HL Deb 24 March 1937 vol 104 cc783-803

LORD STRICKLAND rose to call attention to the law in reference to Life Peerages and to ask His Majesty's Government whether under the law as it stands steps may be taken that would enable Prime Ministers from the Dominions to sit and speak in the House of Lords after the precedent established in South Africa by which Ministers speak in a House to which they do not belong; and to move for Papers.

The noble Lord said: My Lords, this Motion is urgent because, in view of the approaching Coronation, Prime Ministers of the Dominions beyond the seas are coming to the heart of the Empire. In connection with the crisis last December, which affected the most important relations between the Crown and the Dominions, it became evident that, according to a correct interpretation of the Statute of Westminster of 1931, the Prime Ministers of the Dominions are placed on a plane of equality in deciding matters of the most vital importance. The way in which that crisis was solved reflected the greatest credit, not only on the Prime Minister of England, but also on the Prime Ministers of the Dominions. Admiration for that statesmanship is not confined to His Majesty's subjects within the Empire but is shared by the whole English-speaking world. If, however, it should happen that His Majesty, in his sole discretion, were to desire to consider reasons for conferring the highest honours on any of those Prime Ministers, His Majesty would be faced with the great difficulty that in many of the Dominions overseas there is a deep-rooted public opinion that hereditary honours should not be accepted.

Therefore, this problem is presented, that when it is an occasion of considering the bestowal of the highest honours, the Prime Ministers who, under the Statute of Westminster, directly advise the Crown, have to be divided into two groups—one group debarred from accepting Peerages and another group not so debarred. I use the word "debarred" because we have to face realities in this democratic age. Any Prime Minister overseas who is in office with a large majority, in accepting an Hereditary Peerage, would realise that that majority was going to be diminished, and if the majority by which he held office was a small one he would naturally apprehend that it might disappear altogether. It is irreconcilable with the spirit of the Statute of Westminster and the present structure of the Empire that such lines of cleavage and such departure from equality of opportunity should subsist. The obvious remedy would be the conferring of Life Peerages. That is the main reason why I ask your Lordships to agree with the view that this Motion is urgent.

To pass to the legal aspect of the question, your Lordships' House in 1856 dealt with a Resolution of the Committee for Privileges on what is known as the Wensleydale case. A Peerage had been created in favour of Sir James Parke, one of the Lords Justices, and the words of limitation used were unusual. A Peerage was granted for life without any remainder in tail. Up to that time legal authorities were almost unanimous and most weighty in holding the view that under the Prerogative of the Crown there was no bar to the creation of Life Peerages, but there was a hostile majority in your Lordships' House at a time when such majorities could make and unmake Ministries. May I digress for a moment to say that that time has passed! I think, therefore, it is now of very small importance what may be the numbers attached to any Party in this House. To-day it is the argument that weighs; it is not a question of counting noses. But in 1856 a strong, determined majority resolved seriously to embarrass the Government, and Lord Lyndhurst, who had several times been Lord Chancellor and who was outstanding for his ability, his tact and his rhetoric, was selected to submit to your Lordships' House the case against the validity of the grant to Sir James Parke.

It is thrilling to read his speech on that occasion—an unrivalled example of special pleading, going close to the limits of logic and of fact, and courageous in arriving at a preconceived conclusion. He destroyed one by one every possible precedent ancient and less ancient, that might be cited against it. In doing so he made assertions as to fact in a manner which made other noble Lords complain that they had no time or opportunity to check them. He resorted to an argument ad hominem. He quoted Lord Justice Coke, whose authority was outstanding, in favour of the validity of Life Peerages. Lord Lyndhurst, in his speech, attacked the private character of Lord Coke and belittled his legal knowledge, but at the end of his speech Lord Lyndhurst gave the legal argument away. He had throughout carefully tried to avoid giving opinions on points of law, and at the end of the speech he admitted that there was recent precedent, which he could not challenge, for the grant of Peerages for life that were supported by a remainder in tail. He admitted that those creations were valid.

