HL Deb 24 November 1966 vol 278 cc363-74

3.32 p.m.

Order of the Day read for the consideration of the Report from the Committee for Privileges.


My Lords, I beg to move that the Report be now considered.

Moved accordingly, and, on Question, Motion agreed to.


My Lords, I have now to move that the Report be agreed to. Your Lordships may remember that last December a Petition was presented by a number of Irish Peers and that Petition was remitted to the Committee for Privileges. Your Lordships will find the Prayer of the Petition on Page XX of the Report. I might read the first four lines. The petitioners pray: That your Lordships will declare that the peerage of Ireland has in accordance with the provisions of the Union with Ireland Act 1800 the right to be represented by 28 lords temporal of Ireland elected by the peers of Ireland for life to sit and vote in your Lordships' House with privilege of Parliament…". Before the Committee met the Lord Chairman of Committees, the noble Earl, Lord Listowel, obtained leave of this House not to attend that Committe on the ground that he held an Irish peerage, and two other noble Lords, members of the Committee, did not attend our proceedings, I understand, for the same reason. When the Committee met they were good enough to invite me to take the Chair and I greatly appreciated the honour that was done to me. It is for that reason that I am now seeking approval of this Report.

In accordance with precedent, cases were lodged, and we heard counsel; and I may say that we heard very full and able arguments from Mr. Morris, for the petitioners, and from the Solicitor General. Your Lordships will find a full record of that argument on Pages 1 to 60 of the Committee's Report of the proceedings. May I, in parenthesis, say that I am sorry that we have a difference of pagination, Roman and Arabic, in the Report. It may be that the House will think that in future Reports it might be better to have the page numbers running consecutively. I am sure, however, that this is in accordance with precedent, and it would be only by the wish of the House that the matter should be changed.

After the argument, and certain deliberations in private, again in accordance with precedent, speeches were prepared by those members of the Committee who sought to do so, and those speeches were circulated in writing. Speeches were, in fact, prepared and circulated by myself, by my noble and learned friend Lord Dilhorne and by my noble and learned friend Lord Wilberforce. Your Lordships will find those three speeches at the end of the volume, on pages 61 to 63. There was then deliberation, and your Lordships will find recorded on Page xliv the names and opinions of all the members who took part in the proceedings. Thereafter the Report to which I now ask the House to agree was approved by the Committee, nemine dissentiente, and that Report (which I think I should read, because it is very short) is to be found on Page vii.

After stating that the Committee had met and considered the petition, and heard counsel, the Report states: That the Committee have come to the following Resolution, nemine dissentiente: That it is the opinion of the Committee— That by virtue of the provisions of the Union with Ireland Act 1800 twenty-eight Irish Representative Peers sat in this House on the part of Ireland each being elected for life: That on the death of an Irish Representative Peer an election of a successor was held in the manner provided by the said Act: That no such election has been held since 1919: That those Irish Peers who had been so elected continued to sit as Members of the House until their respective deaths and that the last Irish Peer so elected died in 1961: That the provisions of the said Act relating to the election of Irish Representative Peers ceased to he effective on the passing of the Irish Free State Agreement Act 1922 and that the right to elect Irish Representative Peers no longer exists: That for the reasons stated in the opinions published herewith the Prayer of the Petition should he rejected. When we came to consider the matter, of course we had to consider the reasons and authority for the sitting of Representative Peers in this House; and on Page 61 I set forth my view as to those reasons. I explained that it had been thought that the main reason was that the machinery for the election of Irish Peers had disappeared with the reorganisation which took place in 1922. But when we came to look into the Act of Union we found a different reason. We found that it is stated throughout the Act of Union—which was an Act passed by both the Parliament of Ireland, as it then existed, and the Parliament of Great Britain, as it then existed—the Irish Representative Lords Spiritual and Temporal were to sit "on the part of Ireland."

There were a number of Lords Spiritual who sat "on the part of Ireland" in this House until the Irish dis-establishment in the 'sixties of the last century. There was also provision that the existing members of the House of Lords of the Parliament of Great Britain were to sit in the House of Lords of the United Kingdom "on the part of Great Britain"; and there was not a word (and so far as we could find, not a suggestion) in the Act of Union that the Irish Representative Peers sat as representatives of the Peerage of Ireland, as the petitioners alleged.

