HL Deb 28 February 1956 vol 196 cc8-52

2.50 p.m.

THE EARL OF SWINTON rose to call attention to the Report by the Select Committee on the Powers of the House in relation to the attendance of its Members; and to move for Papers. The noble Earl said: My Lords, the final order of the Select Committee which your Lordships set up to inquire into this matter was that the Lord in the Chair do make the Committee's Report to the House. That was done. The Report was presented to the House on the day we reassembled and your Lordships have had time to consider both the Report and the evidence, and now have an opportunity of expressing an opinion upon it. It was thought convenient that this general debate might open with an exposition by the Chairman of what is contained in the Report, and I will try to make that exposition as objective as possible.

Before I come to the Report itself, there are one or two things that my colleagues on the Committee would. I know, wish me to say. The first is how deeply grieved we all were at the sudden death of Lord Hastings. He was a most valued member of our Committee, and took the keenest interest in all its proceedings. He never missed a moment of attendance, and he had an enormous knowledge of all the past history of this House and its practice, as he had a deep feeling for the House itself of which he had been for so many years a Member. I often heard it said in another place that So-and-so was "a House of Commons man." If ever there was, in the best sense of the words, "a House of Lords man," it was Lord Hastings. I am sure, too, we should also wish to express our gratitude to the Clerk of the Parliaments and to our Secretary, Mr. Perceval. They knew a great deal more than many of us knew before we started, and no research was too arduous for them. I am pretty well convinced that there cannot be a precedent, or indeed any pertinent passage in the Records, which the Clerk of the Parliaments and Mr. Perceval did not unearth for us. We are also grateful to all those who gave evidence before us. If it is not invidious to mention one, I think the Committee would agree that I ought particularly to mention Mr. Squibb, the Counsel to the Crown in Peerage cases. Mr. Squibb was a mine of information and he sustained with equanimity and distinction two days of cross-examination by a rather formidable body.

Now, my Lords, I come to the Report. The first observation I would make upon the Report—and I think it not unimportant—is that it was unanimous. The House will recall that the Committee were charged to report what the House can do, and not to recommend what the House should do; and I think we ware careful to adhere to those terms of reference. Our remit was, in a sense, limited in another respect, in that we were asked to report to the House on its powers "in relation to the attendance of Members" but the moment we began to consider this it became clear to us that we could not consider powers in relation to attendance, as it were, in isolation from other kindred powers: the same considerations govern them all to a large extent. Therefore we had to cover a wide field. We had to consider the nature of the Writ of Summons and the rights and duties under the Writ. We had to consider the powers of the House in relation to the law and custom of the Constitution. We had to consider how far, if at all, the House is hound by its own precedents, and we had to consider whether the exercise of any of the powers which we found the House possessed could in any way touch the Royal Prerogative. On that last point, which is of course most important, I can set your Lordships' minds at rest at once: the Committee were clearly of opinion—and we included great legal authority—that any exercise of the powers which our Report imforms your Lordships you possess, would not in any way touch the Royal Prerogative.

In paragraphs 2 to 4 of the Report you will see set out, as succinctly as we can set them out, some general considerations with regard to powers and the exercise of those powers. Each House is the sole judge of its own powers and the sole interpreter of its privileges; we have no written Constitution. There is no supreme court of law which can pronounce on the extent of the powers of either House or of the exercise of those powers. But though we are not callable to account in any legal manner, it is clear that there are certain things which this House, and indeed the other House also, cannot do. Neither House can create a new privilege which is not warranted by the known laws and customs of Parliament. Neither House can, by mere Resolution, contravene or override Common Law or Statute Law. That is simple and clear. It is much more difficult to lay down how far, if at all, the powers of the House are limited by the custom of Parliament and of the Constitution. Quite clearly, the House is not hound to follow its own precedents. If it were so bound, no new precedent could ever have been created, and we should still be living in the time and under the procedure of Edward I. Both Houses have made constant and radical changes in their precedents and in their practice—indeed, as was said before us, the whole evolution of Parliament has been "a broadening down from precedent to precedent."

The House has carried this power a long way. One striking example of the House changing a precedent by the exercise of this power was the abolition of proxies. Your Lordships may think that to-day proxies are out of date, as indeed, they are; but at the time this House abolished proxies, one of the greatest legal authorities in the land said in this House that they were an ancient and inalienable right of every Peer. In spite of that view, the House thought it was unfitting that Peers should vote by proxy, and suspended the exercise of proxies. That was seventy or eighty years ago: the House abolished proxies, and they have never been restored. I am sorry that the noble Marquess, Lord Exeter, cannot be here to-day: he is one of a number of Peers who are stricken with influenza. The noble Marquess said in the debate in your Lordships' House that he largely founded his proposal to limit the voting right of Peers on action as drastic as that which I have mentioned, even though it was entirely reasonable.

The Committee have summed up these considerations at the end of paragraph 4: The position therefore is that established practice can be adapted to current requirements, provided there is no infringement of constitutional rights. No doubt or difficulty can arise where the House is dealing with what is clearly procedure, but it is not nearly so easy to define procedure. There are large areas where procedure is interlaced with, and overlaps, the law and custom of Parliament. Perhaps the most obvious example is in Peerage cases. This House can, and has, reversed its own decisions in Peerage cases; and it is interesting to observe that in such cases the House has not felt bound, as do the Law Lords, sitting as the supreme Appellate Tribunal, to follow a previous decision, or, if I may say so without impertinence, to find an ingenious way round it. If the House thought a decision was wrong, then the House reversed it.

Noble Lords will see from the Report and the evidence that this power and, in particular, the Wensleydale case and the Rhondda case, figured largely in evidence. It is right, therefore, that I should draw your Lordships' particular attention to the finding of the Committee, given at the end of paragraph 7: There is no doubt that the House could re-consider the issues raised in these cases"— that is, the Wensleydale case and Rhondda case— and could come to a different conclusion. But in so doing the House should have due regard to what it considers to he the true constitutional position. It is certainly not for me to express an opinion to-day on whether the Wensleydale case was rightly or wrongly decided; nor would it be relevant to the matter I have to deal with. Great lawyers differed upon it then and have, I believe, differed upon it since; but reading the debate it is interesting to remember that, though that case went to the Committee for Privileges, in fact the Whole House sat as the Committee for Privileges. There was first the Motion by Lord Lyndhurst, before a very full House, and the question was then referred to the Committee for Privileges. It was then heard, not before a special select body of people but by the Whole House which had been taking part in the general debate, as we do to-day—for we are all members of the Committee for Privileges. Reading that debate of 100 years ago one wonders how far the majority of noble Lords (it was not a very big majority) who took part in it were convinced by Lord Lyndhurst's law and how far they were swayed by his eloquent defence of the hereditary principle, and his even more violent denunciation of the principle of creating Life Peers, a purely political argument which, I imagine, would not find a large measure of support to-day.

Having considered this broader field, the Committee addressed themselves to powers in relation to attendance. Here so much turns upon the Writ of Summons and the words of the Writ that the Committee thought it well to set out in the Report the full terms of the Writ, which in solemn words imposes upon every Peer the duty to attend. Originally the Crown exercised the power of excusing the attendance of Peers; but from the beginning of the seventeenth century, the power to excuse, to grant leave of absence, was taken over by the House and has been exercisable by the House ever since. It still figures, of course, in our Standing Orders. It is not only the terms of the Writ that are important. Every Peer is undoubtedly entitled to receive a Writ—that is fundamental. Under the Writ every Peer has certain rights and duties. He has the right to a "seat, place and voice" in Parliament, and the Committee held that this right of voice necessarily implies the right to vote. It was contended that a distinction could be drawn between the two, but we felt that no such distinction could be drawn. Originally, perhaps "voice" was the right word (it still remains in the Writ) because when the House was asked to give its opinion—and in the Writ are the words "to treat and give opinion"—it was the practice that every Peer in turn should be asked for his opinion. The voices are, of course, still collected by the noble Lord on the Woolsack or the noble Lord in the Chair, but if the voices are not unanimous, we have not for many years, under our Standing Orders, given our voices. We go into the Division Lobby and record our votes. We felt that it was impossible, therefore, to draw a distinction between voice and vote.

The second thing which the Writ quite clearly does is to impose on every Peer the duty to attend. It also confers upon Peers all such other rights as Peers customarily possess. I hope your Lordships will not press me for an exposition of what those rights are. Some of them are recondite, and I should certainly think, disputable to-day. For example, in the middle of the eighteenth century an ancestor of my noble friend Lord Fortescue got the House to do some very strange things to a tenant of his. The Serjeant-at-Arms was sent to bring the man up here and to put him in prison because he cut down some apple trees within sight of the noble Lord's house. The House must not think that my noble friend's ancestor was unique, for another noble Lord, whose descendant is probably with us at this moment, claimed that his doctor should be immune from arrest, thereby displaying, I must say, an unusual and probably misplaced confidence in his medical adviser. However, I must not go hunting these agreeable hares; I must come to the relevant matter.

The Committee, having considered the Writ, then dealt with the issue and delivery of the Writ. Until the early nineteenth century Writs were delivered personally to Peers. There was a gentleman who was paid, I think, to go round the country with them, but at some time at the beginning of the nineteenth century—whether under an early economy campaign or not I do not knew—the Lord Chancellor stopped this, and the poor man went out of business. Since then Writs have remained in the custody of the Crown Office in the Palace of Westminster for Peers to collect if and when they come to take the Oath. We were clear that it would be within the power of this House to request the Lord Chancellor, in future, to send the Writ, or a copy of it, to Peers so that each Peer summoned would receive his Writ or copy of it—and, indeed, your Lordships may think it rather odd that a summons which is so urgent and stringent in its terms should never, in fact, be delivered to the person to whom it is addressed. That would be perfectly simple.