Now, for practical purpose, that reduced the controversy to a conveyancer's quibble—nothing better than that—because it is obvious that it was only necessary to re-draft or to draft a Patent so as to insert an impossible, an inapplicable remainder in tail, of which there are many possible versions, and that then Life Peerages could be created with the understanding that they would go no further than the first holder of the title. That seems an evasion, but in the last year of the reign of George IV an Act of Parliament had been passed enacting that illusory appointments were to be valid not only in Common Law but also in equity, and after the passing of that Bill you could have a remainder in tail in favour of children to be begotten from some impossible marriage, in some impossible place such as the North Pole. So much for Lord Lyndhurst's speech on that occasion—the occasion when the question was referred for a Report by the Committee for Privileges. The Committee were asked to report upon the Patent, but the Committee reported also on a Writ of Summons, which they were not asked to do. If the Patent had been declared invalid and the Writ had been allowed to stand, quite naturally Sir James Parke might have claimed the creation of a Peerage by Writ, and so the Committee for Privileges took it upon themselves to go beyond the reference and to declare both the Letters Patent and the Writ invalid. That Report was confirmed by your Lordships' House. Two protests were signed by Lords who sat on the Committee for Privileges and dissented from the majority. Those dissenting protests are printed with the debates on that occasion. They are in concise and commanding language, and nobody can read them without coming to the conclusion that the decision of the majority of your Lordships' House on that occasion was a political decision, and not a decision on a point of law.

That is all that has happened. There will be great sympathy with those who, anticipating the division that has arisen in connection with the approaching Coronation, ask for a review of that, Resolution of your Lordships' House, desiring that you should undo the complication that was caused by the passing of the Resolution of 1856. Unfortunately that way out may seem to lead more deeply into a thick wood. Resolutions, which after the end of the Session do not constitute a decision between Parties or are not embodied in a subsequent Act of Parliament, have very little value after a Prorogation. On the other hand, ever since the passing of that Resolution no Life Peerages have been created, except in so far as certain Lords of Parliament have been made members of your Lordships' House ex officio. That was done first by a Bill of Mr. Disraeli's, the Appellate Jurisdiction Act of 1876. That Act did not confer the full privilege of Peerage, and afterwards, when the political passions which brought about the complication on the Wensleydale Peerage case had abated and a large volume of opinion in both Houses had arisen in favour of the grant of Life Peerages, it became evident that the Act of 1876 was too cautious if it was not actually unjust to the Law Lords. Consequently amending Acts were passed which gave to the ex officio Law Lords all the privileges of Peerage for the period of their natural lives. The wording of several Acts of Parliament provided enactments which would have been quite unnecessary and which would have been wanting in justification unless it was accepted by your Lordships' House that a period had elapsed which since the Wensleydale case was sufficient to alter the previously accepted Common Law because of the general acceptance by Parliamentary authority and judicial authority of the Wensleydale decision.

Moreover, several Bills that assumed the authority of the Wensleydale decision, have been proposed in this House with the most authoritative political and legal support, and even with the achieve- ment in support of large majorities on the Second Reading, in favour of the grant of Life Peerages. Whether that series of facts and the absence of any outstanding contradiction in Parliament can constitute an alteration of the Common Law is a matter widely open to opinion. I hold with those who maintain that there can be no augmentation or diminution of the Royal Prerogative except by an Act of Parliament proposed avowedly to change the law; but I could not criticise with any confidence those who may hold that the period of three generations that has elapsed since the Wensleydale case and the expression of opinion that has come to be accepted are of sufficient weight to enable the Law Officers of the Crown, if they so desire, to report to His Majesty the King that the action in connection with the Wensleydale case was mistaken or otherwise.

When the margin for differences on points of law is very narrow we have to remember that "Lex est voluntas habentis jus imperandi," namely, the law is the wish of whoever has the power to order. Under the present development of our democratic institutions that power undoubtedly rests with the opinion of the Law Officers of the Crown for the time being. If those Law Officers change, opinion may be different. There are those who strongly support the view that the Prerogative is unshaken and unshakeable as vested in the Crown to create honours and Peerages of any description either on the initiative of the King himself or on the advice of His Ministers or of the Prime Ministers of the Dominions, or, if it is a question of conferring the highest honour on a Prime Minister, then on the advice to the Crown of that Prime Minister's colleagues. Nevertheless those conversant with the way of government and the working of administration must realise that His Majesty's Government is not likely to depart from the opinion that has become crystallised since the Wensleydale case, unless the Crown has the concurrence of Parliament. The obvious solution is the passing without any delay of a one-clause Act of Parliament declaring the interpretation of Common Law that has been adopted as a consequence of the Wensleydale case non sequitur.

