THE SINHA PEERAGE. (Hansard, 12 December 1935)

§ LORD STRICKLAND
My Lords, I rise to say very few words in opposition to this Motion because I am deeply and earnestly interested in the upholding of religious toleration throughout the 226 Empire. This Motion is regrettable inasmuch as there appears to be some overlapping of politics and religion. The wording of this Motion justifies any action or inaction of the competent authority. It raises a doubt and, therefore, the Committee for Privileges is the only authority that can deal with the facts which the noble Earl opposite has brought before your Lordships' House. It is greatly to be deprecated that there should be any attempt in this House to raise a discussion on points of law. These should exclusively be dealt with and be within the competence of the Committee for Privileges, and, if there is any possibility of such points arising, that is a very strong reason why a Notice such as this should be met by the previous question, if such a procedure were likely to be acceptable to your Lordships' House. I think no more need be said on the main question. As to the collateral question, those who would like to see in this House Peers from the overseas Empire, be they hereditary or be they nominated or otherwise elected, cannot help regretting a Motion of this kind. And I would add that, if these matters involve great expense before the Committee for Privileges, nevertheless the great importance of safeguarding the rights and privileges of this House is so deeply rooted that no attempt whatever should be made to deal with them otherwise than by the established procedure.

§ THE LORD CHANCELLOR
My Lords, the noble Lord who has put down this Question will forgive me if I say I think he has a little failed to appreciate the functions either of this Government or of this House with regard to matters to which he draws attention. It is no part of the duty or power of His Majesty's Government to determine whether any person shall sit in your Lordships' House, and it is in no way relevant to consider the faith of anybody who is a member of your Lordships' House. Therefore, when we are asked whether His Majesty's Government have had their attention drawn to the position of the person to whom the Motion refers and whether Peers who are not of the Christian faith are in the future to be debarred from sitting in this House, I have only to say that the question is not one which concerns His Majesty's 227 Government, and that neither now nor at any time has there been any question as to the faith of members of this House.
Perhaps, as the matter has been raised, I can quite shortly explain to your Lordships, what I think most of you already know, what is the position with regard to these matters. The question whether any person claiming by descent is entitled to take his seat in this House is a question of law to be determined by the appropriate tribunal. In the ordinary case of a person claiming by descent, that person produces to the Crown Office the evidence necessary to establish his right. The evidence in the ordinary case is generally mainly formal. It consists of affidavits and documents proving the possession of the Peerage by the person through whom the claimant claims, and the fact that the claimant is the legal male heir by descent from that person. Ordinarily the House entrusts the Lord Chancellor with the duty of seeing whether there is any unusual or difficult question which is raised by the claim. Where the evidence produced is such as to satisfy the Lord Chancellor, before whom the Crown Office place the case, he no doubt accepts the claim as in every respect good, and the Lord Chancellor directs a Writ to be issued.
But to use the words of the Companion to the Standing Orders: If the Lord Chancellor has any doubts on the subject he declines to issue the writ and he would be failing in his duty to this House if he were to act otherwise. His refusal to issue the Writ does not involve any decision that the claim is not good, but only involves the proposition that the claim is not so far beyond all doubt that the Lord Chancellor can direct the Writ to issue upon his own responsibility. And, if I may continue the quotation from the Companion to Standing Orders, when that happens the Peer accordingly petitions the Crown, and it is dealt with like other Peerage claims, which means to say, it goes to the Committee for Privileges of this House. I need hardly add that when the matter comes before the Committee for Privileges they have to decide simply and solely according to the law applicable, and have regard to no other consideration. It is 228 no part of their duty, nor is it within their competence, to inquire whether the claimant is a suitable or worthy person to be a member of your Lordships' House, or as to the circumstances under which the Peerage was granted. Their only duty is to determine whether the person claiming by descent comes within the language of the limitation to be found inscribed in the Letters Patent creating the Peerage.
The particular case to which the noble Earl refers is one which originally arose when I was first Lord Chancellor, but before I had an opportunity of deciding the case when it came before me, there was a change of Government and my noble and learned friend Lord Sankey succeeded me in office in 1929. I know from my own personal knowledge that my noble friend took very great pains in looking into the question. He was good enough to discuss it with me, and he knew I had had an opportunity of seeing the Papers before I resigned office. My noble and learned friend, after considering the matter, decided that it was not a case in which he could say that clearly the claimant had proved his case and, therefore, was not a case in which he could authorise the issue of a Writ. The responsibility for that decision rested solely, of course, upon my noble and learned friend, but I should like to say to your Lordships that if I had been in his place I should have felt bound to reach the same conclusion.
I do not wish to discuss too much the merits of the claim because, as your Lordships will appreciate from what I have said, the claimant may proceed with his Petition to the Crown. The case therefore may come before the Committee for Privileges, and I should not wish to say anything which might indicate a view or which might in any way prejudice him if he were to take that course. I was only indicating the nature of the difficulty which arises. The difficulty is this, that by English law a Peerage descends, subject to any special remainder (which is not in issue in this case) to the true heir male of the grantee begotten of such a union as is in English law regarded as a marrage. For this purpose a marriage in English law means the voluntary union for life of one man and one woman to the exclusion of all others. It does not mean that the union is to be celebrated by any particular rites 229 or to be celebrated between Christians. The question whether the union was in any particular case such a marriage must be determined by consideration of the circumstances as they were when the parties entered into the union and not by any subsequent event.
I understand, but this of course would have to be investigated, that at the time when the late Lord Sinha entered into his union with Lady Sinha both parties to the marriage were Hindus and the marriage took place according to Hindu rites. I understand, however, that at a later date both parties became members of a particular sect whose precepts prescribe monogamy, and of course the marriage was in fact monogamous in the sense that the late Lord Sinha never married or purported to marry anybody else; but the question is not whether he married anyone else but whether the form of union at the time it was entered into between the parties was one which precluded either of them from thereafter contracting a valid marriage with any other person. The matter has been explained more than once to the present claimant and to his legal advisers, and in 1929 my predecessor caused a letter to be written which perhaps I may read to your Lordships.
This is the letter which the noble and learned Viscount, Lard Sankey, caused to be written by the Permanent Secretary, Sir Claud Schuster: Dear Lord Sinha, The last letter yhich I received from you was dated the 5th August, and I fear that you may think that I have been dilatory in replying to it. I am sure, however, that you will understand that in a matter of such great importance it has been necessary that the situation should be considered from every point of view, and that the Lord Chancellor should have before him and examine every possible source of information and argument. Having given his most careful consideration to the whole matter—as he believes from every point of view—the Lord Chancellor wishes me now to say that he finds himself unable on his own motion to direct the issue of a Writ to you. Having in mind the eminent services rendered by your father and taking into account also the inconvenience which this decision must necessarily entail upon yourself, the Lord Chancellor has reached it only with great reluctance. In his view, however, your application raises questions which must, in their determination, create a precedent. The matters 230 arising are, as it appears to him, of first impression. Ho does not think that it would be in accordance with his duty in the discharge of the function committed to him by the House of Lords himself to decide these matters. In his judgment, they should form the subject of consideration by the Committee of Privileges and of decision on the report of the Committee by the House. The Lord Chancellor wishes me to make it clear that in announcing this decision he is in no way prejudging the real question at issue or expressing in any way whatever any opinion upon it. All he is now directing me to announce is that, in his judgment, the matter is not one for his decision, regard being had to the limits of the jurisdiction commtted to him. In these circumstances, he desires me to acid that if there is any assistance which can be rendered to you by any of his officers, they are at your disposal, and upon his instructions I shall myself be very glad to give you any help that lies in my power. That letter was written in 1929, but the claimant has not at present, so far as I know, presented a Petition to the Crown, and therefore there has been no opportunity of referring it to the Committee for Privileges. It is open to him to do so if he is so advised at any time, and the matter will then be judicially determined by the Committee for Privileges and ultimately by your Lordships' House.
In determining it—I want once more to stress this fact—the only question which can be considered either by the Committee or by the House is the question of whether or not according to English law the present claimant brings himself within the limitations contained in the Letters Patent creating the Peerage as a person designated by those Letters Patent. That depends on a question the nature of which I have indicated to your Lordships. I hope that with that explanation the noble Earl will realise that the matter really is not one which rests within the competence of His Majesty's Government, and, still more, I hope he will realise that no question as to the religious faith of any claimant can enter into the problem at all. There have in fact been persons of various religious faiths who have sat in your Lordships' House. There have been Christians and Jews, Mahomedans, Hindus and Atheists. It makes no difference. The question is simply, aye or no, does the person who claims prove that he is a person designated in the Letters Patent granting the Peerage.

