HL Deb 30 March 1922 vol 49 cc1012-36

THE CHAIRMAN OF COMMITTEES (THE EARL OF DONOUGHMORE) had given Notice to move, That the Report from the Committee for Privileges on the Petition of the Viscountess Rhondda praying for a Writ of Summons to Parliament be agreed to.

The Report was as follows:—

"1. That by Letters Patent, dated the 19th day of June, 1918, the Right Honourable David Alfred Baron Rhondda was created Viscount Rhondda of Llanwern in the County of Monmouth with special remainder in default of issue male to his only daughter the Petitioner, Margaret Haig Mackworth, wife of Sir Humphrey Mackworth, Baronet, and the heirs male of her body;

"2. That the said Viscount Rhondda died on the 3rd July, 1918, without having had issue male whereupon the said Margaret Haig Mackworth succeeded to the title and dignity of Viscountess Rhondda of Lanwern aforesaid;

"3. That but for the disqualification existing by reason of her sex the said Viscountess Rhondda would upon her succession to the said dignity have been entitled to receive a Writ of Summons to Parliament in right of the said dignity and to take her seat in Parliament accordingly;

"4. That the effect of the Sex Disqualification (Removal) Act, 1919, was to remove such disqualification, and that upon the passing of the said Act the said Viscountess Rhondda became entitled to receive a Writ of Summons to Parliament;

"5. That it is desirable that this House should humbly beseech His Majesty that a Writ of Summons to Parliament may be sent to the said Viscountess Rhondda."

The noble Earl said: My Lords, I beg to move the Motion standing in my name on the Paper.

Moved, That the Report from the Committee for Privileges on the Petition of the Viscountess Rhondda praying for a Writ of Summons to Parliament be agreed to.—(The Earl of Donoughmore.)

THE LORD CHANCELLOR rose to move, as an Amendment to the Motion, to leave out "agreed to" and to insert "referred back to the Committee for Privileges for re-consideration." The noble and learned Viscount said: My Lords, the course which I am about to take, in moving that the Report should be referred back to the Committee of Privileges, is an unusual one, but not unprecedented. The advice which I am about to give to the House is, in my opinion, amply justified by the very peculiar circumstances in which this Peerage claim arises, and the very grave constitutional questions which are involved in the recommendation of the Committee. The Chairman of Committees will accept from me, I am sure, the assurance that no member of this House more warmly appreciates than I do the services rendered by his Committee, or the ability, impartiality, and patience, with which he presides over it.

The course of the observations I am about to make will indicate clearly what are the exceptional circumstances, involving not the slightest reflection upon him, or, indeed, upon his Committee, which lead me to think that this is a case in which your Lordships as a body might desire that there should be further reconsideration. I do not intend at this stage to trouble the House with any legal arguments tending to show whether the decision of the Committee is right or wrong. If I did propose to address any such argument to the House my proper course would have been to do that for which precedent also exists—namely, to meet the Motion "That the Report be adopted" by a direct negative. I do not take that course because there are, in my view, very serious legal points to be considered which have not been adequately considered, and I do not think it either convenient or seemly that an argument on pure points of law should proceed upon the floor of the House itself and in the circumstances of our present debate. My proposal is that the case should be remitted to the Committee, in order that the points may there be re-discussed and that this House may receive from the Committee such advice as to them, after full debate, seems best.

I do not, therefore, commit myself in any way by this Amendment, nor must any observation that I make be interpreted as committing me to any particular view of the law on this subject. If I were committing myself to any particular view of the law, I should not be a suitable person to sit upon this Committee myself, and if this Amendment is adopted by your Lordships I shall most certainly make bold to offer my services to the Chairman of Committees in case he chooses to reinforce the somewhat slender numbers by whom this difficult matter was concluded.

I ought, at the outset, to say this. My noble friend, the Chairman of Committees and his colleagues were, I think, placed under some slight disadvantage by the circumstance that an ingenious argument—whether substantiated or not need not be discussed here—an ingenious and full argument was placed before the Committee on behalf of those who sought to establish this Peerage, and that my learned friend, or my noble and learned friend as he now is, the Lord Chief Justice, who appeared before that Committee as Attorney-General, did not advance any argument which might have assisted the Committee in order that both sides of the matter should be considered and discussed before them. He announced himself as being in agreement with the submissions and contentions which had been advanced on behalf of those who sought to establish the Peerage.

No one in this House has a higher respect for the legal attainments of the present Lord Chief Justice of England than I have. I have not had an opportunity of discussing this matter with him, and I must therefore merely record my own view, and that is that, whether the view which persuaded the Committee when presented in such singularly unilateral forensic conditions was right or wrong, it is not permissible to say that there is no possible case to be argued for the other side. I would ask your Lordships to take it from me—accepting, as your Lordships are often good enough to do, my opinion on purely technical points—that, whether the view ultimately accepted by the Committee be right or wrong, there is the most powerful case to be argued on the other side, a case which never has been argued, a case as to which those upon the Committee who were entitled to expect that the circumstances should be duly presented before them that they might be weighed by the Committee (which consisted partly of lawyers and partly of laymen), received no assistance at all from the argument as that argument was at the time presented.