There is a mass of precedent from the beginning of the seventeenth century to the middle of the nineteenth century for this House enforcing the attendance of Peers by summons, fine, or even by imprisonment. In this matter, in the old Clays—or perhaps not such old days—the House was no respecter of persons. On one occasion a brace of Dukes were hauled up for failing to attend, and fined; and I think one of them was sent to prison. Though the power to enforce attendance has not been exercised for more than 100 years, the Committee were in no doubt that the power still exists and could be used by the House if it so desired. Of course, the problem to-day is very different from that which faced the House when that power used to be exercised. Then there was a comparatively small House, and it was important to secure the attendance of a large proportion of its Members. Now the House has grown to a great size, and many Members cannot attend.

Your Committee summed up this position in paragraph 20 of the Report, which, with your Lordships' permission, I will read: The Committee have felt obliged to recognise that at present, out of so large a number, there must be many who are unable to attend, either because they are fully occupied with other important duties, or because they feel themselves unfitted for parliarnentary work, or for reasons of age, health or expense. Recognition of the undoubted fact that many Peers are thus debarred or prevented from attending the House is not, in the view of the Committee, to be taken as criticism of such Peers. At the same time, the Committee felt that the view might well be taken by the House that it is not right that the words of the Writ of Summons should, in numerous cases, thus be disregarded. The Committee have, therefore, given careful consideration, in the light of the evidence placed before them, to methods by which Peers who are unable to attend the House could be relieved of their obligations without loss or diminution of their rights. That, naturally, led the Committee to consider a number of proposals, all of which the Committee felt would involve, directly or indirectly, the exclusion of a. Peer from the House. And the Committee are definitely of opinion that the House has no power to exclude a Peer. It was argued that as absence without leave is a contempt punishable by fine and imprisonment, it was reasonable that the House could inflict the lesser penalty or sanction of exclusion; indeed, it was argued in support of that proposal—as is obvious—that if a Peer is in prison for non-attending he cannot attend the House, therefore the sanction of exclusion might be employed. The fact remains, however, that the purpose of the major penalties, of fine and imprisonment, was to compel a Peer's attendance, and not to deprive him of the right to attend. And we could find no precedent for excluding a Peer for non-attendance. As I have said, the Writ to which every Peer is entitled enjoins him to attend unless he is excused by the House.

On this reasoning, the Committee were unable to accept the proposal which my noble friend Lord Exeter had made very forcefully and persuasively in debate in this House, and which he made to us again in the Committee, that a Peer should be excluded from attendance, or at any rate from voting, unless he had attended the House a prescribed number of times in the preceding Session. The Committee could not accept that suggestion, and they could not accept the argument, based on the abolition of proxies, that such a course would be within the powers of the House. I say that for this reason: the suspension of proxies, or the abolition of proxies, did not deprive any Peer of his right to attend and vote; it merely required a Peer to attend in person if he wanted to exercise his right to vote. But while, in our view, there is no power to exclude, the House undoubtedly has the right to compel attendance, and to grant leave of absence, though it could not, in so doing, exclude. But within these limits the Committee consider that the House could use its dual power to meet the present situation in a manner which would conform to the rights and duties of Peers under the Writ.

If the House were minded to proceed on these lines, the Committee thought it would be convenient to advise the House on the methods which it could adopt. I will read in full the paragraph which deals with this aspect, if I may, because it contains much of the "meat" of what I must not call our recommendations, but our findings. Paragraph 33 of the Report states: It would, for example, be well within the powers of the House to arrange, as suggested above that his Writ or a copy of his Writ should be sent to every Peer, together with a copy of any new Standing Orders on leave of absence. These Standing Orders might provide in substance—

  1. (a) that it is the duty of Members of the House to attend regularly or as often as they reasonably can or else to apply for leave of absence;
  2. (b) that a communication be addressed to all Members of the House at the beginning of every Parliament, stating that if they desire to be relieved of the obligation of attendance they should apply for leave of absence, either for the duration of the Parliament or for any shorter period, and further that they should state in reply to such communication whether they do or do not desire to apply for leave of absence;
  3. (c) that any Member of the House who fails to reply to such a communication should be regarded as having applied for leave of absence, unless he attends to take the Oath within one month of the beginning of a Parliament;
  4. (d) that Members of the House are expected, if they have been granted leave of 16 absence, not to attend until their leave of absence has been terminated by their giving such notice as may be prescribed by Standing Order."
Your Lordships will see that in paragraph 34 we state that in our opinion the House could treat as compliance with such Standing Orders a statement that a Peer would attend as often as he could. I think that in saying that we were expressing not only our own view but the sentiment of the whole House that there are a number of its Members who are unable to attend regularly but who are most valuable Members when they can come here and speak on some special subject, and that we should be sorry to do anything which would exclude the possibility of their coming here. Therefore we feel that such an undertaking by a Member would be well within the Standing Orders and the spirit of the Standing Orders which we consider the House has the power to adopt. We have framed our findings on the assumption that if the House made these Standing Orders, they should apply at the beginning of a Parliament; but they could equally well be made to apply at the beginning of any Session.

Finally, we had to deal with the not very easy question—though we did not find it difficult on merits—whether, if the House were to adopt Standing Orders on these lines, they should contain sanctions. For the reasons we have given in paragraphs 37 and 38 of the Report, we were definitely of opinion that the House would be ill-advised to attempt to include sanctions in its Standing Orders. I do not think we ever have done so; we have never found it necessary, and what is unnecessary is seldom desirable. After all, Standing Orders are made by the whole House, after full consideration and debate, and therefore express the collective will and wisdom of the House. I do not think any of us can remember a case where Standing Orders so passed have not been readily accepted by the House. We are, if I may say so, an orderly and well-conducted assembly, and the Committee felt, therefore, that it would be both unnecessary and undesirable to attempt to insert sanctions in the recommendations. I feel sure that the House will agree with the Committee in that view.

My Lords, that is our Report. I have tried to put it to the House as succinctly and as clearly as I can. I hope that the House will think that the Committee have discharged adequately the task committed to us. I think we can claim two virtues, at any rate, for our Report. The first, as I said at the beginning, is that it is unanimous; the second is that it is definite. I hope I can make a third claim for it—that is, that it is reasonably clear. My Lords, I beg to move for Papers.

3.23 p.m.


My Lords, it may be for the convenience of the House if I intervene early in this debate to give my views, such as they are, as Leader of the House, on the extremely interesting and, I believe, most valuable Report of the Select Committee over which my noble friend Lord Swinton has presided. But, before I do so I hope I may be allowed to follow him in saying a few words of sincere tribute to the memory of the noble Lord, Lord Hastings, who played, I know, so large a part in the work of the Committee, and of whose death I read with such a sense of personal loss while I was away.

The noble Lord, Lord Hastings, was one of the most distinguished members of your Lordships' House. He combined very long experience with an extremely acute mind and a gift of exposition of even the most intricate points which was really masterly. In recent years, as we all know, the other work that fell upon him and also the weight of increasing years made it difficult for him to be in his place here as often as he would, I am sure, have wished—for he was, as Lord Swinton said, in every sense a House of Lords man. But whenever he did come to take part in our debates he always—at least this was my experience—ecntributed something of very real value to our discussions; and there is not one of us, I am sure, in whatever part of the House he sits, who does not feel that by the noble Lord's death this House has suffered a severe loss.

My Lords, I should also like, if I may, before I proceed to the substance of this Report, to thank most sincerely my noble friend, Lord Swinton, and the other members of the Select Committee on behalf, I am sure, of the whole of your Lordships' House, for the hard work that they have put in, and also to congratulate them on the fruitful and important results of their deliberations. I feel this House is under a real debt of gratitude to them. We could have had no more authoritative body to advise us on this subject, which they were asked to consider. The Report which they have produced will, I am sure, earn the gratitude, not only of us in this House who appointed the Committee, but of historians and others who in the years that lie ahead are concerned with the matters with which the Report deals.

It would, of course, as I think the noble Earl, Lord Swinton, has himself emphasised, be a great mistake to try to read too much into the Report. The Committee were intentionally strictly limited in the scope of their inquiries, and the Report, therefore, is not concerned with, and has in my view no direct bearing on, such a subject a; the reform of your Lordships' House—in case there may be anybody who would attempt to link the two together. For, as the Committee said—and the noble Earl, Lord Swinton, has quoted the words this afternoon—the House charged the Committee to advise what the House can do and not what the House should do. It was not concerned with the future. It was asked to consider quite a simple and quite a straightforward question (perhaps I should say quite straightforward though not quite simple) and that question was: What are the existing powers of the House with regard to the attendance of members? It was asked just that and no more, and it is to that particular point that the Report is confined; though, of course, as Lord Swinton has explained to you, even that has involved very extensive researches over an extremely wide field.