With majorities of hundreds at the disposal of the Government in both Houses of Parliament such a Bill might be passed in five minutes in each House. The Whips have so much power, the Party machine is so magnificently and efficiently organised to-day, that it would he even possible to create an understanding that there should be little or no debate. The Malta Constitution Act of 1932 was a Bill that went through the House of Commons in less than five minutes. To say that "there is no time" will persuade nobody. But on the hypothesis that it is difficult to find time, may I ask your Lordships to reflect carefully on the stage to which in our Commonwealth of Nations our democratic development has now arrived? Even the Conservative Party—sometimes called, for purposes of historical parallel, "the Tory Party"—only yesterday declared that one of its main objectives is the maintenance of constitutional democracy. Democracy as practised in Great Britain and in all the Dominions depends on the working of the Party system. The Party system depends on patronage, and patronage does not depend merely on conferring paid offices but also on rewarding by honours great and less great work, and science and services that cannot be paid for—unpaid eminent work.

We may recall two cases of the acceptance of Hereditary Peerages in recent times overseas. Sir John Forrest, many times Prime Minister of Western Australia afterwards one of the founders of the Federation of Australia, Treasurer of the Commonwealth and frequently acting Prime Minister, accepted an Hereditary Peerage. Sir Henry de Villiers, Chief Justice of South Africa, accepted service on the Judicial Committee of His Majesty's Privy Council; he became Lord de Villiers and was pre-eminent for his knowledge of the law, especially of Roman and Dutch law. There has been a feeling in some of the Colonies that even knighthoods should not be accepted. That, however, is a passing wave; it cannot he permanent, and it is not in the interests of constitutional democracy to endeavour to carry on government without admitting and recognising the necessity of taking steps to co-ordinate the distribution of honours with due allegiance and regard for the Prerogative of His Majesty the King, who is the supreme centre and authority in the British Commonwealth of Nations.

Orders of Knighthood can be created in any number to carry with them an honourable appellation. There was nothing in law to prevent former Kings from creating Dukedoms and Marquessates, which were added to Baronies and Earldoms in comparatively recent times. There is nothing in law to prevent the King creating a new order of Life Peers. There is nothing in law to prevent the King from creating Grand Dukes—not that this is at all likely; but such is the law applicable to the grant of Life Peerages as a new order. There is nothing, as far as I can see, if it is admitted that the Prerogative cannot be altered by recent custom, to prevent a resumption of the creation of Life Peers by executive action, other than a doubt as to whether public opinion would accept it.

Such are the two courses that have been indicated as a "way out." There is another suggestion in the Motion which I have had the honour to submit to your Lordships after the precedent inserted by the draftsmen of the Constitution of the Union of South Africa, the first written Constitution which provides that Ministers may sit and speak in a House other than that to which they have been elected. It has been pointed out in a very illuminating letter that appears this morning in that great newspaper The Times, by a very learned professor of history and constitutional law, that in your Lordships' House time after time, and even so recently as the reign of Queen Anne, the Lord Chancellor has sat and spoken when he has not been a Peer. Many officers of State have also received Writs, "Writs of Assistance" entitling them to sit and speak in your Lordships' House; but the enjoining of their presence here with the duty of speaking has not made them Peers. There is a fiction that, when the Lord Chancellor is not a Peer, the Woolsack is outside and not inside the House. That fiction is preserved even to-day. When the noble Viscount, who is the greatest authority in England on points of law, gives your Lordships' House the advantage of hearing his opinion, he at times sidesteps away from the Woolsack, which by a fiction is not in the House; or he comes and takes his place at the Ministerial Bench. That happened more than once during the discussions on the Government of India Bill.

LORD TEMPLEMORE

When the House was in Committee.

LORD STRICKLAND

But that Committee is of the House. The rules of your Lordships' House as to where those inside this Chamber, be they Peers or not, are to sit, and as to who are to speak, are embodied in Standing Order No. VIII. That Order does not derive its authority from any law but solely from a Resolution of your Lordships' House, which cart be altered by another Resolution at any time. When a Peeress has to come and give evidence here, according to Erskine May she is provided with a chair by the Table which is in front of the Cross Benches; and when the Lord Mayor of London has to give evidence here he is provided with a chair inside the Bar on the other side of the Cross Benches.