In order that your Lordships should have fully before you such facts and arguments as may enable you to reach a conclusion upon the present Motion, it is proper that the facts should be stated with some precision, because no one must underrate the importance of the decision which the Committee of Privileges took. It is a decision which reverses the practice of centuries, which reverses the conception of the existing law, which, as I shall show your Lordships, was entertained at the moment when that Committee met, by some of the highest legal authorities in this country, and incidentally, and curiously, by some of the very legal authorites who sat upon the Committee and voted in favour of its decision.

On June 28, 1916, there was issued to Mr. D. A. Thomas, as he then was, a Patent conferring upon him the dignity of Baron Rhondda. The Patent differed in no way from the ordinary Patent which is issued upon the creation of a Barony. Two years later, in June, 1918, it became apparent that the very eminent services which Lord Rhondda had rendered to the country reacted very gravely upon his health, and the view was taken that the services were of such a nature that they deserved more complete recognition. Lord Rhondda had no male issue, and it was desired both that he should be advanced in rank and that, so far as was humanly possible, the dignity conferred upon him should remain as a permanent memorial to his family. There was, therefore, inserted in his Viscount's Patent, which was issued on June 19, 1918, a special remainder to the lady who is now known as Viscountess Rhondda and to her heirs male.

This Patent followed the form which is in common use in such a case which is familiar to some of your Lordships. It conferred the state, degree, style, dignity, title and honour of Viscount Rhondda to have and to hold the said name, state, etc., unto him the said Baron Rhondda, as he then was, and the heirs male of his body lawfully begotten and to be begotten, and in default of such issue and after his decease to have and to hold the name, state, etc., of Viscountess Rhondda unto Margaret Haig Mackworth, whom we now know as Lady Rhondda, and after the decease of the said Margaret Haig Mackworth to have and to hold the name, state, etc., unto the heirs male of her body lawfully begotten and to be begotten.

The Patent then proceeds in what are also the usual words in such a case— Willing … that the said Baron Rhondda and his heirs male aforesaid and in default of such issue the heirs male of the said Margaret Haig Mackworth and every of them successively and respectively may have hold and possess a seat place and voice in the Parliaments and Public Assemblies and Councils of Us Our heirs and successors within our United Kingdom of Great Britain and Ireland among other Viscounts as Viscounts of Parliament and Public Assemblies and Councils. Your Lordships will remember that the Patent in terms there specified the succession, in the first place, as devolving upon the heirs male of Baron Rhondda and, in the second place, the heirs male of Margaret Haig Mackworth, thereafter to be called the Viscountess Rhondda.

I do not trouble the House with further words from the Patent though there are words upon which, as it may probably hereafter appear, legal arguments one way or the other may be put forward and may be sustained. I have read I think enough to show the circumstances in which Margaret Mackworth comes to be Viscountess Rhondda, and the intention, for good or evil, and whether well-expressed or ill-expressed, and whether effectively or ineffectively, of the draftsman of the Patent when he endeavoured to carry out the instructions which he received, is one of the questions which require consideration. I have only to add on this part of the case the unhappy circumstance that within a few days after the granting of the Patent Viscount Rhondda died, his life undoubtedly shortened by the anxiety arising from his devotion to his labours in the public cause.

I pass to the next material set of facts. These, again, I am obliged to set out with some particularity, for though they may not be material as regards the construction to be ultimately put either upon the Patent or upon the Statute which is material to the present point, yet they are very relevant to be considered by your Lordships upon the limited Amendment which I now submit to you.

On March 21, 1919, a Bill called the Women's Emancipation Bill was introduced in the House of Commons by certain private members. This Bill contained the following clause to which I invite your special attention:— 3.—(1) A woman shall not be disqualified by sex or marriage from sitting and voting and receiving a writ of summons to attend in the House of Lords if a peeress in her own right. (2) It shall be lawful for a woman, being a peeress of Scotland or Ireland in her own right, to vote at the elections of representative peers of Scotland or Ireland respectively and to be an elected representative of the peerage of Scotland or Ireland and as such to sit and vote and receive a writ of summons to attend in the House of Lords. The Second Reading of this Bill was carried without a Division, and on July 4, 1919, it came on for Third Reading in the House of Commons. It was then opposed on behalf of time Government for reasons which are unconnected with the present question, but the Government Whips were not put on and the Third Reading was carried by 100 to 85. It was introduced in this House upon the Motion of Lord Kimberley.

The precise situation then was that the Government were themselves contemplating the preparation of a Bill to deal generally with the position of women in public affairs, and on July 14 I did, accordingly, introduce into this House the Bill for what has subsequently become the Sex Disqualification (Removal) Act. That Bill, on the face of it, proposed to deal with the position of Peeresses and reference to that fact was contained in its long title. Clause 2 of the Bill was as follows:— 2. His Majesty may include in the letters patent for the creation of a peer of the United Kingdom a provision to the effect that where the holder of the peerage is a woman she shall, if otherwise qualified, be entitled to receive a writ of summons to the House of Lords. I do not think that it is going beyond the strict limits which I have laid down for myself if I say that it is obvious that in the minds of those who prepared and introduced the Bill there were, at that time, three opinions.