In these circumstances, I do not propose this afternoon to deal with any points that go beyond those limits which I have tried to define and I certainly do not propose to trench on such subjects as the reform of the House of Lords. That, in my view, would be quite beyond the scope of this debate. No doubt other opportunities may occur to discuss these wider issues, but not to-day. At the same time, the fact that the scope of this Select Committee's Report is limited certainly does not, to my mind, in any way diminish the importance that should attach to it. For one of our greatest anxieties in this House at the present time, as all of us know only too well, is this particular question of the attendance of Peers. It is a subject that has cropped up again and again in recent debates. On such occasions, as I think we shall all remember, very varying views. have from time to time been expressed by noble Lords, as to what the House itself could do of its own volition and under its own powers to improve the attendance of its Members; and what, if any, penalties it could impose on those who do not attend. I think it is clear—and I think we all felt it—that the time had come to clarify the position. We had to know where we stood. It was for that reason that this Committee was set up, and I feel that it has brilliantly justified the decision of the House.

Those noble Lords who were good enough to accept an invitation to sit on the Committee certainly had no easy task. They had to feel their way back, as the noble Earl, Lord Swinton, described, through the recesses of history; they had to try to unravel a tangled web of precedent which must often, and certainly at first sight, have appeared to be conflicting; and they had to try to discover from these what powers the House had claimed in the past, what powers, if any, had lapsed, what powers there might be which—though they had fallen into desuetude—still existed and could be revived: they had to try to define both what the House in theory could do and what the House in practice has done. The members of the Committee might well, in my view, have despaired of being able to give any definite counsel to the House on matters so involved as that. Yet they have, as those of us who have read the Report know, succeeded in giving counsel in a Report which is brief, authoritative, clear and eminently wise.

What emerges from the Report of this Committee? I speak not as one of those who had a part in writing it but as one, like most of your Lordships, who has only read it. But certain things I feel are now quite definitely established. The first is that it is clear that this question of non-attendance of Peers is not a new problem which results from any novel conditions which never existed before. It is a problem which, as I understand it, has always existed, probably ever since the Middle Ages, and no perfect solution has ever been found for it. Next, in the light of this Report I think we can have no doubt that Peers have a right to a Writ of Summons. That is a matter about which there were before differences of view, but I think it is perfectly clear now that such a right exists. Not even the Crown, as I understand it, and much less the House, has any power to withhold the Writ. That was established beyond doubt at the time of the Bristol case in 1625 and has never been seriously questioned since.

But equally—and this, I am afraid, is by no means so generally recognised by noble Lords to-day—the Writ and Patent which Peers receive impose an absolute obligation on Peers to attend the Sittings of the House. The wording of the Writ—as those of us who come to this House and hear it read know well, and it is also quoted in the Report—is unequivocal. It says in the clearest possible language: We"— that is, the Crown— strictly enjoin you and command you, waiving all excuses, to be present … Nothing could be more definite than that. And yet I think—and this is important also—that although the Crown has power, and has always made it clear that it has power, in principle to insist upon attendance, it has also recognised, with complete objectivity, even from the earliest time, that circumstances might crop up which would make it impossible for a Peer to obey the Writ. It is for that reason—I am afraid I did not know how far this practice went back until I read the Report—that almost from the start of Parliament the Crown has always reserved the power to excuse a Peer from attendance; and that power was later transferred to the House and still exists at the present day. Lastly—and this is the last main point, as I see it, made by the Committee—unless a Peer has asked for permission to be absent he can, in theory, be subjected, at the will of the House, to a wide range of pains and penalties, ranging from fines even to imprisonment.

All those things are clear from this Report. Such, as I understand it, has been the legal position in the past and remains the legal position now. I do not, of course, suggest that even in theory there are no limitations of the powers of this House. Evidently, it cannot do anything which infringes the Royal Prerogative—the noble Earl, Lord Swinton, has made that abundantly clear this afternoon. It cannot, for instance, exclude Peers from attending to their duties; because that would obviously nullify the Writ which the Peer receives from the Crown. It can, as I understand it—the noble Earl will correct me if I am wrong—disquelify a Peer from attendance; but only in cases where there are statutory reasons for that disqualification; that is to say, where it follows the existing law in cases of bankruptcy, treason, felony or cases of that kind.


Statute or Common Law.


Yes, Statute or Common Law. But although there are these limitations to the powers of the House, it has, in theory at any rate, pretty wide powers; and they exist to-day. At the same time, no one in his senses would suggest that all those powers could in practice be applied, or that they have been applied for a pretty long time now. The last time, as I understand it, that any attempt was made to bring serious official pressure on Peers to attend was over one hundred years ago and that was for a special occasion, the trial of Lord Cardigan: and even then, judging by the Report, the pressure was singularly unsuccessful. How much more impossible it would be now, in existing circumstances, to impose upon the holders of hereditary Peerages an absolute obligation to attend all the Sittings of the House! Obviously, as we all know, it would not be a practical proposition to go so far as that.

That has been stressed by the Committee and they have also stressed—and I would strongly agree with the particular passages in the Report—that that implies in the great majority of cases no criticism of noble Lords concerned. In spite of gibes which one sees sometimes in the Press and elsewhere, Peers to-day are not idle people, whatever they may have been in the past. The so-called "backwoodsmen," who are still referred to by people of that sort are nearly all, in fact, as your Lordships know, busily engaged, very much like their fellow-countrymen, in earning their daily bread—that is the occupation of the majority of Peers at the present time; or they are doing unpaid work, if they can afford to do it, in their own parts of the country.

Moreover, as I think I said to your Lordships before, there has been within the last century—it had perhaps begun even before that but it has come more and more to the fore—a radical change in the meaning and purpose which is generally attached to the grant of a Peerage. In old times, the grant of a Peerage was taken to mean, as the Patent implies, that the King or Queen, as the case may be, wished to take the Peer in question into counsel. In fact, by the grant of a Peerage the Crown, under that definition, was conferring upon the individual a definite function which he was expected to perform. But in recent times, more and more, the grant of a Peerage has conic to be regarded by large numbers of the people, however wrong it may he, in quite a different light. It has come to be regarded as an honour given for work that has been done, rather than a call to do more work. The idea that a Peerage implies continuing duty, in the minds of many people, has largely gone out of the picture. I do not say that that is right—in fact, I think it is wrong—but it is a fact that we must face.

If a new Peer happens to be interested in politics, no doubt he will attend the House and give valuable service to it; but otherwise, in a great many cases, he feels no great obligation to take part in the work of Parliament, except perhaps on his own subject. That is one of the main problems with which your Lordships' House is faced to-day. The Select Committee have, I think most wisely, recognised that, and in the nearest thing to a recommendation that they have felt it proper to make they have devoted themselves to suggesting a method by which the House could, if it wished, bring to the notice of all Peers the obligations which peerages involve for all who hold them.


We have told you how you can do it if you would like to do it.


No doubt it was thought improper to go further than that: "A nod is as good as a wink," and I have taken it in that light. There is nothing very revolutionary in this idea. What the Committee suggest for the consideration of your Lordships' House is, in fact, a revival of a practice which was abandoned, to my mind most unfortunately, only at the beginning of the nineteenth century. Before that date, as I understand it, Writs of Summons were sent out to every Peer at the instance of the Lord Chancellor. It does not say in the Report how often they were sent out, but at any rate they were sent.


I think I am right in saying it was at the beginning of each Parliament.


Anyway, the Committee indicate the possibility that that practice might be resumed. I am speaking only for myself, but I think that that suggestion is an eminently reasonable one. For some considerable time, like, I imagine, a good many other noble Lords in this House, I have been extremely unhappy about the present practice with regard to Writs. No doubt a new Peer ought to appreciate the obligations into which he is entering, since he hears the Patent read when he is introduced into your Lordships' House. But the Peer who inherits a Peerage under the present system is, so far as I know, never sent a Writ of Summons at all. He has to take the initiative himself if he wants to take his seat. And when he arrives at the House and is handed the Writ, even then he receives it tightly tied up with tape and is expected to hand it in that condition to the Lord Chancellor, without being given any encouragement to "read, mark, learn and inwardly digest it." That is, surely, an absolute travesty of the whole intention of the Writ of Summons, as it was originally conceived. I should, therefore, like warmly to welcome the indication of the Committee that a reversion to the earlier practice is within the powers of your Lordships' House. I am glad that they have given us that hint.

Indeed—and this is really the last thing I want to say—I should like to go further and say that the Government and I, as leader of the House (and perhaps on this occasion I should speak more as Leader of the House than as a member of the Government), welcome the Report, as a whole, extremely warmly. I can assure your Lordships, and the members of the Committee, too, that I shall take an early opportunity of studying all the comments they make, both those in paragraph 15, which relate to the delivery of Writs to Peers, and those other closely allied comments in paragraph 33 as to the possibility of framing new Standing Orders dealing with leave of absence. Whether it is practically possible for us to go so far as to say that a Peer who has received a copy of Standing Orders on the subject and has not replied may be regarded as having asked for leave of absence, and that he should be, as I understand it, debarred from taking any part in the House until that leave of absence has been terminated, I do not know. Indeed, the Committee, judging by the gloss which they put on the suggestion in the following paragraph, are perhaps themselves slightly doubtful. In any case, it is clearly a point well worth examination with the other point which I have already mentioned.

If the House will give broad approval to the Report of the Committee, as I hope it will, I can assure noble Lords that I will take these matters up as a question of urgency with my noble and learned friend the Lord Chancellor and the Leaders of the other Parties in this House, and will report to your Lordships in due course the provisional conclusions to which we come. I repeat that I welcome this Report most warmly. I am, and I am sure we all are, most grateful to the noble Lords who have given so much time, labour and learning to its preparation. This is, in fact, the first Select Committee which has been appointed by your Lordships' House since the war, and I think it has amply justified our initiative. It is for us now, the whole body of Peers, to study this Report and to see what use can be made of the conclusions to which our Committee has come.

