HL Deb 19 December 1963 vol 254 cc380-9

2.27 p.m.

THE LORD CHANCELLOR (LORD DILHORNE) rose to move, That there be referred to the Committee for Privileges the question whether, and if so in what circumstances, proof of matriculation of arms before the Court of Lord Lyon King of Arms, being arms appropriate to a Peerage in the Peerage of Scotland, may properly be accepted as sufficient evidence of entitlement to that Peerage for the purpose of issuing a Writ of Summons to this House in right thereof.

The noble and learned Lord said: My Lords, I am sorry to have to trouble your Lordships with this Motion, but a difficulty has arisen on which I. think it advisable—and I hope your Lordships will agree—that the opinion of the Committee for Privileges should be obtained. As your Lordships know, under the Peerage Act all holders of Scottish Peerages have the right to receive a Writ of Summons to this House. One of the very important duties of the Lord Chancellor is to issue on behalf of the Crown Writs of Summons to Peers to attend this House. The Lord Chancellor of the day is under obligation, both to the Sovereign and to this House, to issue a Writ only if he is satisfied that the person claiming it is the holder of the Peerage in question. If I were to issue a Writ to someone who is not a Peer, and that person were to sit in this House by virtue of the Writ, the effect would be to create a new Barony by Writ, and I am sure your Lordships will agree that every Lord Chancellor must take the greatest care not to do that. My predecessors and I have, therefore, always demanded strict proof of entitlement from a claimant to a Peerage who desires the writ to be issued to him on the decease of the previous holder.

He is required to produce the necessary evidence and all the relevant certificates of birth, marriage and death to establish that he is the nearest heir to the Peer who last sat in this House in the right of the Peerage in question. If this proof is adduced every time a new heir succeeds, it is not, in most cases, at all difficult for the claimant to establish his title, since he is unlikely to have to go back for more than one or two generations in order to trace his succession from an ancestor who himself proved his right to receive the Writ. There are cases where the claimant has to prove his descent from a remote ancestor, but they are exceptional. Your Lordships will, however, be aware that, until the passing of the Peerage Act, 1963, no Scots Peer has ever been summoned by Writ to this House in the right of his Scots Peerage. The sixteen Representative Peers of Scotland were elected by the whole of the Scots Peerage and their election was certified to the House by the Lord Clerk Register; no Writs of Summons were issued. Those Scots Peers who are also Peers of the United Kingdom do, of course, receive Writs of Summons, but not in the right of their Scots Peerages, so the Lord Chancellor has never been furnished with proof of entitlement to a Scots Peerage.

As I have said, it is my duty to issue a Writ of Summons to a Peer of Scotland. Not only are the rules which have governed the devolution of Scots Peerages very different (for example, there is no co-heirship between daughters, and a surrender and re-grant with a new destination was permissible) but also Scottish Peerages are of very considerable antiquity. They all date back to before the year 1707, and some are very much older.

My Lords, I am most anxious to avoid putting any Scots claimants to a Writ of Summons to great inconvenience and expense in proving their claim. As there is nothing to constitute what the lawyers call "a good root of title" corresponding to the receipt of a Writ of Summons to this House, it may be necessary to require not only proof of the original grant of the Peerage but also of descent so as to establish that the claimant is, in fact, the holder of the Peerage. I have been anxious to find some other way in which the claimant to a Scottish Peerage can establish his claim in order to avoid the expense and trouble which such a procedure would involve.

I have thought it proper—and I hope your Lordships will agree—to issue Writs of Summons to those who have sat in this House as Representative; for this House by admitting them has recognised them as Peers. I have also thought it right to issue Writs of Summons to those who have established that they are the heirs of former Representative Peers, that is to say, I have treated sitting as a Representative Peer as a proof of that good root of title. In some cases the right to a Peerage has been confirmed by this House after proceedings before the Committee for Privileges: a case in point is that of my noble friend Lord Dundee, and in such cases no difficulty arises.