One of them was that it was not enough to deal with the grave constitutional question of the admission of women to this House by mere general words—the definite intentions of the Government should appeal in most unmistakable form upon the face of the Bill itself. The second was that, as a matter of law, mere general words relieving women of the common law disqualification would not be enough to seat those women who were already in possession of Peerages. And the third was that it would be a highly unconstitutional proceeding that women, whose names had appeared in Peerages in remainder—there being at the time when they were so inserted no contemplation that they would ever have a seat in this House—should be seated by a general enactment such as this, without His Majesty being enabled to consider, upon the advice of his responsible Ministers, whether in the case of any of them Writs should issue to them.

I submit that the clause which I have read makes this position sufficiently clear, and I am perhaps entitled to say that at the time I explained the matter to this House with. I think, equal clearness. I also made it clear that this clause was not put forward as a Government proposal, that Government. Whips would not be put on when and if the clause came to be voted upon, and that every member of the House would then be free to vote according to his personal conviction. There was a certain amount of discussion upon the Second Reading, but it was ultimately carrie without a Division. On July 24 the Commons Bill, which I have already mentioned (the Emancipation of Women Bill) came on for Second Reading upon the Motion of Lord Kimberley. I opposed it, and it was negatived without a Division.

On July 31 the Government Bill came on in Committee, and Lord Finlay then moved an Amendment to omit the clause which I have already read relating to Peeresses. So, on the merits, the issue was most plainly raised by the Amendment moved by Lord Finlay. It is perfectly obvious to any one who reads the report, of the debate which ensued that it was a debate, aye or no, on the merits of the question whether Peeresses should be admitted to the House. It is a very remarkable circumstance that the Amendment was moved by Lord Finlay, who had recently held the high office which I now occupy, and whose opinion on the point of law would then, naturally, as it would now, command a very large measure of respect not only in the House at large but among his legal brethren. If any one had then suggested that Lord Finlay's Amendment was altogether vain and futile, I wonder what would have resulted. It was, of course, entirely vain and futile, upon the view which the Committee has adopted. Lord Finlay might as well have talked to us about the Summer Time Bill or any other subject to which his mind was then directed as of the admission of Peeresses to this House.

If any one had suggested that the acceptance of Lord Finlay's Amendment would have an effect directly contrary to that which he intended, that is to say, that upon the omission of the words it would be open to any one to contend successfully, not only that Peeresses could be seated in this House by Letters Patent, but that the ladies already named in Letters Patent would, upon the passing of the Bill, become automatically entitled to a Writ, no doubt such a suggestion would have received the earnest consideration which, to my astonishment it now appears that it deserves. But such an idea never crossed the mind of any one—it never crossed my mind. It must, of course, convey the very clear and very obvious meaning which we now know that the Committee has adopted, and the Attorney-General could not discover an argument against it. But, strangely enough, in an Assembly which is very competent in matters of technical advice it never struck anybody's mind that it was clear. Lord Finlay, in moving the Amendment, like the noble and learned Viscount, Lord Haldane, in criticising the clause, as he did upon Second Reading, seemed obviously to suppose that the House could vote one way or the other upon the Amendment, and that the effect of their decision—if the House decided to leave the clause out—would be to settle the question against the Peeresses.

But, clear as we are now told that this issue is in the opposite sense, I will undertake to say that there was not one noble Lord in the House who listened to or took part in that debate, and that there was not one noble Lord who recorded his vote in the Division Lobby, who had the slightest idea that it was not there and then within the competence of the House to decide, and to decide once for all, as far as that Bill was concerned, whether or not Peeresses were to be admitted into this House. There was, as I indicated, some debate, and in the result the clause was negatived without a Division. Thereupon, the words I occurring in the Title with reference to Peeresses were struck out. I remember distinctly moving that Motion. I must have been extremely short-sighted in relation to the whole matter, though I was thorough in my defectiveness, because, having succeeded in persuading your Lordships on merits not to admit Peeresses, as you could have done, of course, on a substantive Motion, I did not fail to observe that, the Title was drafted in language calculated to cover this section, and in the circumstances, in order that the whole House might be seised of the issue and the consequences of the Division—or the decision which had taken place, but which had not been marked by a Division—I thereupon moved that the Title should be amended, and everybody supposed, subject to the possible reservation I will indicate in a moment, that the House had expressed its will and expressed it effectually, and that the result of the Bill was not to seat either time Peeresses already existing or any others on whom His Majesty should hereafter confer that dignity.

The Bill then went to the House of Commons, and the Parliamentary history, as far as a Parliamentary history can be, is of absorbing interest in this point, especially having regard to what happened afterwards. That House did not move to reinsert the offending clause which had been under discussion, but an Amendment was moved to insert the following words (if I may say so to those who drafted them, a much less artistic method):—"including that of sitting and voting in the House of Lords" after the words "public function," where they occur at the beginning of the Bill. Once again the Government Whips were not put on, and the Motion inserting the words was carried upon a Division, and the Bill was returned to this House.