The precedents to which I have referred as having been brought to public notice in the Press this morning by a very high authority are by no means exhaustive. When the Commons sat in the same Chamber with the Lords, that is to say up to the Parliament of 1290, seats were placed for distinguished visitors from Ireland, Scotland and Wales and the equivalent of Writs of Assistance were issued to three or four commoners to be with the Lords and speak for the burgesses and the people who were allowed to go to the House to ask for redress for their grievances. On one occasion the commoners spoke too much and too loudly, and they were told by the Lords to withdraw into the Sacristy of St. Stephen's Church and there to make up their minds as to what their Speaker was to put forward in Parliament as any grievance. It was in 1290 that for the first time the representatives of the commoners sat separately from the Lords. In those days it was more difficult for a Knight of the Shire, and it took more time then to come to London from the North of England than is required to-day to come here flying from the overseas Dominions. The Knights of the Shire were provided with an escort at the expense of the county and sixpence a day was granted for expenses together with an extra for the Knight of a half-penny a day "for fat," which was no doubt a substitute for butter. My Westmorland home is still the place whence in 1290 a Knight of the Shire came to sit in Parliament—a Sir William de Strickland.

The suggestion in this Motion of action by Resolution is made deliberately as a step, and as an expedient to eliminate the difficulties as to legislation and to show that, if your Lordships' House were to decide to alter Standing Order No. VIII, subsequent legislation would be inevitable to facilitate the creation of Life Peerages. Those who are concerned about this question of adding to your Lordships' House opportunities to be more useful—I prefer not to use the word "reform," it is an aggressive word—may agree to take action gradually by practical steps. May I ask what is the use of saying we will have no reform until everything that can be reformed is dealt with simultaneously? Reforms require sanctions. Sanctions mean that hundreds of the members of your Lordships' House who but seldom come here will have sanctions applied to exclude them. For such a purpose Second Readings of Bills may be passed, but when it should come to a Third Reading those to whom sanctions are about to be applied will not be precluded from attending to defeat "reform." It is no good talking about "reform" unless the word is used with a determination and with a majority to do something substantial.

I may be allowed to make an appeal to the noble Lord who leads the Opposition in this House as the Leader of the Labour Party. In a speech in a previous debate of this nature he said, with his unrivalled wit, and rhetoric and logic, that, to get over the difficulty of having a House dominated exclusively by one Party, there should be only a dozen Lords on either side of the House. Then he told your Lordships, we would hear rhetoric and listen to logic and be impressed by the progressive proposals of the Labour Party, and that the country would ring with what the noble Lord would say. If that is still in the mind of the noble Lord opposite, Lord Snell, why not support the introduction here of Prime Ministers of the Dominions overseas? The noble Lord would then hear logic and wit and progressive suggestions, perhaps equal to his own. I feel that great service would be done to the Crown and to the people of the Dominions by a correct interpretation of the Statute of Westminster of 1931. If this debate were adjourned, and if the Law Officers of the Crown were asked to report what is their present opinion as to the import of the Resolution of your Lordships' House in 1856, substantial results might be achieved.

We would then know better whether His Majesty's Government would cease to say "We have no time," and whether they would find time to put a short Bill through both Houses. Finally we should know whether His Majesty's Government would realise and admit that before the last General Election, when a composite Government was returned, they were driven by political exigencies to have a vague programme, so as not to tread on the toes of any of the factors composing that Government, when appealing to the country for a confirmation of power. Constitutional democracy has to be kept going occasionally by what is known as log-rolling, but the solution of that trouble was taken from the path of His Majesty's Government by the other side. Electors in England waited and waited for an Election programme on the question of the House of Lords. They had to wait a long time, and at last a programme was issued by the opponents of the Government which was not very intelligible or precise except upon one point—the destruction of the House of Lords. That programme was defeated by the electors. There is such a thing in law and politics as "a negative mandate," and I put it to your Lordships that there is a negative mandate issuing from the result of the last General Election, which sweeps aside the blocking by the theory of mandate, a theory which is repugnant to freedom of speech and judgment in the House of Lords. I beg to move.

LORD SNELL

My Lords, as the matter appears on the Paper of your Lordships' House, this would appear to me primarily a legal question, but as presented to your Lordships by the noble Lord, Lord Strickland, one would require to be an erudite historian to take part in the discussion with any intelligence, and it may be presumptuous for a mere politician to act as a "gate-crasher" into a discussion that belongs to the lawyers and to the historians. Nevertheless, this matter has some wider implications, and I venture to add a timid word to the discussion which has been intro- duced. I understand that the Lord Chancellor will reply on the part of the Government. We are all delighted to know that, and feel that it is some assurance of his restoration to health among us.

