does he say that if we are wrong? Does it not fit in with return?

  CHAIRMAN: Then we get the passage Mr Beloff and you both say is the best bit.

  MR LOFTHOUSE: Cannot do better.

  CHAIRMAN: Where can we find that?

  MR LOFTHOUSE: It is tab 63, my Lord, in the fourth volume.

  CHAIRMAN: I see in your note you say the right is perfected, it is completed. Does that necessarily follow that it loses all effect? The right to be there is perfected, it does not mean it is finished.

  MR LOFTHOUSE: My Lord, it is important to look—Anson deals with this—at how he begins. He begins by saying the evidence by which members of the House can establish their rights to membership and he treats a writ as evidence. That is on page 1221.He says, two thirds of the way down the page, ".... There are two things to consider before we come to the declaration by the King of the objects of summons in the speech from the Throne.

  "(a) The first is the evidence by which the members of the two Houses can establish their rights to membership.

  "(b) the second is the perfecting of the title to sit." Then he sets out the writ used for peers and then on the right hand page "... perfecting of the title of a member to discharge the duties of his office...".

  LORD WIGODER: Mr Lofthouse, forgive me, for the benefit of those of us whose page numbers at the bottom are totally indistinguishable, could you give us the page number at the top?

  MR LOFTHOUSE: My Lord, yes, it is 64 and 65, my Lord. I am sorry, these numbers are very often indistinguishable.

  LORD STRABOLGI: Which tab is it?

  MR LOFTHOUSE: My Lord, it is 63.

  CHAIRMAN: It is perfectly clear, is it, perfects the title? Does Anson say after that the writ has no effect whatsoever in clear language?

  MR LOFTHOUSE: My Lord, he does not need to. I tell your Lordship why. He treats it, does he not, on pages 64 and 65, as if one's attendance and arriving in the House is a submission to judgment. He looks at it as evidence and acquisition, indeed the word "acquired" is used on page 36 of the fifth bundle, how the rights are acquired at a later stage of his book. If it is the evidence by which the title is shown, once the title is shown, once the title is conferred evidence, is put in our case, characteristically has no effect after judgment. If the title is perfected it means there is something, that the lord is taking his seat then which is unchallengeable.

  To put it in a very basic way, it would be wholly inadmissible for any peer to be asked—If any of your Lordships now, for example, were asked by a doorkeeper, or by the Lord Chancellor indeed, "Excuse me, could I see your Writ of Summons, my Lord". You would say "What do you mean by Writ of Summons, I handed it when I came". "Oh, well you cannot, where is your Writ of Summons, you cannot sit here without a Writ of Summons." You say "It is sitting in the Crown Office building" "That is no good". If it has an effect you should keep it, have it in your pocket, always ready in case the Lord Chancellor decides to issue a writ of supersedens and you want to do something about it. It has no effect. You have a perfected title, the evidence, like a cause of action merges in a judgment, unless thereafter you must attack the judgment and the judgment is the admission and the admission is final. The word used by Anson "perfected" could not be stronger, my Lords.

  My Lord, in the fifth bundle at page 36 for some reason rather later on in his book—At page 36 of that fifth bundle.

  CHAIRMAN: Yes?

  MR LOFTHOUSE: Dealing with how you get your writ. Half way down the page, paragraph six of that, four lines from the foot of that paragraph "It remains to consider the process by which the right to sit and vote is acquired ...".

  LORD HOPE OF CRAIGHEAD: Which page are we on?

  MR LOFTHOUSE: Page 36 of that bundle, my Lord.

  CHAIRMAN: Page 229 at the top. Yes?

  MR LOFTHOUSE: My Lords, lastly Pike. I shall not take your Lordships to the passage because I set it out in my note. It refers to the case I referred to of the Bishop of Winchester "... after having come to parliament in obedience to a summons, he had departed without the king's permission..." Again the distinction.

  My Lords, if I may add orally a G. F was authors and G is the Bill itself. The use in the Bill in clause 7(2) of the word—we will have to go to it, it is in the appendix—clause 7(2) which is page 57 of the bound volume. "... Any Writ of Summons ... shall not have effect ...". If there can be successive continuing effect or effects one would expect to find the words "or further effect."