Let me pause there again. The House of Commons, which would naturally have been advised, if he were there, by the then Attorney-General (the present Lord Chief Justice) and the present Attorney-General (the then Solicitor-General), obviously shared the delusion which had captivated all of us in this House, because they all took the view that this Bill would not, and could not, achieve that purpose unless they put in either the clause which your Lordships had rejected, or a substituted but comparable clause. And thereupon they inserted the clause I have just read. No one will suppose that this House of Commons, or any other House of Commons, would pass the time in putting in a clause of this kind unless they thought that they contributed something new and something important. And the debate which took place in the House of Commons was a debate which proceeded upon merits, and the speeches and suggestions made were the speeches and suggestions of men who intended to add something to the Bill in the form in which it had gone to them.

In November, the Commons Amendment to the Bill came on for consideration here, and I moved to disagree with the Commons Amendment, which I have already described. I then expressed the view that the Amendment would not be effective for the purpose for which it appeared to be designed, and stated that, in my opinion, if Peeresses in their own right were to sit, it would be necessary to state clearly in the Bill that Writs should be issued to them. And then I added, as I very clearly recall, though I have not refreshed my memory by looking at the OFFICIAL REPORT, that it was extremely good-natured of the House of Commons, with all they had to do, to pay so much attention to our business and our representations. And as we were told that this House was about to be reformed, on the whole I would prefer that our improvement should not take place piecemeal but that we should become aware of the sum total of the beneficent changes to be made. And I think that argument carried some slight weight with your Lordships.

Then an incident occurred, which, in the light of after events, appears to me to be extremely puzzling. My noble and learned friend, Lord Haldane, who sat upon the Committee, and played upon it the part which his great experience and knowledge of these technical matters eminently qualify him to play, and naturally exercised over the Committee a degree of influence which his position in this House fully entitles him to, and is really inevitable in such a discussion, spoke in favour of the House of Commons Amendment. The House of Commons Amendment, on the view that the Committee has taken, was entirely otiose. It was, in the classical sense of the word, an impertinence, and all that my noble friend, Lord Haldane, had to do was to get up from his seat and tell us very plainly—"Do not let your Lordships take the slightest trouble about the Amendment or worry about it at all, because that which the Commons have sought to put into this Bill is there already. It is there implicit; it is there in the words 'public function.' So do not let us waste our time in desultory discussion. Let us proceed rather to more grave matters."

The noble and learned Viscount did, in fact, say:— If this Amendment is accepted it does not enable women who are Peeresses in their own right to take their seat in this House; they can only do that if the terms of the Letters Patent or of the other document creating the Peerage prescribe it, and also if a Writ of Summons is issued. It may or may not be necessary, if we admit the principle, that some Amendment may be required for the issue of the Writ of Summons. That expression of opinion to which the noble and learned Viscount lent himself, appears to me to be accurate. It is perspicuously and shortly expressed; but what does it mean? It means this, first of all, that that Amendment had to be carried before anything happened, because otherwise there was no point in saying: "If this Amendment is accepted it does not enable women who are Peeresses in their own right to take their seats in this House."

It is quite inconceivable that he would ever have spent time in pointing out what additional action would have to be taken, even if the Amendment were carried, if he had then a firm view that it was quite unnecessary to have any Amendment because the Act already carried with it the whole thing. Therefore, I am bound, quite irresistibly, to draw the inference—and I ask your Lordships to draw the inference—that this lacer conclusion was clearly that the Committee had unanimously accepted it. The then Attorney-General, though he did not realise the matter was before the House of Lords, did not even raise his voice in argument to the extent of one sentence on this particular point. It had never occurred to the noble and learned Lord who was principally the contributor to the decision ultimately reached.


No, no.


The noble Earl says: "No, no." I realise at once that all members of the House are in the same position. Some further discussion followed, and in the result the Commons Amendment was defeated without a Division. The Bill then returned to the Commons and the matter was again debated on the Motion made by Sir Ernest Pollock (now Attorney-General) that the Commons do not insist upon this Amendment. I pause here to say that if your Lordships think proper to take the course which I am venturing to advocate we should at least have one advantage, because Sir Ernest Pollock is now Attorney-General, and it is customary for the Committee of Privileges to rely particularly upon the advice and assistance of the Attorney-General. Now, the present Attorney-General evidently was entirely of the same opinion as the noble and learned Viscount, Lord Haldane—namely, that unless you did put an Amendment into the Bill it could not possibly produce the consequences which most of the Committee of Privileges have decided that it does produce.

This is what the Attorney-General said, speaking of the cases in which the names of women appeared in remainder in Patents: The Peerage, as drawn up by Patent, expressly gave no right of plane, seat or voice to the designated female holder in the House of Lords, and therefore it is not a matter which comes within the ambit of a Bill to amend the law with respect to disqualification on account of sex, because the particular disqualification in these eleven eases arises by virtue of a particular Patent, and that general alteration of the law would not affect those cases. This argument, and others which the Attorney-General addressed to the House—and which I hope the Committee of Privileges may have an opportunity of hearing if your Lordships accept my Amendment—prevailed, and the Commons agreed without a Division not to insist upon their Amendment. The Bill then received the Royal Assent in ordinary course.