This Motion brings before us once again a recurrent and altogether melancholy subject. In your Lordships' House we are constantly protesting that we are sick almost unto death, that we do not want to die, that we are the most commendable Second Chamber in the world, and that something should really be done to revivify us and to keep us alive. One's first reflection about all that is that no one except ourselves seems to be concerned about it and, judging by the number of your Lordships who are present this afternoon, the enthusiasm for the introduction of new life into your Lordships' House is not obvious. The Government, I am bound to say, seem to be most ungrateful in the way in which they receive these recurrent petitions to them to do something. This House is their very obedient and consistent servant, and yet their answer to all these appeals may be put in a paraphrase of Arthur Dough's words—We will not kill, but we need not strive officiously to keep your Lordships alive. And that is the attitude of the Government in this matter. All of us have our schemes for dealing with your Lordships' House. I have one of my own, but on the eve of the Easter festivities I have not the heart to depress your Lordships by even mentioning it. But I would say that it would be quick, and it would be a final, if not an unpainful, end of our anxieties about our future.

Let us look at this question of Life Peerages. As I see it, it is the same kind of device that a sick patient adopts who wants to try everything. In this case it is a question of blood transfusion, if only we could get the proper subjects to strengthen us. But, when that has been allowed for, there is something, indeed a good deal, to be said for inviting men who have served the country well, who have achieved distinction in law, in commerce and in other spheres, to come to your Lordships' House so that their help and advice may be continued to the advantage of their country. That appeals to all of us, and appeals to me intensely. But if the idea is to strengthen your Lordships' House I am not sure that you are going to do it by that means. I hope I shall offend no one here if I say that what your Lordships' House needs is not necessarily an addition of exhausted men who have already done their full share of public service, but rather the help of men who are in their prime, and whose power has yet to be given to the State. If the question of Life Peerages is a device to delay, or to postpone, reform of your Lordships' House, then it very definitely is not a device that we on this side of the House could support.

In regard to the particular scheme put forward by the noble Lord, one has to speak about it with all reticence. To reduce it to its baldest terms, it would appear to be that we are not in any case to—shall I say interfere—no, participate in the government of the Dominions, but the Dominions are to be allowed to participate in the government of this country. That is a matter which would require a great deal more thought before it could be adopted with any sense of security. All of us on all sides of the House want the relationships between all parts of the Empire and our own country and Parliament to grow ever closer and more cordial and there is not one of the Prime Ministers of the Dominions who would not honour this House by being a member of it. Let us admit that fully. But we could only participate in such a scheme if it were part of a far wider scheme of reform of your Lordships' House. We do not feel that this is a matter that can be done hastily, that it can be done piecemeal. Therefore, because of that, we feel that it cannot be done at all in this form. So far as the political, apart from the legal, aspect is concerned, that must be our answer to the plea of the noble Lord. We do not consider that Life Peerages are a solution of the problem, and we cannot accept them as such.

THE LORD CHANCELLOR (VISCOUNT HAILSHAM)

My Lords, the noble Lord who has just sat down correctly stated that he regarded this Motion as primarily a question of law. I think so too. I thought until I heard the noble mover of the Motion make his speech that he had deliberately framed his Motion in such a way as to exclude the question of reform of the House of Lords and to base his appeal entirely upon the existing laws—the law, as he says, as it stands. I have no authority from the Government to make any statement at the present moment about House of Lords reform. I have had more than one opportunity of stating the views of His Majesty's Government in this House, both on the Bill that my noble friend Lord Salisbury introduced, and again on the Motion for leave to introduce Lord Rockley's Bill more recently, and this occasion does not seem to me to be at all appropriate for dealing with the question of House of Lords reform.

The question which we are asked to consider is a much narrower one—whether under the law as it stands steps should be taken to enable Prime Ministers of the Dominions to sit and speak here. From that point of view there is no need to discuss what my noble friend has suggested—the possibility of passing a Bill through all its stages in both Houses in five minutes under the threat of Whips and the like. I am bound to say that I think my noble friend exaggerates the influence of the Whips, at any rate in your Lordships' House, to a very considerable degree. But, however that may be, I do not at this moment wish to discuss whether it is possible to amend the law. I only want, if I can, briefly to answer my noble friend in his question as to whether it is possible to do what he asks under the law as it stands.

Although I have listened to my noble friend with great attention and I have the respect for him that he deserves as a constitutional lawyer, I am bound to say the answer in my view is "No." I do not believe that under the law as it stands steps may be taken that would enable Prime Ministers from the Dominions to sit and speak in your Lordships' House. My noble friend referred to the fact that the Lord Chancellor sat, although he was not a member of this House, and that he spoke sometimes from the position I now occupy and at other times from the Front Government Bench. In fact, as your Lordships are aware, the Lord Chancellor is not necessarily a member of the House of Lords at all. I myself sat as Lord Chancellor—not in the reign of Queen Anne but more recently, when I was Sir Douglas Hogg, and I very soon afterwards had the honour and privilege of becoming a member of your Lordships' House.