There remain, however, a number of Scots Peers for whom these forms of proof are not available, including some who already sit in this House by virtue of inferior or less ancient English or United Kingdom titles, and who may desire to be summoned in their superior rank, or in the right of their more ancient Peerages of Scotland. It is my duty to refuse to issue a Writ of Summons if the claimant's right to one is not clearly established. It is then open to the claimant to petition Her Majesty, and, as your Lordships are aware, such claims may be referred to the Committee for Privileges, which is traditionally the authoritative body for the determination of Peerage claims, including claims to Scottish Peerages.

My Lords, if I refused to issue a Writ of Summons to any Scots claimant, the matter might come before the Committee for Privileges. Such a claimant might rely, and rely only, on the fact that he held a certificate of the Court of Lord Lyon King of Arms that the claimant has matriculated his arms as a Peer. In Scotland the right to bear arms is a legal right over which the Lyon Court has jurisdiction, and if the claimant satisfies the Lyon Court that he is the holder of a Peerage, then he is entitled to add to those arms insignia of nobility appropriate to the Peerage. If I understand the position correctly, Lord Lyon issues his certificate only if the claimant can prove strictly his descent from the last person who matriculated the arms in question and the devolution on him of the Peerage.

If the Committee for Privileges held, on a claim based on matriculation, that the fact that the claimant had matriculated the arms of a Scottish Peerage was proof of entitlement to a Peerage, then that would be a precedent to which I should have to have regard. But without a decision by the Committee for Privileges on this issue, I am sure it would not be right for me to issue a Writ of Summons where the claim is based on proof of matriculation of arms. To do so would be a departure from the practice of my predecessors, in that I should be acting on another's authority and without examining the evidence myself. But if matriculation can properly be accepted as a good root of title (and your Lordships will appreciate that I am not seeking to express an opinion on that point), then it will avoid putting the claimant to an ancient Scottish Peerage to the inconvenience and expense—which may be considerable—of establishing to my satisfaction not only the grant of the original Peerage but of the fact that it has devolved on him or her.

My Lords, a very considerable time would elapse before a test case by a claimant basing his claim on matriculation would come before the Committee for Privileges for determination, and it is to avoid that delay, and to avoid the expense to which such a claimant would inevitably be put, and with the object of securing the opinion of the Committee for Privileges on this question that I am moving this Motion. I beg to move.

Moved, That there be referred to the Committee for Privileges the question whether, and if so in what circumstances, proof of matriculation of arms before the Court of Lord Lyon King of Arms, being arms appropriate to a Peerage in the Peerage of Scotland, may properly be accepted as sufficient evidence of entitlement to that Peerage for the purpose of issuing a Writ of Summons to this House in right thereof—(The Lord Chancellor.)

2.37 p.m.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, I think the leaders of all the Parties in the House have had an opportunity of consultation with the Lord Chancellor on this matter, and I believe it can be said—the noble Lord, Lord Rea, will speak for himself—that we are in broad agreement with what the noble and learned Lord has said this afternoon. I think the only right thing to do is to have this matter considered by the Committee for Privileges, so that the question of the authority upon which the Lord Chancellor acts can be established without possible criticism afterwards.

LORD REA

My Lords, I should like to support what the noble Earl the Leader of the Opposition has said, and to thank the noble and learned Lord on the Woolsack for his courtesy in consulting both of us in this matter. When this question was first put before us it bristled with difficulties, but I confess that my first reaction was that if a Member of your Lordships' House (to quote fairly recent instances, like the noble Lord, Lord Strabolgi, who established a very old Barony, or our noble friend the Earl of Dundee and other noble Lords) has been put to great trouble and expense, it seemed to me unreasonable that Lords with perfectly good title from the other side of the Border should not take the same steps and the same trouble to establish their position. But as the Lord Chancellor has pointed out, in many cases their titles go back into the very distant past. They have been noble and respected titles for centuries, and it would not only be a great trouble and expense but, I think, ignominious for them to have to prove a very ancient title which was accepted in both countries.