It is true that the history of the stages through which a Bill has passed is not strictly admissible in a Court of Law, which has to declare the meaning of a Statute when it has become law. I am not prepared to make any admission here, that your Lordships, sitting in a Committee of Privileges, are bound by any such constructions as we impose upon the Courts of Law in such a matter, but that can be discussed later if necessary. I am not now arguing that because the obvious intention of both Houses of Parliament, as expressed in these debates, was to exclude Peeresses, and in particular the Peeresses claiming under Patents already issued; therefore the Act has carried out this intention. I shall certainly require to hear arguments as to what the true principle of construction to be applied in such cases is, and I should not address myself with any readiness to exclude argument based upon that point.

Such facts as these are very material to be considered by your Lordships when you have to weigh the gravity of the issues with which we are now confronted. And it is very material also in this connection to observe that the then Lord Chancellor—who was myself—together with his; immediate predecessor, my noble and learned friend, Viscount Finlay, and another, not the least distinguished among his other predecessors, my noble and learned friend Viscount Haldane, and the gentleman who now holds the office of His Majesty's Attorney-General, all considered, and necessarily considered, the effect which would be produced by the Statute in the form in which it now stands, and all came to the same conclusion upon it.

I have surely said enough to show that there is at least matter here which cannot be treated by a Committee which, though it would by its constitution command your Lordships' respect, was nevertheless perhaps hardly sufficiently representative of the House, as a whole, and that there is not sufficient to incline your Lordships to accept finally their recommendation in a matter so grave. After all Peeresses have not been admitted to this House, as your Lordships know, for centuries, and the question here is whether an Act of Parliament, not by direct provision but by proper legal implication, has made it necessary for your Lordships to say that Peeresses are hereafter to be admitted.

The point there divides itself into two parts. Are Peeresses, who have already received Patents which in the terms of such Patents do not admit them, inferentially to be admitted to this House, or are only those Peeresses to be admitted whose Patents are made out in terms to cover their individual cases? The issue has been dealt with by a Committee after one day's inquiry, and without having one word of argument addressed to them in the opposite sense, and they have reached a conclusion which never occurred to one noble and learned Lord in this House at the time of the debate in which the Lord Chancellor, and two ex-Lord Chancellors made speeches which they could never have made if this interpretation had even occurred to them. That observation applies equally to the speech made by the Attorney-General in the House of Commons.

I therefore propose—and I am extremely sorry that explanations have had to be made in order to justify this Amendment—that this matter shall be referred back to the Committee of Privileges. I hope, if this Motion be carried, that neither the Committee nor its distinguished Chairman, my noble friend, Lord Donoughmore, will feel that the decision which your Lordships may take is the slightest reflection either upon them or upon him. I do, in fact, feel, in the conditions, about which I shall say nothing more, that my noble friend, Lord Donoughmore, had not all the legal assistance to which he was entitled in dealing with a purely technical matter. Of course, all your Lordships are entitled to sit upon the Committee of Privileges. I very much hope that as the matter is so extremely technical—if this course is agreeable to your Lordships—that when it is reheard by the Committee of Privileges, it will be agreeable to my noble friend Lord Donoughmore that as many of my legal colleagues as shall find it possible to attend may do so, and as many of your Lordships on the lay side as my noble friend may think proper to invite, unless your Lordships come forward as volunteers. In these circumstances, and dealing with a very grave matter in respect of which I feel some degree of personal responsibility, I beg to move.

Amendment moved— Leave out ("agreed to") and insert ("referred back to the Committee for Privileges for reconsideration.").—(The Lord Chancellor.)


My Lords, it is not an uncommon thing for a decision of a Committee to be discussed afterwards in Your Lordships' House, and for your Lordships to differ from the Committee. You are aware, no doubt, that the Committee for Privileges is not an ordinary Committee of le House. It is a Committee of which all members of the House are members. The familiar words of the Standing Orders are "all the Lords who shall come to any Committee for Privileges shall be of that Committee." The only further regulation is the one under which, by the custom of your Lordships' House in appointing the Committee for the last twenty or thirty years, your Lordships decide every session that the Committee shall "meet when and as often as they think proper," and that three Peers, designated Lords of Appeal, must always be present at the sitting of the Committee. Therefore, three Law Lords are a quorum, though the custom in the Committee, as long as I have known it, has been that six, seven and eight members sit, at least. The Law Lords, as a rule, are in a minority, though I hope that in no way depreciates from the value of our decisions.

I should tell your Lordships that although all members of the House are members of the Committee, in practice the Chairman of Committees invites certain laymen to come and sit, and he keeps in close touch with the Lord Chancellor of the day with a view of seeing that the quorum of Law Lords is present. In this case the normal procedure was followed, and the Committee was properly constituted, in accordance with practice, to hear the case. In fact, I should claim that it was exception ally well constituted, because, in addition to the three Law Lords, we had Lord Desart and Lord Chelmsford, who are experienced lawyers, Lord Askwith who has great administrative experience, and also Lord Hylton, who has special knowledge of the cases of the kind which come under our consideration. I am glad to note that the Lord Chancellor has no difficulty as regards the constitution of the Committee.