3.46 p.m.


My Lords, we all owe a debt of gratitude to the noble Earl who has introduced this subject for the clarity with which he laid the findings of the Committee before your Lordships' House. In fact, he dealt with it in such detail that most of the time he seemed to me to have in mind that probably a good many of your Lordships had not read the Report, and that after his speech there would be no excuse left to them that they had no basis of understanding it. This is not exactly a book of adventure to bring to the notice of the House. It is not a lively subject, but the noble Earl managed to introduce into the subject some humour as well as exposition, and we are grateful to him.

The mover of the Motion and the noble Marquess the Leader of the House have paid tribute to the late Lord Hastings. Unfortunately, although I have been a Member of your Lordships' House for four or five years, I did not know Lord Hastings well; but I am quite certain, from conversations I have had with my colleagues, that we all desire to be associated with the eloquent tributes which have been paid to him to-day. Because of what we have heard from my noble friend Lord Silkin, and other representatives who sat on the Select Committee, we should also like to convey our thanks to the Officers of the House for the great assistance they gavel to the Committee.

My comments upon this Report need not be very long, because the position has been greatly clarified for me by the noble Marquess the Leader of the House. He has made it quite clear that there is no desire on the part of himself, or the members of the Government, at any rate, to widen the scope of discussion to-day beyond the actual Report within the terms of reference which were given to the Select Committee; there is to be no question, therefore, of bringing in by a side wind questions relating to the Reform of the House of Lords. I should not dream of departing from that good precept which the noble Marquess has laid down, and I can reserve any other remarks I have to make about Reform of the House of Lords to some future date upon a different kind of Motion.

What we have been hearing about to-day and reading in the Report is how can we best deal, within the present situation and under the powers we have, with unfortunate absenteeism. We hear a great deal about absenteeism in industry when workers are concerned, and we sometimes find that in their case there are sanctions. In the past, apparently there were penalties within the powers of your Lordships' House that would be almost horrifying if they were applied to absenteeism in other spheres in this country. Fortunately, they have not been widely used, and I hope they never will be. Certainly Party Leaders have never been without their troubles in these matters. It has always been within the Party province to issue a whip, and to have people like the noble Earl, Lord Fortescue, or my noble friend Lord Lucan to see that people attend. What penalties and powers they can exercise within a Party sphere I am not quite sure. It was always astounding to me how the three-line Whip in another place could produce an attendance which was so different at the time when the Division was to be taken from what it was at almost any other time during the debate. If I may say so without offence to noble Lords present, it is interesting to observe how good an attendance we have when we begin to discuss the powers of the House. I feel, as I am sure the noble Leader of the House feels, that if there were always an attendance as good as we have to-day upon urgent matters that have to be dealt with, it would be a great tribute to the work of the House of Lords.

May I say that, whatever my feelings may be about the constitutional position of the House of Lords or what should be done at some other lime about the constitutional position of this House, there can be no doubt about the effectiveness of a great deal of the work which is done here. We have had one or two examples of it recently, and perhaps none better than that extraordinary document the Copyright Bill, with which the noble and learned Viscount on the Woolsack has had so much to do in the last few weeks. How much actual voluntary labour, capacity, skill and time can be given without any payment whatsoever to making a had Bill into a good one and saving a lot of time of those better-off people in another place when they come to deal with the later stages of making the law ! So do not underestimate at all the value of the work done here.

However, I believe it is true to say that at the end of this careful Report of the Select Committee all that is brought to the House for consideration is the question of our power to do certain things by the passing of Standing Orders. It is said that Standing Orders are often made to be broken and I have known them broken on a great many occasions in another place, but I have not yet come across an instance, in my experience of five years or so here, of Standing Orders being broken in this House. I dare say that if we are unanimous about what goes into Standing Orders a good deal can be accomplished in the desired direction without any controversy; but, whilst the Report of the Select Committee is unanimous (and I think the noble Earl who moved this Motion is also entitled to claim that it is definite and clear) we should make sure that the thought and drafting which go into the making of new Standing Orders within our powers shall also be, if possible, unanimously received and adopted by the Members of your Lordships' House. If your Lordships' Standing Orders are to be made with rectitude and in the gentlemanly manner that we have adopted previously in this House, it is essential at the beginning that they should be thoroughly well agreed and unanimous. I do not think it necessary to make any further comments on the Report in view of the clarity of the exposition already given and the fact that the one point it contains is how we can help in this matter by a revision of Standing Orders.

3.54 p.m.


My Lords, the object of this Motion is simply to call the attention of your Lordships to this Report. I suggest that at this stage little more can be said than that we have given it our attention, that we are grateful to the noble Earl and his Committee for their excellent work of examination and clarification, and that the Report will indeed be a most useful basis of reference in possible future deliberations of a rather wider scope, in which the question of attendance in your Lordships' House may constitute only one aspect. I should like to add my tribute to those of others to the late Lord Hastings, whom in the past we have heard speaking in your Lordships' House with extreme clarity and who gave us all great assistance. Coupled with that are our thanks to the Officers of the House who have helped in the compilation of this very clear Report.

The conclusions of the Report—I know the difficulty—are, in a sense, somewhat inconclusive, but I hope that the summary of possible new Standing Orders which is given, I believe, in paragraph 33 will commend itself to the majority of your Lordships, since obviously the present position in this regard is unsatisfactory and calls for improvement in the interests both of clarity and of Parliamentary efficiency. There are, I believe, some who would hope to see the Second Chamber recede into insignificance and possibly into ultimate extinction by the gradual erosion or lapse of use of the functions which it exists to perform. From that view I wholeheartedly dissociate myself as being morally a dishonest view; and that objection alone seems to be a good reason for welcoming this Report which brings clearly into focus certain anomalies which call for remedial action by this House.

In such a discussion as this, it is only too easy, as the noble Marquess has pointed out, to overstep the limitations of the immediate subject and to speculate upon other aspects of the British Parliamentary system, to which the question of attendance in the Upper Chamber is relevant but not fundamental. Since we are discussing attendance alone, and none of its ancillaries or corollaries, I would merely record that I consider that the Select Committee have put their finger very much upon the crux of the matter in paragraph 20, where it is recognised that many are unable to attend your Lordships' House for perfectly valid, understandable and justifiable reasons. Of these, I personally am convinced that expense is often not the least, though in the past this has been a reason which has not been much discussed in public in your Lordships' House. I am glad that the Committee have broken the ice in that respect on this important subject, which must come to the fore in the future, which has been brought into the foreground now and which is now ready to be dealt with without the indelicacy or indecency that may in the past have been thought to be present.

There is only one other matter upon which I would touch, and here I find myself, with great respect, in point of difference with the noble Earl, Lord Swinton. It is perhaps rather academic. Among the proposals examined were some which, for one reason or another, I advocated a restriction upon a certain category of absentees from this House: it was proposed that they should be restricted from proceeding to the Division Lobby to vote. A notable example of this was contained in the suggestion from the noble Marquess, Lord Exeter, referred to in paragraph 24. My own submission is that the record of votes which is made in the Division Lobby is no more than a mechanical device copied from another place and adopted by this House in the 17th century in order merely to ascertain the specific number of Contents and Not-contents who had already cast their votes by their voice in answer to the Question put either from the Woolsack or from the Chair in your Lordships' Chamber. In other words, I respectfully submit that the voice which every Peer has in addition to his rightful place and seat is the voice not only of debate but also of his actual vote, which is given, and always has been given, orally and not in any Lobby outside the Parliamentary Chamber of this House.


My Lords, I am anxious to follow the noble Lord's conclusion. We found that one could not distinguish between voice and vote, in the sense that my noble friend Lord Exeter wished to distinguish them, and therefore that nobody should be excluded from voting. We are very clear that the phrase "voice" in the Writ entitles the Peer to come here and to use his voice and to use his vote. Is the noble Lard dissenting from that?


In that case I misunderstood the noble Earl; we are in accord. My point is that his voice in this House is his vote, and it is merely a device for recording his vote when he goes into the Division Lobby. I therefore agree that voice and vote cannot be dissociated, so it would, I think, be improper to deny to any Peer the right to have recorded in the Division Lobby the vote which, under the Writ and Patent, he has a clear privilege of giving in the Chamber in accordance with the words "seat, place and voice." Apart front this rather dialectical point. I would offer no criticism of this clear Report, and again would express to the Select Committee our gratitude for their labours.

4.1 p.m.


My Lords, I, too, should like to add my congratulations to the noble Earl, Lord Swinton, and his Committee for this most illuminating and interesting Report. May I suggest that, since the House charged the Select Committee to advise the House as to what it can do, it might not be out of place if this debate were to indicate what the House should do within the findings of the Select Committee? It is true that the Report is limited to an inquiry into the powers of the House, but when these powers are examined it becomes obvious that their use to any considerable extent must mean a limited reform of the House. It has always been my view that the reform of the House should come step by step, and that any radical reform might well be a mistake which would alter the whole character of the House without in any way improving it—and, moreover, might well raise many difficulties in another place. I suggest to your Lordships that in this Report we have the nucleus of the reform which is long overdue and which might go a long way towards strengthening this Chamber and perhaps removing the "backwoodsman" gibe that has from time to time been levelled at this Chamber.