In that case, although I think there is a possibility of accepting Lord Lyon's certificate of matriculation as proof, there is a possibility that that is not perfect entitlement. We have the safety valve, so to speak, of the Lord Chancellor's veto if he is not himself perfectly satisfied that it is a good claim. Therefore, in taking an intermediate course, I think that, as this is a matter which arises once and for all and will never rise again, it will be only just and generous of us to take the easiest line for those Scottish Peers who are so well established in their own country.

LORD SALTOUN

My Lords, I have the greatest respect and the greatest confidence in the Committee for Privileges, and I do not seek to oppose this Motion in any way. But many of my colleagues have been rendered very uneasy by this, and I hope that, as I am not a Member of the Committee for Privileges, your Lordships will bear with me for a few minutes while I explain their feelings on this matter.

If I fall heir to an estate in Scotland which is hereditary, I have to be served heir to my predecessor. I take an action in the Court of Session to prove that I am the rightful heir, and the Court exacts proof just as meticulously and painstakingly as does a court in this country, in the South. If I lay claim to a Scottish Peerage, the only difference is that I go to the Court of the Lord Lyon. I do not go to the Sheriff Court. The Lord Lyon is just as meticulous in the proofs that he demands; and the establishment of that proof is just as difficult. I should like to say that, with the Lord Lyon, this has been so for 600 years and more. For at least that time Scotland has had one great export—probably a greater export than any other: the export of men. The point of the Lyon Office was to label a man who was exported, and people used to go to the Lyon Office and get what was called a birth breve, which established exactly who they were and their position in Scotland; and these birth breves were accepted currently all over the Continent.

Let me give two brief examples. The first is Loudon, who became a Field Marshal in the Austrian Army in the eighteenth century, and had a Hapsburg princess given to him in marriage after she had been refused to an Austrian Count who was considered not good enough; and the second is the King who was the greatest King in Europe at the time, Louis XIV of France, wanted to confer a favour on his great Minister, Colbert, and Colbert asked to be made a Marquis. The King could not do that because Colbert could not establish a pedigree, so they decided to go to Scotland and see if they could find a family which would father Colbert. They did find a family—though it was not, I hasten to say, the family of my noble friend Lord Colville of Culross. The matter was held up because the Lord Lyon said "No" and stopped it. He said: "I will not sully my fair name by acknowledging a pedigree of this kind" The great King had to be satisfied, and therefore they had recourse to Parliament. Parliament settled it, and order the Lord Lyon to register the pedigree or something of that kind. But that shows the way in which the Lord Lyon has acted for hundreds of years.

If I go to the Lord Lyon and establish my pedigree it is not a very expensive matter. It does not cost a great deal, and if' the Government, or the noble and learned Lord who sits on the Woolsack, were to wish to be more secure he could instruct the Lord Advocate, who is a member of the Government, to take action, probably, I suppose, in the Court of Session, to reduce that decreet of the Lyon Court. That would not be, as I say, a very expensive procedure and one would get certitude that way.

I do not say for a moment that we should not refer this matter to the Committee for Privileges, but that is the kind of thing we are referring to it. There is, however, another matter which bears upon the subject, and that is this question of the election of the Peers who vote. I am sure the noble and learned Lord who sits on the Woolsack will bear me out on this: that from the very beginning Peers' elections in Scotland were attended with a very great deal of difficulty, and I think the reason was that the Lord Lyon and his Court were not brought into the arrangements for Peers' elections. They were put under the Lord Clerk Register, without any reference to the Lord Lyon; and I believe that even the Lord Clerk Register, who is sitting here, will agree that the Lord Lyon is privileged to be present at a Peers' election only by invitation: he has no right to be there. For that reason, in the old days people used to go up with their friends and claim Peerages, and claim to vote.