The proceedings have been printed and circulated and I will not, therefore, recall them to your memory. We were concerned with an unusual point. We were largely concerned with the construction of the Act of 1919, and, as the Lord Chancellor has told us, no argument of ally kind was submitted to us contrary to the claim winch was advanced on behalf of Lady Rhondda. I think it right to inform your Lordships that we reached our decision by seven votes to one. Your Lordships are aware that the Attorney-General is always present at our proceedings. He represents the Crown. He is there, I think, as an amicus curiœ, to give all the assistance he can to the Committee. I have sat on the Committee many times and in many cases, and your Lordships will allow me to express my admiration of and gratitude for the meticulous care with which the Crown case is always prepared and submitted to us. The smallest point that ought to be brought to our attention is so brought, and our work has been made very much easier.

The Amendment of the Lord Chancellor, as he has said, is not unprecedented. I believe there are three or four cases where it has been made, but I believe there is no case in which it has been carried. It has generally been defeated on a Division. The Lord Chancellor says there are arguments that have not been submitted to us. In fact, he used the phrase formidable case," and for that reason he desires that we should hear it again. I find it difficult to believe, with my experience of the way the Attorney-General has hitherto argued his case, that the "formidable case" was not present to the minds of the advisers of the Crown, when they made up their minds as to the attitude they intended to take in this case. I do not lay too much stress upon it, but I think that the case must have been present to their minds in its fullness and that they were not greatly impressed with the arguments they did not submit to us.

But we have it on the authority of the Lord Chancellor that there are arguments we have not yet heard. I am bound to say that the great bulk of the arguments he has used this afternoon were based upon the progress of a Bill through Parliament. I am only a humble layman and I have several times asked that things, when they happen during the progress of a Bill, should be considered of value after the Bill has received the Royal Assent and become an Act, and I have been overwhelmed when I have made that claim. I have been told that it was a most outrageous and unconstitutional thing. Even pledges given by Ministers as to how an Act is to be construed have been departed from, and it is with great delight, therefore, that I hear the Lord Chancellor attach such value to proceedings through Parliament of a particular Act. I hope we laymen will not forget this incident.

But, after all, the Lord Chancellor's position is not wholly based on Parliamentary history. If there are new arguments, and your Lordships are satisfied as to this, I do not think we who sit on the Committee for Privileges ought to object to hear them. I do not feel, therefore, that I can vote for the Amendment, but I do not feel that I can vote against it. I hope there will be no Division. If there is, and your Lordships decide that we must hear the case again, I will promise you to do my best to hear it properly. There are two things, however, I should like to do. I should like to reinforce what has been said by the Lord Chancellor—I am grateful to him for saying it—that if a larger Court is to hear this case I hope it will be a stronger Court of laymen as well as a stronger Court of Law Lords. After all the matter is one which concerns the whole of your Lordships' House; you are all equally interested.

Secondly, I should like to appeal to the Lord Chancellor on this point. I realise what has happened earlier this afternoon and deeply sympthise with him in the cause of his absence, and as the senior member of your Lordships' House whose name is in the Patent designate of those who have to sit on the Woolsack, I can promise him I will do anything I can to make his holiday easy. I would appeal to him, however, that the date on which we are to hear this case again may be soon in mercy to all the parties. It is not always easy to fix a date for the sitting of the Committee for Privileges. Law Lords are precious people and it is very difficult to get hold of them, even to get hold of three of them. There were a couple of cases for the Committee ready last year and it was impossible for us to take them because the Law Lords were too busy. It is obvious that this time it will be still more difficult to get the Law Lords because it will be understood that we are to have more than the usual number.


If the noble Lord will allow me to interrupt him, I do not think that difficulty will arise, because in a matter of this importance I shall think it proper to take steps to arrange, so far as it is in my power to do so, that neither the Judicial Committee nor your Lordships' House on its judicial side should meet on that day.


I am very much obliged to the noble and learned Viscount. That was the point on which I wished to be informed and it was for that reason I made my concluding remarks.


My Lords, I agree entirely with what has been said by the noble Earl, the Chairman of Committees. The Lord Chancellor has drawn attention to the fact that this is a question of very great importance and magnitude, and whether it is usual or not to review decisions of the Committee for Privileges, I do not think we should look very closely to precedents in this matter. It is right that your Lordships should be satisfied that the fullest possible consideration has been given. I have risen only because I think your Lordships might have the impression, from something that fell from my noble and learned friend, that the arguments in this matter and the way in which it was presented were somewhat scanty. They did not occupy a great time but they were pretty thorough.

I do not wish, and I should think it very wrong, to express the slightest opinion on the merits of the points which were discussed. I desire only to say that they were not quite the points of which we have heard so much this afternoon. Three questions came before the Committee. The first was whether a Peer who has a full Peerage is entitled as a right to his Writ of Summons, and it was resolved by the Committee that he was so entitled, because otherwise it would be within the power of the Government of the day to pack this House to create majorities which would pass its measures, and since the days of Charles I, if not earlier, this House has always resisted this view, so that it had become part of the Common Law of the land that a Peer, having obtained a full Peerage, was entitled to his Writ of Summons. That is a right of law and not a matter for discussion by your Lordships, a right of law of which this House is the proper tribunal to judge, and must judge according to the law. That was the first point. I am expressing no opinion upon it, though it may be that my noble friend will rebuke us for yielding unduly to that proposal.