In the first place, I should like to see the adoption of the proposed Standing Orders as set out in paragraph 33 of the Report. It seems to me that they should apply at the beginning of a Parliament, but in accordance with paragraph 35 there appears to be no reason why they should not be made to take effect during a Session, which would mean that we could make such Standing Orders at once, should the House so desire. I, for one, should like to see those Standing Orders passed as soon as possible. I do not think it is likely That Peers would disobey Standing Orders, and for that reason it would seem that in quite a short time a known working body of Peers of the House would be established. When that had been clone, I suggest that it would be proper and reasonable that Peers should have some form of expense allowance.

I should now like to turn to the more important question of Life Peerages which has been raised by the Report on the Wensleydale Life Peerage case. If noble Lords would turn to paragraph 7 of the Report they will see it clearly stated there that There is no doubt that the House could reconsider the issues raised in these cases and could come to a different conclusion. Those of your Lordships who have studied the Wensleydale case will recollect that in 1856 the Whole House sat as a Committee for Privileges and divided, with the result that 92 Peers voted against Life Peerages and 57 voted in favour—a majority of 35 against the proposal. I think it interesting to note that ten Peers, including the Lord Chancellor of the day, entered a series of protests against this result. Perhaps the most important one to note is the one in relation to the prerogative of the Crown. The Protest was in these words, which can be found in the Journals of the House for February, 1856: Because according to the uniform opinions of the highest legal authorities in above two centuries and a half, the Crown has the prerogative of creating a Peer for life, with all the privileges of the hereditary system, except that of transmitting his honours to his descendants. There is no doubt that a considerable difference of opinion existed at that time over the Wensleydale case, and therefore I would say that there is every reason why the case for Life Peers should be reconsidered. It is also quite clear that even in those days, when one might have expected a strong aversion to Life Peers, there was a considerable body of opinion in favour of them; and I think that today there are in the House few Peers who would not be prepared for the House to accept Life Peerages.

I suggest that the House might deal with the matter in one of two ways, or perhaps both. First of all, the House could again form itself into a Committee for Privileges and reconsider the issues raised in the Wensleydale case, which, of course, was an attempt by the Crown to make Life Peers; or perhaps a Leader of the House might move a Motion to provide that the House would accept Life Peers if the Crown, in its wisdom, thought fit to create them.


My Lords, I am sorry to interrupt, as I know how free we are in your Lordships' House to say what we like in debate. But I have adhered strictly to the suggestion of the Leader of the House that we discuss the Report on its merits alone and leave out questions of the reform of the House of Lords. If we are going to debate the reform of the House of Lords, I think a Motion ought to be put on the Order Paper.


In spite of what the noble Viscount has said, I think we are entitled to debate the findings of the Report—I am not going outside the findings of the Report. I earnestly suggest to your Lordships that the powers of the House, as set out in the Report of the Select Committee, should be exercised to permit a limited reform of this Chamber. A combination of new Standing Orders with reference to leave of absence and the acceptance by the House of Life Peers would, I think, go a long way to meeting some of the criticisms levelled at this Chamber, and would provide the nucleus of its long overdue reform.

During its long existence the House of Lords has always carried out reform from time to time under its own powers and without legislation. The abolition of the right to vote by proxy in 1868 was carried out by the House by passing a Standing Order, in spite of the fact that it was stated on high authority that this right could not be removed except by Act of Parliament. Why should we not continue with our internal reform on the basis of this Report? The Report says: It is an accepted doctrine in the law and custom of Parliament that each House is the sole judge of its own powers, and the sole interpreter of its own privileges. Obviously, as the Report says, neither House is limited to what has been customary in the past, because on that basis no new precedent could ever be created, and in the past many precedents have been created. In the final words of paragraph 3 of the Report: the whole evolution of Parliament has been a story of ' broadening down from precedent to precedent.' May I suggest that we continue with the story on the lines that I have indicated, and carry out an internal reform of the House as soon as possible.

4.9 p.m.


My Lords, the noble Lord, Lord Teynham, will forgive me if I do not follow him in straying, as I think, a little beyond the actual findings of the Committee. Like other speakers. I should like to begin by offering my congratulations on the lucidity, the learning and the common sense of this Report, to its authors, who have so modestly refrained from appending their several names. It is only when they come to their suggested Standing Orders, or, to be quite precise, only when they come to ten words in the first of their proposed Standing Orders— that it is the duty of Members of the House to attend regularly, or as often as they reasonably can"— that they seem for a moment either to be using words without their customary exactitude and discretion, or, which I am sure is not the case, particularly after listening to the noble Earl, Lord Swinton, to have momentarily forgotten two of the most salient and distinctive characteristics of your Lordships' House. It is rather ominous that the ten words on which I venture to offer some criticisms should contain what is probably the only misprint in the entire Report. We have here the words: to attend regularly or as often as they reasonally can". I think "reasonally" is not a word to be found in the Oxford English Dictionary.


We did write "reasonably".


The noble Earl tells us that we have to substitute a "b" for the first "1". But there is an alternative emendation. I had half hoped that the Committee might have intended a word which would also have involved altering only one letter. Leaving the final "-ally" of "reasonally" as it is, we might substitute for the first letter "r" the letter "s", so that we shall have: to attend regularly or as often as they seasonally can". In a House which contains so many Members engaged in agriculture, or residing so far from Westminster that bad weather is bound to impair their mobility, that seems to me a most attractive alternative. I hope that before the historians of the future, already referred to by the noble Marquess the Leader of the House, get to work on this text with their apparatus criticus of alternatives and emendations, someone will tell us authoritatively whether we are to read "reasonably" or "seasonally." But either seems to be dangerous.

I am sure we are all agreed in sharing what was the underlying desire of the Committee—to encourage a more numerous attendance. But may I, in passing, remind your Lordships of something that is seldom said and needs to be remembered: that sparse attendances are very far from being a phenomenon peculiar to our time. In 1861, Erskine May commented on the House of Lords that its Benches were apt to be so thinly tenanted that they frequently presented the spectacle of a Select Committee rather than a deliberative assembly. And he noted as examples how in 1854 a Division was taken in a House of twelve all told, and how in 1860 an Irish Land Bill, which had occupied the attention of another place for several weeks, so that it obviously must have been a measure of some importance, was rejected in this House on a vote of seven to six. If, as we are often told, this House is in danger, from mere sparseness of attendance, of passing cut on its feet, we can at any rate console ourselves with the reflection that it is taking an unconscionable time about dying.

But do not let us be so concerned about quantity. Our debate so far has been largely concerned with the quantity of attendance. Do not let us forget quality. Do not let us, in the hope of encouraging more numerous attendance, so frame these Standing Orders that we risk positively discouraging all those busy and distinguished men with special knowledge and authority—men like the late Lord Keynes—whose contributions to your Lordships' debates over the generations have done so much to give this House its high reputation and its phenomenal vitality. I am sure we should all agree that a salient characteristic of this House, which perhaps distinguishes it from every other deliberative assembly in the world, is its ability to draw upon a reserve pool of unrivalled special authority, whatever the subject under debate.

I am not thinking only of great debates on major political issues. I am not thinking only of the late Lord Keynes on economics, or of the late Lord Trenchard on defence. Most of your Lordships will remember that a year or two ago the noble Viscount, Lord Stansgate, introduced an amusing and, occasionally, somewhat heated debate on the treatment by the Boy Scouts' Association of some Rover Scout in Bristol. It was entirely characteristic of your Lordships' House that the Chief Scout, the noble Lord, Lord Rowallan, attended and took part in the debate. We must be agreed that the presence at our debates of persons of unrivalled authority on their own subject is of the utmost value, not only to the House but to the country. But when, if I may speculate with the greatest respect, a noble Lord such as Lord Rowallan receives a Standing Order couched in these terms, inviting him to attend regularly or as often as he reasonably (or seasonally) can, I wonder how he is going to interpret it. He may well interpret it as a discouragement from attendance. Surely what we do not want is what the words as we have them here might well he understood to imply. We do not expect a noble Lord like the late Lord Keynes, or Lord Rowallan, or, I should have thought, a right reverend Prelate, to "clock in," whenever they happen to be able to spare an afternoon, to some debate on dentistry or road accidents. We do not want them coming here "regularly or as often as they reasonably can": we want them to come whenever there is a discussion on some subject on which they have special qualifications for enlightening the House.

If it be said that these are exceptions, that there are not many Keynes or Trenchards, and that we do not legislate for exceptions, I would reply that, on the contrary, in the reserve pool of speakers on which we can draw the experts of various kinds and degrees are extremely numerous. There is always a noble Lord who can tell us about jungle warfare, or motor racing, or the wage structure, or the Colorado beetle, and is invaluable to our debates, but who, because he has other duties to perform, cannot often be in his place. I would suggest that for all these noble Lords those ten words in the proposed Standing Order are somewhat inappropriate, for the simple reason that our claim on them is not a question of quantity but a question of selective attendance, when they can be useful. Since they cannot come often they should come whenever they can especially help us. I would, therefore, suggest some such alternative words as: It is the duty of members of the House to take a due share in the proceedings of the House. No doubt those words can be improved upon, but they seem to me, unlike the words we have before us, not to blanket the selective and specialist character of debates in your Lordships' House.