§ THE SECRETARY OF STATE FOR INDIA (THE MARQUESS OF ZETLAND)
My Lords, I feel that I cannot allow a discussion on this subject to pass with my complete silence. I should like to say a few words not so much as Secretary of State for India but in my private capacity. I should like to express my profound sympathy with the present Lord Sinha in the position in which he finds himself, both on account of my respect for the present Lord Sinha and still more on account of my respect and indeed my affection for the memory of his father, the late Lord Sinha. The late Lord Sinha was a member of my own Government in Bengal just before the time when a Peerage was conferred upon him. It was natural in those circumstances that the present Lord Sinha should have consulted me as to what possibility there might be of altering the position as it has been explained to your Lordships by the noble and learned Viscount the Lord Chancellor. I naturally inquired carefully into the case and found myself with the best will in the world up against the existing law of the land as it has been explained by the Lord Chancellor this afternoon.
The marriage of the late Lord Sinha was certainly in intention and in fact a monogamous marriage. The whole of the late Lord Sinha's ideals lay in that direction. But it is not true to say, as has been sometimes suggested, that at the time of his marriage he was a member of the Brahmo-Samaj sect, which is a monogamous community. At the time of his marriage he was a Hindu, and his marriage was celebrated in accordance with Hindu rites. In those circumstances he does not come within the definition required in the case of a monogamous marriage in this country. That being so, I have had to advise Lord Sinha that there appears to be no means of altering the position, and that the only course open to him would be to petition His Majesty with a view to the matter being brought before the Committee for Privileges. As to whether he should pursue that course or not I have necessarily had to decline to give advice. That must be a matter purely for his own legal advisers.
But I did wish to make clear how profoundly I sympathise with him in the position in which he finds himself, for I 232 am quite satisfied that when the Peerage was conferred upon the late Lord Sinha, no suggestion of this difficulty arising was ever present in the minds of those who were responsible for submitting the late Lord Sinha's name to His Majesty for the conferment of a Peerage. I think all of us, therefore, in these circumstances, and especially in view of the services of the late Lord Sinha which were recognised by the conferment of the Peerage, must sympathise very profoundly with the position which has been found to exist, and offer our sympathy both to him and to his mother, the widow of the late Lord Sinha.

THE EARL OF KINNOULL
My Lords, I am very pleased to have heard the speech of the noble Marquess opposite, which was very sympathetic. In thanking the noble Viscount on the Woolsack for his reply, I should like to say that I quite appreciate the difficulty and am entirely satisfied with the noble Viscount's answer. I beg leave to withdraw my Motion.