The Lord Chancellor, as such, sits on the Woolsack, and the Judges and the Attorney-General and Solicitor-General who are to-day summoned to attend your Lordships' House, if ever they did attend, would sit again on these Woolsacks so as to be outside the House. When I address your Lordships' House, then I move into the House, as I am doing at this moment, and I speak from this place so that I am in my place in the House. In order to address your Lordships in Committee, I am only on the Front Bench, not by virtue of my position as Lord Chancellor, but by virtue of my position as a member of the House. If he were not a member of the House, the Lord Chancellor would have no right to sit in Committee on the Front Bench or in any other part of the House. I have the honour to be permitted to address your Lordships' House, not by virtue of the fact that I am Lord Chancellor, but simply and solely by virtue of the fact that I am a Peer. I make that brief explanation because possibly there may be some misunderstanding as the result of what my noble friend said.

My noble friend referred at considerable length and in great detail to the Wensleydale case. I certainly believe that the Wensleydale case was rightly decided. Whether or not I am right in that opinion—I gather that my noble friend does not agree with me—I do not think matters from the point of view we are now discussing. It is quite true that under the early Kings of this country a man was summoned to Parliament quite frequently to sit in a single Parliament, sometimes possibly to sit for life, and that, as I think, did not at the time give him any hereditary right at all. But, fortunately or unfortunately, by a much later invention of the Heralds, which afterwords had the imprimatur of Lord Coke, and was subsequently adopted by the Committee for Privileges, it was held that when a Writ of Summons was issued to a man, and he could prove he sat after 1295 in Parliament, thereby there was necessarily created an hereditary dignity in himself and his heirs generally.

I imagine that any of the Kings who issued the Writ at the time would have been immensely astonished and would have somewhat resented anything of the kind. In fact, I have looked up something of what happened in those early days. In the reign of Edward I there were summoned in the Parliament of 1295 forty-one Barons; in that of 1300, ninety-nine Barons. In 1321 Edward II summoned ninety Barons; in 1322 he summoned fifty-two Barons. In 1333 Edward III summoned sixty-three Barons; in 1346 he summoned only thirty; and in 1347 he summoned fifty-six. That fluctuation was not accounted for by an immense or unexplained mortality in the Peerage of the day. It simply illustrates the fact that in those days a man who was summoned was summoned by the King to attend him in Parliament when he was a person of the class to whom the King had a right to address a summons—namely, he was a person who held a tenure by Barony.

LORD STRABOLGI

Is the difference in numbers not accounted for by the Scottish Peers?

The LORD CHANCELLOR

I do not think that accounts for the difference. In 1321, ninety; in 1322, fifty-two—a drop not an increase—and in 1333, sixty-three, and 1346, thirty—again a drop of more than half. I do not think that could be accounted for by the Scottish Peers if they ever were invited to come to Westminster, although I gravely doubt the historical fact that Scottish Peers were summoned in the reigns of Edward II and Edward III to sit in the Great Council.

Lord STRABOLGI

If I may interrupt the noble and learned Viscount for a moment, this is a very interesting point and it affects me personally. The first attempt at the union of England and Scotland led to a Parliament in York to which Scottish nobles were summoned as Barons of England, and perhaps the later reconquest of Scotland by the Nationalists of that day is one of the explanations of the falling off in numbers in subsequent Parliaments of the Edwards to which the Lord Chancellor has drawn attention.

The LORD CHANCELLOR

I do not think that the fluctuation can be accounted for by anything of that kind. I quite agree that it has been now established by the decision of a series of Committees for Privileges that the Writ of Summons in those days, followed by a seat in Parliament, did create an hereditary dignity to which we owe, among other things, the privilege of the noble Lord's attendance in this House; but I do not admit that that was anything but a fiction which was invented in the fifteenth or sixteenth century, and confirmed in the seventeenth century, and accepted by your Lordships' House at the beginning of the nineteenth century. I think myself that the mere fact that that was accepted in the nineteenth century, or whenever it was, did in itself do a great deal to do away with the possibility of accepting the theory that a Sovereign could, by Prerogative, summon a Peer to Parliament for life because once you establish that, when he had summoned somebody to Parliament, he thereby conferred on him an hereditary dignity, that almost necessarily connotes that he cannot summon a person to Parliament for life without creating the dignity of hereditary power.