The second point was that an Act had been passed that women might fulfil any public function, and the question was whether it was a public function to sit in this House. We have nothing to do with anything but the Act of Parliament. I entirely agree with my noble friend, the Chairman of Committees, on this point, and I own that. I listened with the smallest degree of misgiving at the moment to the suggestion which seemed to fall from the Lord Chancellor that the Committee for Privileges was not bound to consider Statutes according to the rule by which they are considered in Courts of Law. If my noble and learned friend comes to the Committee, as I hope he will, I think he will be the first to admit, because it is an absolutely settled decision of this House, that you have nothing whatever to do with what takes place in debates but you have to take the Act of Parliament and to say what the words mean according to the rules of construction which have long since been settled by the Courts. It did appear to me, from some citations from my noble friend on the Woolsack—not only to-day but during the discussion on the Bill—that he took a different view.


I had rather my noble and learned friend made admissions on his own behalf and not on mine.


I was referring to the words used in the debate by my noble and learned friend. We had no argument before us: we had no authorities cited. How could we do more than we did? That, of course, has a very close bearing upon the third proposition, which this Committee proceeded, wrongly or rightly, to consider, namely, whether, if it was a matter of right for a Peeress to sit in this House, the absence of any mention in the Patent of the statement of her right to do so could make the slightest difference; because otherwise that would be giving power to the Crown to control the members of this House and to determine whether they could sit or not. I have told your Lordships these things, not for the purpose of expressing the smallest opinion upon a matter of high constitutional and legal magnitude, and if I sit on that Committee I intend to keep my mind as completely open as I can, to sit as a Judge interpreting the matter only according to law, and to come to conclusions after that fuller argument which I understand we are to hear.

I wish to say one other thing. It seems to have been assumed that there was a somewhat perfunctory hearing of this case. The ease was opened very fully by Mr. Talbot, one of the most eminent Counsel at the Bar, and the Attorney-General did not address any speech or argument to us. It was obvious, however, to the members of that Committee, and it would have been obvious to my noble and learned friend if he had been there, that the Attorney-General was giving, and had given, very deep consideration to all the aspects of this matter, and when questions arose—not only I but my noble friends Lord Wrenbury and Lord Phillimore put questions to him—it was plain that the Attorney-General had fully considered the matter and was giving a considered decision on the, validity of the argument. He may have been right or he may have been wrong, but Lord Hewart of Bury is not a person who usually scamps his work, and my impression was that he far from stamped it on this occasion. All I wish to tell your Lordships is that it is not to be supposed that the hearing was in any way perfunctory. The question is one of the highest magnitude and importance, and it is only right that there should be a fuller argument before another and fuller Committee, and I am sure that, speaking for myself, I am expressing the opinion of other members who sat on that Committee when I say that we shall endeavour to do our best to approach the matter with unbiased minds and to listen to the arguments that are put before us.


My Lords, I will not occupy your time for more than one moment, but I should not like the occasion to pass without giving my most hearty support to the Amendment of the noble and learned Viscount on the Woolsack. This matter affects me somewhat closely because under the Representation of the People Bill, which was discussed in this House on January 17, 1918, I moved a subsection which was afterwards incorporated into the Act and is now on the Statute Book. Tile subsection ran as follows:— Any incapacity of a Peer to vote at an election arising from the status of a Peer shall not extend to Peeresses in their own right. The point of that Amendment was that it seemed to me rather bard that there should be any doubt whether Peeresses in their own right should be able to vote for a candidate for the House of Commons. It was taken for granted that she could not sit. I moved my Amendment to allow Peeresses in their own right to exercise the franchise because they could not sit. It is therefore implicitly stated in the terms of the Act that your Lordships took it for granted that she could not sit in Parliament, and that it was consequently right that she should have a vote. You would not have voted for that Amendment, and I certainly should not have moved it, unless that had been the case.

I see that later on in the debate Lord Plymouth said he would like it to be made quite certain that it did not give Peeresses in their own right any right to a seat in this House. There is a plain question, and my noble friend, Viscount Peel, said: "I can take away that horrible suspicion." Well, I should like to ask this: If this horrible suspicion, so far from being taken away, becomes a reality, and a Writ of Summons is moved and sent to a Peeress, she will be in this doubly-advantageous position, that according to this Act she, unlike all Peers, will not only have the power of sitting in the House of Lords but also the power of voting for a member of the House of Commons, which none of our noble selves can do. I venture to think that this is one of those legal points which have never been discussed before, but which do have a very great constitutional bearing, and I commend it to the attention of the Committee, which I hope will be set up again.


We raised that point and it was discussed at the end of our proceedings, as the noble Lord will see if he will look at the Report.


I desire to add only a very few words. I am very glad, of course, that this matter has been raised and I wish to say a few words on the point to which Lord Desborough has just referred. The only material words in the Statute are those contained in the first clause—"A person shall not be disqualified by sex or marriage from the exercise of any public function." The question was I hen whether "public function" included a right to sit in the House of Lords—to sit in Parliament. I should myself have been disposed to think that there was ground for the gravest consideration before coming to the conclusion that general words of that kind were intended to have effect upon the right to sit in Parliament. There was every reason for thinking that consideration would have been given to the question Whether having regard to the nature of the function, if function it be, other and wore specific words would not have been adopted for dealing with the right of women to sit in Parliament. That is a matter upon which, I think, very serious and grave consideration was required, but the matter, taking it merely on the Statute in the strictest and most legal way, does not rest there, by reason of the enactment to which Lord Desborough has just called attention.