Such words as these would also be more appropriate to the other salutary and distinctive characteristic of your Lordships' House—I refer, of course, to the fact that, unlike many other assemblies, it does not consist of whole-time, or nearly whole-time, politicians spending nearly their whole life in the artificial atmosphere of Westminster and progressively cut off from all direct and frequent contact with the workaday life of the world outside. It is one of the great virtues of your Lordships' House that its debates can be attended by noble Lords who as doctors, or solicitors, or bankers or chairmen of county councils, are playing an active part in the everyday work of the nation. The whole-time politician is doubtless in close contact with organised opinion in his constituency—which means in close contact with all those active, eager and vocal people who naturally belong to committees and societies, and who are sometimes spoken of as "joiners." But paradoxically enough, many members of your Lordships' House are much more closely in contact with the general life and opinion of "non-joiners." It is the occasional attendance of noble Lords with regular duties elsewhere which is of such immense value, not only to the House but to the nation.

I trust that if any noble Lord who is farming in Lincolnshire or manufacturing cars in Coventry reads the Report of this debate he will not interpret anything said here as an invitation to him to "sign off" altogether. I think that for all these noble Lords also the words which I have ventured to suggest might be more appropriate. Having said that, all I have now to do is to renew my congratulations to the Committee on their very striking Report, and also to say how earnestly I hope that the proposals for changes in the character of your Lordships' House which we believe the noble Marquess the Leader of the House to have up his sleeve will prove, if and when they emerge, to possess the same genuine sense of history as informs this Report.

4.23 p.m.


My Lords, I should like to join in thanking and congratulating the Committee, the Officers of the House and everyone else who has contributed to the production of the document which is now before your Lordships. I wish also to add my expression of regret to those of noble Lords who have already spoken at the death of Lord Hastings, under whose guidance I did so much work in the precincts of this House in the 'thirties. Having said that, I should like to add that I intervene in this debate only on two very small points, which will be put very shortly. The first is this. The Report examined the powers of your Lordships' House in excluding, I believe, from your Lordships' House those Peers who are regularly absent from the House. I do not find in the Report any mention of a fact which is very common: that is, that your Lordships regularly exclude certain noble Lords from your Lordships' debates and from attendance in your Lordships' House. I myself expect shortly to be ordered by your Lordships to go to a distant part of the United Kingdom and there to sit on a Select Committee on Private Bills. During that time, if I were to attend in your Lordships' House I do not know what action your Lordships would take, but I am sure that my conduct would not be passed over without mention. Of course, I know it is true that one's consent is previously obtained, but the form it takes in the Journals of your Lordships' House is a command of your Lordships, which one obeys. That is a very small point but I just mention it. I am rather surprised that no one has touched upon it previously.

The other point is more important. I had occasion to study to some extent the Duke of Brandon's case, because that was, if anything ever was so, a political business. It was the resistance of a Whig House of Lords to the conversion of a Whig majority into a Tory majority by Queen Anne. Possibly it did not get much weight in the minds of the Committee, because I think that everyone who studies it feels that the action of the House was wrong. But the fact that it was wrong has no effect at all in a discussion on powers. During my study of that case I found something which bears upon the Committee's work. Your Lordships will notice, when you read the Report, that one point that the Committee is always repeating is that the Writ is the important thing. But in this House your Lordships have sixteen Peers who sit without a Writ at all, because the return of the Lord Clerk Register cannot in any sense be a Writ; it is not from above downwards; it is from below upwards.

I have often pointed out to Her Majesty's Government and to the noble Marquess the Leader of the House that if he has a project of reform of this House the sensible thing to do is to right a very ancient and acknowledged wrong and make all Scottish Peers Members of this House. It would hardly increase the numbers, and it would give him a homogeneous body to deal with. The answer one always gets is that such a step would be contrary to the Act of Union. During my study of the Duke of Brandon's case I found this entry in Volume 19, column 365a, of your Lordships' Journals which is practically contemporary with the Act of Union: That the Sitting of the Peers of Great Britain, who were Peers of Scotland before the Union, in this House, by Election, is alterable by Parliament at the Request of the Peers of Great Britain who were Peers of Scotland before the Union, without any violation of the Union. I hope that when the proposition is put forward on a future occasion it will be examined on its merits, and not as a breach of the Act of Union, because that I think clearly it is not. Having said that, I will conclude by expressing the hope that Her Majesty's Government may take the proposition into consideration and remedy a very ancient grievance. Apart from that, I have nothing but praise and gratitude for the Report.

4.29 p.m.


My Lords, while I congratulate the Committee on their achievements, I should like to say a few words in defence of the absentee. I have been a Member of your Lordships' House for a quarter of a century, and have always been a persistent absentee. I believe in absentees. I do not stand here in a white sheet. I do not consider that I show any disrespect to your Lordships' House when I take no part in matters that do not concern me, and still less when I take no part in things which I do not understand. On the contrary, I look upon my absence on such occasions as an advantage to your Lordships' House.

Absenteeism is deeply embedded in our national way of life. I have sat on a committee of which the Prime Minister is a member. Naturally, it is very rarely that he can attend. For thirty years I have been trustee of a well-known institution of which the Lord Mayor of London is an ex-officio member. I cannot recall that he has ever attended. These great personages are too busy to attend, but they add prestige to any committee and they could attend, if there were any great emergency. The system has been extended to the Cabinet and many Ministers attend only when they are called for. Those of us who remember the position of the First Lord of the Admiralty in old days, may well be astonished at this constitutional development of satisfactory absenteeism.

Perhaps there are a few Members of your Lordships' House whose absence might be preferred to their presence, but the large majority of us absentees are proud enough to believe that what we do outside this House is of value to the community. The fact is well known that al reputable institutions look to your Lordships' House to provide their chairmen and presidents. That alone involves absenteeism. But surely we do not need the constant attendance of a large number of uninterested Members, forced here at the expense of their valuable outside occupations. The noble Marquess who leads this House can call "spirits from the vasty deep"—and, what is more, they come when he calls. But, as your Lordships will have observed, the noble Marquess, who is usually the epitome of wisdom, makes very little use of his occult powers; indeed, the last time he was constrained to use them—and your Lordships' House was flooded with strange faces—was for the debate on commercial television; and it has since become clear to everybody that it would have been better if those travelling voters had remained in their woodland fastnesses.

But the virtues of absenteeism are not confined to great occasions. If there is, for instance, as there shortly will be, I believe, a debate on the Imperial Institute, it would be better if the noble and learned Earl, Lord Jowitt, whose belief that architecture expired on the deathbed of George IV, and the noble Earl, Lord Munster, who when he sees a Victorian building has the Goering-like reaction of reaching for his pickaxe, should be busy on one of the many other activities with which those noble Earls benefit the community. The Conservative Party nowadays are always trying to change things. As a Liberal, I implore your Lordships to leave things as they are. Our rule has always been that only Members who know something about the subject under discussion should speak. Other places have other rules, but our rule has made your Lordships' House the best debating assembly in the world.

4.34 p.m.


My Lords, every one of your Lordships must be grateful that the noble Viscount who has just spoken broke his own rule about absenteeism. Had he not done so we should have been deprived of an extremely humorous, if not relevant, contribution to this discussion. Like those of your Lordships who have preceded me, I have very little to say, being somewhat silenced by the injunction that we should keep strictly within the limits of this Report. There have been many debates upon the wider subject of House of Lords reform, and many of your Lordships who have spoken to-day have participated in them. Personally, I have not had the good fortune of participating, or even of being present at any of those debates, and I therefore perhaps lack the constitutional qualifications to play a constructive part in this one. But I should like to say a few words on what I consider to be the practical aspects of this Report.

It comes as a surprise to learn, as we do learn, that this House has no inherent right to do all that it might consider requisite in connection with the attendance of its own Members. All other assemblies seem to have that right, and the House of Commons certainly has. Two questions that were put to the Crown Counsel, Mr. Squibb, in the course of the evidence, impressed me. One was put by Lord Campion, for so many years the distinguished Clerk of the House of Commons. He asked: … it has been laid down in the House of Commons that the power of suspension, which is partial exclusion, is inherent in the House of Commons. If that is so, might that not be a valid analogy?"— that is, an analogy for this place; and the answer was: Yes, my Lord, I think it would be … I leave out what is superfluous.

Again, the noble Viscount, Lord Hail-sham, asked: … there is no authority for the proposition that in matters of the regulation of its own proceedings the powers of the Upper House differ in any way from the powers of the Lower House? and the answer was, "No"—or I should have thought that the answer was "No," but, in fact, my Lords, there is a very marked distinction. The House of Commons does not hesitate to suspend or to exclude its own Members and thereby, in cases in which it judges fit, go to the extreme length of depriving the constituency concerned of its representation. But we in this House are far more solicitous of our Members and desirous of protecting them against any arbitrary procedure, even though that procedure be our own. That, it seems to me, is the significance of the Bristol case, and it is clear from this debate that very few, if any, of your Lordships would desire to change that established practice. We do not exclude Members as part of our Standing Orders procedure.

It seems to me odd that this Committee—but perhaps it was involved in its terms of reference—examined whether it would be practicable to exclude a Member in order to compel his attendance. From the discussion this afternoon, it is plain that very few Members of your Lordships' House would desire to proceed to that extreme, and that your Lordships value a large membership on which you can draw, to your Lordships' great illumination and sometimes entertainment, as has been the case this afternoon. Your Lordships evidently do not desire to change that. But what about those Members who do not wish to come and never will come to this House? Is it fitting that they should act in continuing defiance of the injunctions of a Writ, perhaps the most solemn instrument in this land —a Writ of Summons from Her Majesty to come and give their counsel here? Is it right or reasonable? Or has not the time come when, with Her Majesty's consent, the terms of the Writ should be amended to take account of the possibility of applying for leave of absence or, in extreme cases, of withdrawing the Writ altogether?