Your Lordships will find a very amusing discussion by Professor Pollard in his book, "The Evolution of Parliament," in the chapter which he designates "The Fiction of the Peerage." I should like to cite this because I think it is relevant: It is the law of the land that any one who proves himself the heir of a magnate of 1295 is entitled to a Peerage. Not even the Crown can debar him from it; and the Court is bound to enforce that law. It is also apparently bound to do far greater violence to historical truth, to interpret historic facts of the fourteenth century in the light of a law that was not evolved till the seventeenth, and to assume that when Edward I or Edward II summoned a man by special Writ to a Parliament he intended to create an Hereditary Peerage. From the point of view of the Court it is entirely irrelevant to prove that Edward I would not have known what the phrase Hereditary Peerage' meant, that he never created or intended to create one in his life, that scores of Barons summoned by special Writ to one Parliament were not summoned again, and that no one for more than a century after Edward I's death dreamt of claiming a right to a Peerage at all. I believe that is quite an accurate statement of historical fact, and shows how an original claim provided by Writ really rests.

In fact in the fourteenth century—I think it was 1337—it became the practice, and I think that was the first time it became the practice, to create Peerages by Patent, which were descendible to a man's heir male, and from that time it gradually became the law of the land that a Peerage must always be created by Patent and must always be created not in arbitrary descent but only for descent to a man's heirs. My noble friend Lord Strickland suggested that you could quite well get Life Peers if you created a Peerage with an impossible entail. I think he gave one or two fantastic instances of such an entail. All I can say about that is that I think it is contrary to what I believe to be well established Peerage law. Thus in the Wilte's Peerage case Lord Chelmsford said: The question then presents itself in the simplest and clearest manner, whether it is competent to the Crown to give to a dignity a descendible quality unknown to the law, and thereby to introduce a new species of inheritance and succession? The question put in this way seems to answer itself. The Crown can have no such power unless there is something so peculiar in a dignity, so entirely within the province of the Crown to mould at its pleasure, that a limitation void as to every other subject of grant is good and valid in the creation of a Peerage. No one has pushed the argument to this extravagant length, and yet, if any one limitation which the law prohibits in the grant of property may be applied by the Crown to the grant of a dignity, it is difficult to see how you can stop short of holding that there is no restriction upon the Crown's establishing any order of succession to a dignity, however novel and extraordinary. Again, in the Buckhurst Peerage case, Lord Cairns, then Lord Chancellor, said: It is the well established and constitutional law of the country that a Peerage, partaking of the qualities of real estate, must be made in its limitation by the Crown, so far as it is descendible, descendible in a course known to the law, and that in the descent of Peerages there cannot be introduced variations or alterations in the ordinary law of the country with regard to descent; and by a parity of reasoning, there cannot be introduced provisions and conditions controlling and moulding the descent of a Peerage in a manner different from that in which real estate can be made to descend according to the law of the country. I think that is probably the answer to my noble friend's suggestion of these impossible entails specially created to facilitate Life Peerages. By parity of reasoning, if I may adopt the phrase of Lord Cairns, I think it is equally impossible for the Crown to summon persons to come and sit in this House not as Peers but as Prime Ministers of a Dominion, which is the suggestion in the question that was put to me. Therefore I think the answer to my noble friend's question must be "No."

But I would like to say a word about the Wensleydale case. My noble friend, quite rightly, pointed out that the Wensleydale case does not rest alone. I think he did a little less than justice to the majority in that case. It was an attempt to do what I think would have been a very useful thing. It was an attempt to enable this House to have the assistance of a certain number of persons well up in the law who would help the then Lord Chancellor in the decision of points of law arising on appeal, and Sir James Parke was a very eminent lawyer and a person well suited to act in that capacity. When the Patent was granted for life Lord Cranworth, who was then the Lord Chancellor, was the only lawyer who took the view that it was a possible thing to do. It was not only Lord Lyndhurst, but two ex-Lord Chancellors, Lord Brougham and Lord St. Leonards, as well as Lord Lyndhurst, equally took the view that it was not admissible, and one future Lord Chancellor, Lord Campbell, who was then Lord Chief Justice and in this House, agreed with the majority. Therefore I think it is a little hard on Lord Lyndhurst to put the whole responsibility on him. In fact every lawyer in the House with the exception of the Lord Chancellor, who I presume was speaking for the Government, and took the opposite view, agreed with the majority, which was a very substantial one I think ninety odd to fifty.