  The Bill itself has an internal consistency. It may be the noble and learned lord, the Lord Chancellor, got it right on 27 April.

  I end by saying the weight of royal of said authority is in our favour. I am not saying, and I am sure we will hear it, particularly from a Select Committee—one can deal with it in reply if it is raised—one can cherry pick from a select committee in 1956 and if any cherries are picked, the biggest cherries are ours. If any cherries are picked from that and if any of those are thought by your Lordships to have any sufficient weight to meet the volume of authority we have produced on this point then we will deal with those cherries in short order in reply if we may.

  My Lord, I look at question five—

  CHAIRMAN: You have referred us to it.

  MR LOFTHOUSE: Your Lordships have been through it.

  CHAIRMAN: We have been through it.

  MR LOFTHOUSE: Can I mention it, my Lords, in this way, to say that of course the matter must be decided according to settled law but it is settled as set out in those authorities. I invite your Lordships to take care not to be over persuaded by Government arguments which may tend to a serious error of law and historical accuracy, which will be a great pity for this House to produce, persuaded by my learned friends on the other side, to produce a document that did not reflect historical and legal status of a Writ ofSummons—

  CHAIRMAN: You may be assured that we are all very conscious of the importance of the case constitutionally and no less from the point of view of individuals concerned.

  MR LOFTHOUSE: My Lord, I am very grateful. My Lords, lastly because of that, as your Lordship will know, bearing in mind that whenever anywhere in the English speaking world any Government, good or bad, seeks, if it does, to expel from a sitting legislature its members, sometimes perhaps in less happy circumstances than this, they will look to see what approaches to language this House took on this occasion. Sometimes a beleaguered judiciary in another country will look for help to this Committee and I invite this Committee to approach the task demanding clear words. It can be done. A small amendment would do it. I can draft it for them myself within the next ten minutes. A small amendment, if it is the will of the House, my Lords, they will pass it, if it is the will of Parliament, as they tell us, Parliament will pass it. Why not do it? Make it clear. The constitution and the people demand no less. I suggest they deserve no less.

  CHAIRMAN: Thank you very much, Mr Lofthouse. Mr Attorney-General?

  THE ATTORNEY-GENERAL: May it please the Committee. The issues before the Committee are, despite outward appearance, of the simplest. My Lords, I think it is convenient if I make short submissions designed to be simply supplemental to the case which I know your Lordships have studied.

  My Lords, I deal very briefly with a preliminary point which I suppose I can call the jurisdiction point. My Lords, in other words, should this Committee be dealing with this matter at this stage at all? I adhere to the position which I indicated on Thursday morning. It is not suitable or appropriate at this stage. We should welcome the Committee's views by way of indication as to future practice if that is thought to be appropriate but, of course, as I said on Thursday morning, I am perfectly content to submit on the substantive question.

  LORD NICHOLLS OF BIRKENHEAD: Attorney-General, can you just tell me on one important aspect of this—just as an assumption—if the Bill were enacted in its present form and in the next session a member of the House as now constituted but according to the Government's intention no longer entitled to sit in the next session turned up asserting a claim to be entitled to sit, is that an issue that will be decided by the House or by a court of law?

  THE ATTORNEY-GENERAL: My Lords, by the House.

  LORD NICHOLLS OF BIRKENHEAD: Exclusively?

  THE ATTORNEY-GENERAL: I believe so.

  LORD NICHOLLS OF BIRKENHEAD: Despite that being a question of interpretation of the statute?

  THE ATTORNEY-GENERAL: My Lords, yes, because the House has the primary, I submit, the sole responsibility, to decide upon its own membership.

  LORD HOPE OF CRAIGHEAD: I am not clear how that would work. When you say the House, does that mean there would have to be a vote taken by the House?

  THE ATTORNEY-GENERAL: Yes.

  LORD HOPE OF CRAIGHEAD: One of the questions would be who is entitled to sit and vote?