In the Representation of the People Act, 1918, in subsection (5) of Clause 9, one finds these words—"Any incapacity of a Peer to vote at an election arising from the status of a Peer shall not extend to Peeresses in their own right." That, of course, was passed at a time when Peeresses Undoubtedly could not sit in Parliament, and the real observation on the clause is this: If the framers of the Act of 1919 contemplated giving women the right to sit in Parliament, is it conceivable that that clause would have been left unrepealed? The suggestion, as I understand it, is that it is an inadvertence, but it is impossible that it could have escaped attention. Surely the inference is that the framers of the Act, and Parliament in considering the Act, did not contemplate that it would have any such effect.

The question is whether this matter should be further considered. It is perfectly true, as the Lord Chairman has said, that the matter was touched upon in the proceedings before the Committee for Privileges, but I have referred to the Report of the Proceedings and I find that this is all that took place on this point. On page 28 of the Proceedings it will be found that the very able Counsel, my learned friend Mr. Talbot, towards the end of his address said this:— There is one small point to which it is my duty to call attention, because it is a case in which the enactment in a former Statute is to be explained by the law as it existed then, the enactment appearing to have been overlooked when this Act of 1919 was passed. If you refer to the Representation of the People Act, 1918, 7 and 8 of the King, chapter 64, which is the Act, which, among other things, gives the right to vote at elections of Members of the House of Commons, section 9, subsection (5) is in these words: 'Any incapacity of a peer to vote at an election arising from the status of a peer shall not extend to peeresses in their own right.' Of course, that was a perfectly just and proper enactment at the date at which it was made, because it would be hard if Peeresses were excluded from the House of Lords and not able to vote at elections for the House of Commons. A little later, the following argument appears:— LORD PHILLIMORE: In that Act giving power to women to vote for Members of Parliament, Peeresses, who would otherwise be the one excluded class, were given the same right as other women, because they would not at that moment be able to sit in the House of Lords. MR. TALBOT: That is so. LORD PHILLIMORE: Strictly speaking, if they have a right to vote for Members of Parliament, the effect of your argument would be that they would have both. MR. TALBOT: I assume it is a blot in the legislation. I do not know that I have any right to make admissions to bind anybody, but cannot see how any Peeress by descent could resist the contention that, when your Lordships had established their right to sit in the House of Lords, their right to vote at elections to the House of Commons should be taken away. VISCOUNT HALDANE: But were not both those Acts of a year earlier than the Act we are dealing with? MR. TALBOT: Certainly. VISCOUNT HALDANE: I suppose you say although Parliament was putting forth a foot, and was in a generous mood, still it was not stretching the words of the Act of 1918 to the full width. If the Act of 1919 had been passed originally, these two Acts might not have been necessary. MR. TALBOT: It is obvious that some ladies interested in the rights of their sex asked that this right of Peeresses should be given, or not excluded, in 1918, and that was perfectly right at the time. VISCOUNT HALDANE: Those were the days in which to them who asked should be given. That is all.


It is mentioned again on page 31.


Oh, yes. At the top of the page, Lord Phillimore puts a question to the Attorney-General— What do you say about the proposition with regard to women Peeresses having the right to vote for Members of the House of Commons? In your conception will this lady have a double right of sitting as a Peeress and voting for Members of the House of Commons? MR. ATTORNEY-GENERAL: My Lords, I should have thought not. My noble and learned friend, Lord Phillimore, was obviously struck by this point, the importance of which it is difficult to exaggerate, and it is perfectly plain surely that if those who were promoting the Bill intended that women should sit in Parliament they would have omitted the provision which is left standing, giving them the right to vote in elections to the House of Commons. That is a matter surely which imperatively calls for a great deal more consideration that it has received.

The Lord Chancellor has referred to the history of the Bill in Parliament, and I shall not go into that history again, nor shall I discuss the question how far it is admissible before the Committee for Privileges. But it is most certainly permissible for your Lordships to take it into consideration in deciding whether the case has been adequately considered, and to my mind it seems as clear as daylight that both Houses of Parliament passed this Bill under the impression that it did not affect the status of women as regards sitting in this House. I do not think any other conclusion is possible. What the legal effect of that may be is a matter for further consideration. After the Bill had become law it seems to have occurred to some ingenious mind that the words "public function" in Section 1 were enough, and that all the rest of the proceedings was nonsense. That is a matter which surely requires further consideration.

It is quite possible that by an accident, and contrary to the intention of both Houses, this Writ has been conferred—perfectly possible. And, if that is the law, of course it must be enforced. But I think it was not a matter to be treated at all lightly. I think that it is most unfortunate that the case was not argued for the Crown, and argued with an adequate sense of the difficult questions that arose upon it. The Lord Chancellor has given reasons for thinking that from the present Attorney-General the Committee may receive more assistance than it received front the very distinguished person who preceded him in that office. I hope that may be so. It is a very grave matter, and certainly not one to be treated as a matter of politics.

On Question, Amendment agreed to.

Then the original Motion, as amended, agreed to.