I believe that the decision was right. I believe that once you establish that the Writ of Summons does create a descendible dignity you do negative the right of the Crown to summon somebody for life and not create a descendible dignity. But whether that be so or not, after the decision in the Wensleydale case, as my noble friend pointed out, in 1876 a Conservative Government took the same view of the necessity of having legal assistance in your Lordships' House as the Whig Government had taken, and they introduced what I believe to be the correct method of providing that assistance by introducing the Appellate Jurisdiction Act. The question has been raised and discussed as to whether a Law Lord had any right to sit and vote in your Lordships' House after he had resigned his official position, and an Act had to be passed—it was not done by the exercise of the Prerogative—in order to give him that right. Again from time to time there have been an increased number of Law Lords created, and always by Act of Parliament, and I think to-day he would be a very bold man who should say that the Crown could exercise the Prerogative which had been denied as long ago as eighty odd years in the Wensleydale case, and had been denied by such a weight of authority as that to which I have referred and which has been acquiesced in by Parliament ever since.

That I think is the real answer to my noble friend's question. But I want to say one word about the general question as to the desirability of creating the power or the right to enable Prime Ministers of the Dominions to sit in your Lordships' House. I do not think, and I hope my noble friend will forgive me for saying so, that what he cites as a precedent is any sort of precedent for doing anything of the kind. The precedent he cites is the precedent established in South Africa by which Ministers speak in a House to which they do not belong. That precedent is one which enables Ministers who are responsible to Parliament to sit in either House of the Parliament to which they are responsible, but this is quite a different proposition. This is a proposition to enable a Prime Minister to sit in a House to which he is not responsible, and I think that, inevitably, we should create very uneasy feelings in the Dominions, to put it at the very lowest, if we were to impose upon Prime Ministers who are not responsible to our House attendance here. Not only that, but I do not think that it would be practicable because a Prime Minister has a full-time job whether he is Prime Minister of a Dominion or of this country. I doubt very much whether the Prime Minister of Canada or Australia or New Zealand would be at all grateful for being invited to come and attend for half the year at Westminster when he ought rather to be attending more legitimately to the affairs of his own Dominion.

I think this House is in a peculiarly advantageous position so far as concerns the possibility of ascertaining what are the views of the Dominions, because we have in this House a number of ex-Governors of the Dominions. We have, for instance, my noble friend Lord Stone-haven, the noble Viscount, Lord Bledisloe, my noble friends the Earl of Clarendon and Lord Bessborough, and there is also the noble Viscount the Leader of the House who speaks for India. We have a number of people sitting in this House who, by virtue of their meeting and discussing problems of the Dominions with members of all Parties on the spot, are peculiarly qualified to expound what are the views of the Dominions and what are the real requirements of the Dominions. We have had in recent speeches of my noble friends Lord Stonehaven and Lord Bledisloe, in regard to Australia and New Zealand, evidence of that great advantage which we possess. On all these grounds I doubt very much whether it would be desirable if it were feasible, and I am quite sure that it is not feasible without alteration of the law.

LORD STRICKLAND

My Lords, may I remind my noble friend Lord Snell, that Sir George Reid, at one time Prime Minister of Australia, so far from being a decrepit statesman having to go on the shelf, came over here after holding office overseas and was elected to represent St. George's, Hanover Square, in the House of Commons. My suggestion is not that Dominion Prime Ministers are to be made Life Peers in the decline of life. Prime Ministers from the Dominions are to-day amongst the most alert and illuminating ornaments of the human race selected and put in power by young democracies. Nor is it a suggestion in this Motion that if such Prime Ministers came here, they would occupy much of your Lordships' time or think of interfering in English politics. They would speak but seldom and could not be expected to be here often; they could nevertheless feel highly honoured by being here as Life Peers. There has been no suggestion that they should come and sit here regularly.

I beg leave to say a few words in defence of my views regarding Lord Lyndhurst's speech in 1856. He himself pointed out that Sir James Parke at the age of eighty had not and could not be expected to have male heirs of his body. Lord Lyndhurst gave prominence to an illusory expedient for creating Life Peers and pointed out that such a creation might have remainder in tail to persons who were not direct heirs of the person ennobled. This admission made his case a conveyancer's quibble. I will not detain your Lordships longer except to repeat that the suggestion before you would have the effect of making possible the consideration for the grant of the highest honours of the Prime Ministers of the Dominions where hereditary honours are out of the question. These Prime Ministers in view of the Statute of Westminster of 1931 should have equality of opportunity with other Prime Ministers in parts of the Empire where public opinion is more normal. I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.