As a first step, this Committee has suggested a personal delivery of the Writ, and then supplementing it with a letter. It seems to me that that brings into greater relief the gravity of the contempt, because a Peer who had neglected the Writ and did not answer the letter would be showing complete defiance. But even if he did answer the letter, and to the extent to which the letter is answered, how have your Lordships advanced? I may say that I am in favour of the recommendations of the Committee because they had no powers, they say, to go any further. But how would your Lordships' attendance be better regulated as a result of sending a letter? The letter would say, "If you do not answer this letter you will he presumed to have asked for leave of absence, and if you do answer it, all you need say is that you will come as often as you can." That is exactly the position now, and I therefore fail to see how we shall have got much further. We shall still be left with the problem that confronts us to-day.

It seems to me that in some way we are putting the cart before the horse. If your Lordships desire the attendance of Members who could and would come here, then it should be a preliminary duty upon us, or, at any rate, upon Her Majesty's Government, to remove the obstacles in the way of their attendance. For that reason, I think the speech of my noble friend Lord Teynham was apposite. If you are going to say, "Here is a solemn Writ; here is a Report which suggests that the Writ should be supplemented by a further reminder," you must put it within the power of those Members who could and would attend to come here, and you must allow them, as do all other institutions, some means of defraying their expenses.

I know and realise that there is no recommendation in this Report about Life Peers, but it was suggested by my noble friend Lord Teynham that our attendance might be improved and our service enhanced if Life Peers could be brought here. It is equally true that this Committee said that it would be within the power of this House to re-examine that question. Now both the question of Life Peers and the question of powers in relation to attendance seem to me to be essentially domestic issues to this House. They do not involve any fundamental House of Lords reform, any reversal of the constitution. They are not a challenge to the other House, and I should have thought that we could assert our right to deal with them in our own way.


Who is to make these Peers, the Crown or the House? The noble Lord calls it a domestic issue for the House.


I am not endeavouring to debate the whole issue at all; I am only asserting that it is a matter within the domestic competence of this House, as was the Wensleydale decision. I am only saying that this is essentially a domestic matter and does not touch the basis of the British Constitution. It is a matter of judgment—of our judgment of what is within the law and custom of the Constitution—and it would be, I submit, within our competence to insist on it being so. While we feel grateful to this Committee and the painstaking Report that it has produced, we should, by proceeding on the lines which I have mentioned, emphasise our desire to serve the State in the best possible way and remove those restrictive and archaic practices which stand in the way of our doing business in the most efficient manner.

4.45 p.m.


My Lords, I rise for one moment to say that I still do not understand why this high-powered Committee was set up. Was there a great lack of Members attending this House? Was there any feeling in the country that we were not doing our duty? I know one reason for it, and that is the difficulty experienced by the Whips, on both sides of this House, in getting Members to serve on Committees. That was the real reason, not the attendance in this House. We have to supply so many noble Lords for Committees, and the difficulty which has been broached by many noble Lords is how they can afford to serve, and when. That problem has to be faced. But as regards the attendance, why we should be forced to attend, why this Motion should be brought up, or why the matter ever went to this high-powered Committee is a mystery to me.

There can be but one reason. There are certain people who wish to see the reform of this House. They see it as a big structure, and they see that it is not easy to bring in reform. The noble Marquess who leads the House is one, and the noble Viscount, Lord Samuel, who is my master at times, is another. But they use a weapon which is not foreign to the noble Marquess; that is, the death-watch beetle. You can gnaw away at the thing but you cannot fight it clean ahead. I regret these methods and the fact that we are now saying and publishing all over England that we are seriously incompetent because we cannot get people to come here. It is a mistake to say that when it is not true. But to the noble Lords who want reform it is not a mistake to nibble where they dare not strike, and where they fail in all their efforts to strike. I feel strongly that until there is a real feeling that this House has failed on any big subject to fulfil the duties which the country expects of it, it would be a mistake to try to alter it in this way.

4.48 p.m.


My Lords, I intervene for only two or three minutes, and at the outset may I add a word to what has been said in so many quarters about the late Lord Hastings. It would obviously be impossible for me to say anything about him as a Member of this House, but I knew him well as a great citizen of Norfolk and of Norwich. I am certain that in that county what has been said in your Lordships' House this afternoon will be welcomed. If I may say so, I think this is one of the ablest Reports I have ever read. It seems to me to combine in a short compass a great deal of substance, the necessary learning on the subject and some quite specific and clear conclusions. I have for many years looked at any documents from Parliament which dealt with constitutional matters because it so happens that in 1934 I argued what was, I think, the last case of constitutional law to come before the High Court. If I may say so, I think that those who took part in the work of this Committee have performed a most able work and deserve, as they have received, the gratitude of this House.

I do not know perhaps whether it might not be useful that those of us who came with fresh minds, if we intervene in this debate, should indicate whether we favour some new Standing Orders in this matter. Let me say at once that I think it would be a good thing that we should have further Standing Orders. I think that the apparent disregard of the urgent terms of the Writ of Summons is not a very seemly thing, and I believe that new Standing Orders would provide an appropriate method of dealing with a very difficult problem. Having said that, may I say that I have a good deal of sympathy with the points made by my old friend Lord Elton in his criticism, or comment, on the wording of one sub-paragraph in paragraph 33. I also felt a great deal of agreement with the brilliant and witty speech of the noble Viscount, Lord Esher. I do not regard either the speech of Lord Elton or the speech of Lord Esher as any ground whatsoever against having new Standing Orders on the matter, but merely as a ground for carefully considering and perhaps modifying, as Lord Elton himself suggested, the terms of one of the proposed Standing. Orders. Indeed, to be fair to the Committee, these are not drafts; they are only suggestions, and I am sure that those who sat on the Committee would agree that there would be nothing contrary to the general tenor of their recommendations if the point that the noble Lords, Lord Elton and Lord Esher, had in mind were given effect to by suitable words in any new Standing Orders on the subject.

I am hound to say that when the noble Viscount, Lord Esher, told of the various I bodies to which he belonged and with which various honourable members were connected, sometimes ex officio, I was reminded of the Board of Trade, in which I served as Parliamentary Secretary for some years. Among the members of the Board of Trade are, I believe, the Archbishop of Canterbury and possibly the Speaker of the House of Commons, but neither of those eminent gentlemen ever attended our deliberations. I think that, for the reasons so admirably brought out in the Report, there is a good case for new Standing Orders on the subject, and I very much welcome what my noble friend the Leader of the House said on the subject, which showed his general sympathy.


Before the noble Lord sits down, may I ask him whether he is certain of his facts about the Board of Trade? I always understood that The Secretary, you must allow Is grossly overpaid; There never was a Board—and now There isn't any trade.


It was not the Secretary of whom that was said. My friend, Sir Alan Herbert, wrote about the President. The words ran: This high official, all allow, Is grossly overpaid. There wasn't any Board, and now There isn't any trade. That referred rather to the de facto than the de jure position.

4.54 p.m.


My Lords, as the subject of the inquiry of the Committee was really the extent of the constitutional powers of this House, perhaps it is fitting that, as one of the Law Lords who sat on the Committee, I should just say a few words. I do not think it is really necessary for me to speak at all, but I should like to underline and pick out what seemed to me to be some of the salient points, or perhaps I should say the underlying points of greatest importance, in connection with this inquiry.

The Report says on its very first page that this House is the sole judge of its powers. But I think the important word there which must be underlined is the word "judge," because it is quite clear that before you come to the question of whether any proposed change would be good policy or had policy you must fist ask yourself whether the proposed change is permissible within the scope of the existing law and custom of the Constitution, or, as it is sometimes put, law and custom of Parliament. From a long series of precedents and practice I believe two principles emerge which are, I venture to think, reflected in the Report and which are of equal and primary importance. The first is that every Peer has a right to receive a Writ; and it follows from that that he has a right to seat, place and voice in Parliament; and, in the view of the Committee, it follows from that that he has a right to vote in this House.

The noble Lord, Lord Saltoun, raised the position of the Scottish Representative Peers. I do not think we felt it necessary to consider them separately, bat I would take it upon myself to say that in my view the right of the Scottish Representative Peers to sit here and vote, notwithstanding the fact that they do not come by Writ, is as good as the right of any other Peer. Therefore one may, I think, say without fear of contradiction that nothing but an Act of Parliament can take away the right of any Peer to sit and vote in this House. But then the second principle is equally valid: that this House is master of its own procedure; and that covers, as has been said, a very wide field indeed.

It was, I venture to think, rightly thought that that covers the right of this House to abolish, not in form but in substance, the use of proxies. It certainly covers the right of this House to maintain order, in the widest sense of the word, in our deliberations and, if necessary (it has not been necessary for a long time, but the power is not in desuetude), to enforce its decision by any recognised method of punishment. If such a recognised method of punishment entails absence from this House for a period, that is no objection to it. Certainly this House is able to punish any contempt of this House. The only instances that we were able to find where the House took action by reason of Members not attending debates was where the House had previously specially ordered either those Members or all Members to attend on a particular occasion; and undoubtedly that power is not in desuetude. But we came quite clearly to the conclusion that one must draw a firm line between a possible Standing Order which might have the effect of entirely excluding a Peer from voting and one which merely modified or altered the method by which he could exercise his right and privilege.