  THE ATTORNEY-GENERAL: My Lords, that certainly would be a further complication, yes.

  LORD HOPE OF CRAIGHEAD: It might be said—I put this forward for your reaction—their Lordships in this Committee would be effecting a service in the House's interest in clarifying the issue which has been raised in a very exceptional situation.

  THE ATTORNEY-GENERAL: My Lords, that is undoubtedly true which is why I thought it better for me to take the stance that I did immediately on Thursday rather than just saying it is a point which is capable of being sustained. I do not think that is the appropriate stance for me to adopt.

  I do, however, say this in respect of the questions put by both your Lordships, that is on the hypothesis that the present draft Bill is passed unamended. I ought to mention perhaps by way of assistance that the two clauses relating to the Appointments Commission and the disqualification of life peers from sitting on anything to do with the extension of the life of a Parliament were both introduced against the Government's advice. It is necessary to bear in mind that this Bill that is presently being looked at has not even gone through your Lordships' House at this stage. There may well be attempts to amend at third reading, I do not know. Then, of course, the Commons have not considered it at all.

  It is very, very important to bear in mind, I think this goes specifically by way of illustration to the question that my Lord, Lord Wigoder, put, what does "accordingly" mean. Of course accordingly originally was much further up the Bill because a number of clauses were not there to intervene.

  CHAIRMAN: You have just said that it would have to be decided by the House largely rather than a court. It seems very likely that the House would refer it to a Committee for Privileges. If we do not decide it now we would have to decide if somebody challenged it next year.

  THE ATTORNEY-GENERAL: My Lords, as my Lord, Lord Nicholls, put the question to me I did detect in my own mind the necessary supplementary question which your Lordship has put.

  My Lords, I still maintain, if I may, that to provide ad hoc drafting assistance by way of advice on a Bill that has not gone through even one House of Parliament is an unwise thing to do. I do not put it any higher than that.

  My Lords, I think we have set out our stance in the Government's case in the pink bound volume and I think I need do no more than reiterate this is a Bill. What the Committee is being asked is to give ad hoc advice on a Bill which is actually not even through one House let alone two.

  My Lords, on a number of occasions Mr Lofthouse this morning referred to various citations and I need to come to them because they are not indicative, let alone determinative, of the question. My Lords, I venture to submit that this in fact is a simple point and it brings itself down to the interrelationship between clause 1 and clause 7. My Lords, I think my learned friend, Mr Beloff, made that perfectly plain when my Lord, Lord Nicholls, put the question to him. It is conceded in Lord Mayhew's case, page nine, paragraph 11, which I do not invite the Committee to go to but it is conceded and was reaffirmed in answer to my Lord, Lord Nicholls' question, that a purposive approach to clause 1 leads to the construction that in consequence of clause 1 no-one shall be entitled to a Writ of Summons by virtue of a hereditary peerage nor be obliged to answer one. That is a significant inevitable concession.

  My Lords, my submission on clause 7(2) is again of the simplest. It is found at page 56 of the bound pink volume and my submission is simply this. Clause 7(2) needs to be read in harmony with clause 1. My Lords I make this submission which is, I understand, of the tritest but this is a single purpose short Bill.

  My Lords, the word "accordingly", to which I referred a moment or two ago, is therefore in the draft and is apt and appropriate to take in clause 7(1), to give effect to the simple single purpose which is described in clause 1. The language of clause 1 I submit is of the simplest. It is clear and straight forward. There is no ambiguity capable of being dredged from it. It cuts through the arcane peerage law which I recognise to be of present interest. It is of course subject to clause 2, which one does not need to overlook here, the Weatherill Compromise.

  My Lords, clause 7(1) is equally clear. Again, my Lord, Lord Nicholls, raised this, inquiring, I paraphrase, of my learned friend, Mr Beloff, "what's its point", and the point is of the plainest, it is part of the harmony between clause 1, clause 7(1) and clause 7(2). I submit that there is not the slightest rational doubt capable of being maintained or sustained as to the joint achievement of the harmony between clause 1, clause 7(1) and clause 7(2). The achievement is the removal of the hereditary peers at the end of this session from your Lordships' House. There is after all no other category of member to which clause 1 can sensibly refer.