I remember Lord Rutherford as a case in point, though I do not think that that Peerage exists to-day. If my memory serves me (and it is a long time since I read the authorities), those cases were brought to the Committee for Privileges here and so settled. But I am quite sure that for a long time past actions of that sort have not taken place because I am quite sure that, before I was allowed to vote in a Peers' election, I had either to be acknowledged by the Lord Clerk Register, who knows me, or, alternatively, produce a decreet of the Lord Lyon Court to show that I am a proper person to vote. That has always been the safeguard there.

Therefore, I think there are two difficulties ahead of us. As your Lordships know, it is not possible—and we have been told this on so many occasions by the greatest authorities—for your Lordships, or any power in the State, to annul a Peerage. The great thing to avoid, it seems to me, is that anybody who is properly entitled to a Peerage should fail to get a Writ of Summons; because the one thing that made me, at least, vote for the Peerage Act was that I did not want anybody in future to be held in a prison, as I have been held all my life in prison and I did not want Her Majesty any more to have what I might call Stateless subjects, as is the case if there is a Scottish Peer who has no seat in Parliament; who cannot go to the Commons and can have no place in the Lords, and who is, therefore, like a Stateless person. The great danger which lies ahead of us, I think, is that if anybody who really is a Scottish Peer fails to receive a Summons, we are then reproducing one of the great defects which it was one of the most statesmanlike objects of passing the Peerage Act to abolish.

I have finished what I have to say on this matter. I have been so long, because I know that the Committee for Privileges will give this matter very careful and wise attention, and I felt it right to put before your Lordships the kind of question they will have to consider and the kind of question for which they will have to find an equitable solution.

THE DUKE OF BUCCLEUCH AND QUEENSBERRY

My Lords, I listened with great care to my noble and learned friend who sits on the Woolsack, and I realise that he has decided to refer this important matter to the Committee for Privileges. We may have thought in Scotland that we had a constitutional procedure for making sure of the claimants to Peerages, and there may be some disappointment among Scottish people that some of our names have not been readily acceptable. However, I appreciate that the Lord Chancellor has examined this matter with very great care, and I acknowledge that he is moving this Motion not only for the benefit of the House but also for the benefit of Peers, present and future.

2.49 p.m.

THE LORD CHANCELLOR

My Lords, if I may reply shortly to what has been said on this Motion, I am grateful to the noble Duke for what he has said, and I am grateful to the noble Lord, Lord Saltoun, for the information he has given your Lordships about the Lyon Court. I should like to make it perfectly clear that I have said nothing which could in any way be interpreted as a reflection upon the Lyon Court in the discharge of its jurisdiction. The point is this. The Lyon Court deals with the matriculation of arms, the right to carry arms. We in this country have the College of Arms, and a person who claims to be a Peer can go there and seek to establish his right to carry certain arms, with the insignia of nobility for those arms. No Lord Chancellor has thought it right or proper to accept the ruling of Garter upon the question whether anyone is entitled to sit in your Lordships' House. That is one of the difficulties involved.

I considered, of course, the second question touched upon by the noble Lord, Lord Saltoun, as to whether one could regard proof that someone had voted in an election for a Representative Peer for Scotland as proof of entitlement to a Scottish Peerage. I was at one time somewhat attracted to that idea, but then I found this passage in Appendix H of Volume XI of The Complete Peerage, and it is headed "The Election of Scottish Peers". It says this: Since the union of England and Scotland in 1707, Scottish peers, as such, have not sat in the House of Lords, but have elected a fixed number of themselves to represent the Scottish Peerage therein. This has made it possible for any person who may claim an extinct or dormant title to which he or she has no right, or cannot prove a right, to assume such title with impunity. Such soidisant peers can even vote, and have often voted, at the election of Scottish peers. If there is no rival claimant, the vote might not be challenged; if there were two rival claimants, they might, and sometimes did, both vote; which shows the absurdity of putting forward the fact of a soi-disant peer having voted as an argument in favour of the validity of his claim. That may be right, or it may not I simply do not know. But, having read that, I felt that I could not rely on proof of voting as sufficient evidence of entitlement to a Peerage. I am grateful for the way in which your Lordships have received this Motion.

On Question, Motion agreed to.

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