We came to the conclusion—and I do not think we had any doubt about it—that the possible scheme which is set out in detail in the Report would not infringe the constitutional rights of Peers in any way, but that to go much further might well infringe their rights. As is said in the Report, the purpose is to relieve Peers of their obligations, rather than to diminish their rights. I agree entirely with what was said by the noble Lord, Lord Elton—and I expect many of my colleagues will also agree—that the wording of the proposed scheme in the Report may not be as good as it should be. None of us would claim that that proposal is word perfect. No one, certainly not I, would dissent from the view expressed by the noble Lord. I hope that any Standing Order which is ultimately drafted and agreed by this House will not be read by any noble Lord in the sense in which the noble Lord, Lord Elton, thought that this draft might be read.

There is only one other matter that I should like to mention, and there only to re-emphasise what I said at the beginning of my remarks. Something has been said about the Wensleydale case. We were quite clear that it is competent for this House to re-examine the Wensleydale case if it should choose to do so, but the basis on which that re-examination would take place would be not that this House should consider as a matter of policy whether Life Peerages were desirable but, in the first instance, that it would consider whether the creation of a Life Peerage, with a resulting right to be summoned to this House, was within the existing law. As it is said on pages 4 and 5 of the Report, our reexamination would be a revision in the light of further and better argument or evidence of the House's view of the law and custom of Parliament and the House should have due regard to what it considers to be the true constitutional position. I have not attempted to make up my mind whether the previous decision in the Wensleydale case was right or wrong—there is obviously much to be said both ways—and I have not thought it right, proper or necessary to consider that matter. But, of course, it is tied up with the other matter of whether it would be desirable to have Life Peerages. One certainly could not come to any conclusion in favour of a Life Peerage without answering both of those entirely separate questions in the affirmative. I do not think that I can usefully contribute anything further to this debate, but I wonder whether I shall be in order in saying how much we owe to our Chairman for the clarity and, if I may use the word, utility of the Report which is now in the hands of Members of your Lordships' House.

5.4 p.m.


My Lords, your Lordships will have been hoping to hear something on this matter from the noble Viscount, Lord Hailsham, who took a most active part in the Committee and was one of the principal authors of this Report. If he had spoken, I feel sure he would have done what I am about to do now and what the noble and learned Lord who has just spoken has done: that is, pay a tribute to our Chairman, Lord Swinton, who conducted the affairs of the Committee with the utmost efficiency and to whose leadership the unanimity and completeness of the Report are mainly due. Let me also join those noble Lords who have expressed sorrow at the death of Lord Hastings. To us, who had been working week by week with him on this Committee, in whose work he had taken a very full part, his sudden and wholly unexpected death came as a shock. He had been a most valued servant of this House for very many years.

I hope it will not be thought outside these walls that we have been engaged to-day in a debate on the reform of the House of Lords. We have not. If we had been discussing the reform of the House of Lords, both the Leader of the Opposition and I, and also my noble friend the Leader of the Liberal Party, would have had a great deal to say and on quite different lines from those which the debate has taken this afternoon. The noble Lord, Lord Teynham, seemed to me to overstep a little that limitation, in speaking of the virtues of Life Peers. One or two other noble Lords, as, for example, the noble Lord, Lord Sherwood, did likewise in deprecating any reform at all. I thank the noble Lord, Lord Sherwood, for his graceful compliment to me by comparing me with the death-watch beetle, but as he included the noble Marquess, the Leader of the House, I feel myself in good company. While thanking Lord Sherwood for that, I must express my disagreement with his view, which is also that of the noble Viscount, Lord Esher, that all is for the best in the best possible of worlds and there is no need to do anything at all. They do not seem to think it is at all odd that there should be an assembly of 800 Members, which is one-third larger than the numbers in another place, with an average attendance of about eighty and a frequent attendance of some thirty or forty, a situation that has been described by a Conservative statesman, the present Leader of the House, as one of "dying of inanition." it is hardly a compliment to the House to wish to see that death by inanition proceeding for the reason that they hold that all is for the best possible in the finest Legislative Assembly in the world.

The late Dean Inge made one observation which I venture to mention to your Lordships, though I do not attach importance to the actual words that he used and I certainly shall not apply them to my noble friends. He said: "There are in this world two kinds of fools. One says: 'This is old; therefore it is good.' The other says: 'This is new therefore it is better.'" From either of these follies I trust that the Liberal Party will save themselves, and I hope that we leave to others both the one form of unwisdom —I say "unwisdom" in order to be more graceful—and the other.

The Report of this Committee states that there is, in its opinion, one course of action that would be possible, legal and proper, if the House so desired, and that is to send out a circular letter to Members of the House to ask them whether they have an intention or desire to take part in the work of the House. It is believed that there is a considerable number who are not able to attend, who do not wish to attend and who do not propose to attend. The suggestion is that we should find out how many of these there are, and who they are. It is not concealed that the object is to create, or to establish, or to ensure a working House of Lords and to know who the Members are. It may be that that would facilitate the creation of a considerable number of Life Peers who would greatly strengthen the power and the value of the House; but that is a subject that we are rot discussing to-day. In fact, to many of us the suggestion appears to be a thoroughly English way of doing things; in order to ensure that these Members stay away, we insist that they shall come in.

The question of fie terms of the letter will need careful consideration. The general spirit of it seems to be rather that of a letter that I remember was once reported in the Press as having been read at a county court. A firm of tailors had written to one of their customers in these words: "Sir, we regret to have to inform you that we have been obliged to issue a writ against you in the county court for the amount of your unpaid account of £23 1s. 7d. Trusting to be favoured with the continuance of your esteemed commands, We are, your obedient servants, So-and-so." I think the tone of the letter must be a little like that, and it will not be easy to devise it.

The noble Lord, Lord Elton, in a speech with which I found myself in much more agreement than I was able to do on the last occasion when we debated together this subject of the House of Lords, made out a strong case, as he did before, for what may be called the panel system—for the idea that these 800 members are in effect a panel out of which can be drawn on particular occasions and for particular purposes persons of particular authority. It is true we must be careful that we do not destroy that panel system, and do not exclude, or indicate that we do not want the help of, experts who may wish to specialise on particular subjects. But I should not think it would be impossible to devise a letter, perhaps modifying slightly the terms of the one suggested in the Report, which would cover that purpose. For the rest, I think that there is nothing further that I need say on this occasion. I think that the Chairman, the noble Earl, Lord Swinton, and the members of the Committee may feel gratified at the reception which has been given to the Report by your Lordships' House this afternoon, and we trust that action will be taken upon it.

5.13 p.m.


My Lords, the debate has been so agreeable indeed, opinion has been almost unanimous—that there is not much for me to say. I should be less than courteous if I did not acknowledge the kind things which those members of the Committee who have spoken have said about me. If it is a good Report, it is a good Report because we are all equally concerned in it, and certainly I can say that nobody ever had a better or a more agreeable team to work with. I think also that the whole Committee may be well satisfied with the reception which the Report has received this afternoon.

I think there have been only two objectors or partial critics. If I am to do the noble Viscount, Lord Esher, justice, I must collect his vote as a genuine objector: "Let us have no change," he says. It is a great thing that the Liberal Party should never change. But the noble Viscount was well trounced by his noble friend Lord Samuel. I am not quite sure where Lord Sherwood stood, or sat—whether it was on the fence, or on which side of the fence he came down. I think I can satisfy Lord Elton more easily. On the whole, he does not object but he is anxious not to exclude the occasional attender. But so are we. I do not claim that our words are perfect; we are not trying to draft the Standing Order. But if the noble Lord looks at paragraph 34, in which we were dealing with the occasional but valuable attender, I think he will find that the words are probably better suited than those in paragraph 33. In paragraph 34 we use the words: …when a Peer attends as often as may be consistent with the particular circumstances in which he finds himself… Fortunately, we are an illogical but practical country, and, I hope, an illogical but practical Assembly. We know what we want in this matter. We know that we want the man who can be useful, to come here when he can. I am perfectly certain that if we know that, we can perfectly well draft our Standing Orders to make it so. After all, who is the judge of the Standing Orders?—we ourselves; and provided that we get a Standing Order which gives us what we want I am quite sure that that Standing Order will work.

As regards the bulk of the Peers who would be affected by it, let me make quite clear to one noble Lord who spoke that we do not need any alteration in the Writ to give complete authority to apply for leave of absence and to grant leave of absence. The Writ has always been there, more or less in the same words. Always, whether it was granted by the Crown up to the beginning of the 17th century or by the House ever since, the right to grant leave of absence has been there, and it is that combination of the right to grant leave of absence with the duty to attend, both of which are of complete antiquity and both of which exist to-day, that we think we can get what the House wants. After all, I believe that the great majority, not only of the Peers who attend the House but of those who do not, would be only too glad to have their position regularised in accordance with what is the law and custom and practice of the Constitution.

If you send out letters to Peers at the beginning of a Parliament or of a Session and ask them whether they want to attend, making it clear that they can come occasionally when circumstances permit, the Peer who does not want to come—which is the case with the bulk of people villa would be affected by this proposal—would, I am quite certain, say, "I do not mean to come, but I am glad to have my position regularised." In that way, I think certainly the vast majority of the House would like to see these Standing Orders put into effect. I have no doubt that, if that is so, it would be done by general agreement, and the House would then see that those Standing Orders were in the form it liked. I do not know whether we should have reformed the House of Lords, but we should certainly have done a useful day's work. I wish to thank the House for the reception it has given to the Report of the Committee, and, as we are so far agreed and there are no Papers to move for, I beg to withdraw the Motion.

Motion for Papers, by leave, withdrawn.