  The very limited issue between us, therefore, is that described in the first sentence of paragraph 30 of our case. It is at page 32 of the bound pink volume. The only difference between us, therefore, is that despite the interesting byways that we have explored, the issue between the Government and Lord Mayhew is whether clause 1 is confined to future Parliaments as opposed to the end of this session.

  My Lords, the alternative construction, for which my learned friends contend, is simply not sustainable because clause 7(1) is as plain as may be. Clause 7(1) at page 57 of the bundle, "Sections 1 to 6 ..." and I need only refer to section 1 at the moment "... shall come into force at the end of the Session of Parliament in which this Act is passed". That is no-one shall be a member of the House of Lords by virtue of the hereditary principle. It is membership of the House which is there attacked and it is done in plain words for an obvious reason.

  It is not "no-one shall be entitled to call for a Writ of Summons by virtue of a hereditary peerage". It is not "no-one shall have any doubt about continuation". It is "no-one shall be a member of the House of Lords by virtue of a hereditary peerage". My Lords, that applies to those who are presently members, to those who have not answered their writs and to those whose fathers are still alive and have a prospect at some stage, given the present state of our law, of becoming members of the House.

  My Lords, with the exception of the Weatherill Compromise, which I need to touch on in a slightly different context, from the end of the present session these words are plain, apt and appropriate to disentitle any member from being a member of the House of Lords by virtue of a hereditary peerage. Clause 1, I repeat, does not depend on the chance of whether or not a writ has been answered to.

  My learned friend Mr Beloff said quite plainly in answer to a question from Lord Nicholls, 7(2) is the "sheet anchor of my argument". My Lords, if 7(2) is indeed the sheet anchor of the argument, the ship is going to drift because it is clause 1 which is the dominant operative clause. I submit to this Committee there is no species of construction by which the effect of clause 1 and clause 7(1) and clause 7(2) can be distorted to produce the conclusion for which my learned friends have contended.

  My Lords, in the sixth bundle of authorities, which I think little attention has been paid to, because I think it was provided to the Committee late—

  LORD WIGODER: Which bundle?

  THE ATTORNEY-GENERAL: The sixth, it is a slim volume.

  LORD HOPE OF CRAIGHEAD: We do not have it in bound form. It is bound with paper clips.

  THE ATTORNEY-GENERAL: My Lords, I am so sorry. It was provided to me I think this morning. I had it in the form which the Committee had originally. It is split into three tabs.

  CHAIRMAN: It has the Standing Orders.

  THE ATTORNEY-GENERAL: My Lords, the standing orders point is the one that I am going to. Standing Orders have already been made. Page one of that sixth bundle. They have already been made for the election of the Weatherill Peers. My Lords, there would be no purpose in that if the propositions put before this Committee were sound. To rely on 7(2), I say again, ignores the power and position, as the dominant operative clause, of clause 1.

  CHAIRMAN: Just pause a moment. I do not know if all the Lords have a copy.

  THE ATTORNEY-GENERAL: There is so much paper, my Lord. Could I simply paraphrase my point.

  CHAIRMAN: Please pause.

  LORD RODGERS OF QUARRY BANK: I have not got the pink document. I have been trying to make that clear. I have not got that. Would it be possible for somebody to make that one available?

  LORD CAMPBELL OF ALLOWAY: We have not got that one here.

  THE ATTORNEY-GENERAL: My Lords, I think your Lordships are dealing with two separate documents. The noble Lord, Lord Rodgers of Quarry Bank, is referring back to the fact that when I referred to the Government's case, Lord Mayhew's case and various attachments, they are in a pink bound volume. I understood him to be indicating that he did not have the pink bound volume. Originally, just to produce a perfect harmony, it was of course bound in blue and was then rebound in pink but it is the same document.

  My Lords, as regards the slimmer volume, volume VI, I am not sure if all your Lordships on the Committee have it.