But, my Lords, it is right that I should point out that in a further Act of the Irish Parliament, which was passed under authority given in the Act of Union to settle matters of procedure, there were references to Representative Peers sitting as representatives of the Irish Peerage. That Act spoke with two voices. It began by referring to Representative Peers sitting "on the part of Ireland" and then, on two or three occasions, it referred to them as sitting as representing the Peerage of Ireland, and then it reverted to the other view that they sat "on the part of Ireland".

So matters continued until, first, the Government of Ireland Act 1920, which really never came into operation, and then the Irish Free State legislation (there were several Acts) passed in the year 1922 following on the Treaty. Perhaps I may read one short paragraph from my speech on page 66 as explaining what the competing views were and what view I took about them: As a result of these changes it appears to me to be clear that Ireland as a whole no longer exists politically. On the other hand, there has been no statutory alteration of the position of the Irish Peerage or the rights of Irish Peers. So if the Irish Representative Peers were elected to represent Ireland I cannot see how there could be an election of a Peer to represent something which no longer exists politically. I went on to say, a little later: On the other hand if I could hold that the Irish Representative Peers sat as representatives of the Irish Peerage, I would not find it possible to say that any right of the Irish Peerage to be represented in this House had lapsed or has been repealed. So it was necessary to determine what was the basis—at least I thought it was; and the number of my colleagues agreed—on which the Representative Peers sat in this House; and I went on to explain why, in my view, it is clear that the basis really was that they sat "on the part of Ireland", and for that reason I myself supported the finding in the Report, which I now ask your Lordships to agree to, that the provisions of the Act relating to the election of Representative Peers ceased to be effective in 1922 and that the right to elect Irish Representative Peers no longer exists. If the House agree with that view, I think they will agree with the conclusion which the Committee drew, that the Petition should be rejected. My Lords, I beg to move.

Moved, That the Report be agreed to.—(Lord Reid.)

3.43 p.m.


My Lords, as the representative of the petitioners in your Lordships' House, may I say that we are very disappointed with the findings of the Committee for Privileges. We are also slightly mystified. When facing such distinguished Law Lords, and as I am not a lawyer, obviously I do not want to go into very great intricacies. But may I ask the noble and learned Lord, Lord Reid, one or two questions? The noble and learned Lord has based his findings on the fact, as he has told us, that the Irish Peers did not, in his opinion, sit as representatives of the Irish Peerage, because in the 1800 Act of Union and subsequent Acts there are numerous references to Lords Temporal and Spiritual sitting on the part of Ireland in the Parliament of the United Kingdom.

I think I am right in saying that if you study the summing-up of the noble and learned Lord, Lord Wilberforce, who was a member of the Committee, you will find that he does not agree with the noble and learned Lord, Lord Reid, about that. As the noble and learned Lord, Lord Reid, said, the 1800 Act, in two places expressly—there may be more—refers to the Irish Representative Peers sitting as representatives of the Irish Peerage. It is on page 64, and I think it was quoted by the noble and learned Lord. This is also further confirmed by the Third Report in 1922 on The Dignity of a Peer; by Halsbury's Laws of England; by Jowitt's 1959 Dictionary of English Law; by Lord Maugham and by Lord Greene's Opinion in 1924, to which I intend to return in a moment, and also to a certain extent by the noble and learned Lord, Lord Wilberforce, himself.

My Lords, regarding the meaning of the phrase, "on the part of Ireland", it has occurred to me that suppose instead of three-quarters of Ireland having broken off from the British Crown into a Free State and a subsequent Republic only one small part of Ireland like the County of Cork—always a rather troublesome county—had broken away and declared itself a Free State. According to the reasoning of the noble and learned Lord, Lord Reid, if that had happened the Irish Peerage would in that case have lost their right to sit in your Lordships' House. Even if County Kerry had been engulfed by a tidal wave they would have lost their right. It is very hard to understand that.

There is another point regarding this question of "on the part of Ireland". The noble Earl the Leader of the House is a very good Catholic, and I ask him to imagine the Irish Peers, the Lords Temporal and Spiritual, sitting here in the House of Lords in the early 19th century. I am quite sure that the early 19th century Catholics in Ireland did not agree that the Lords Spiritual sat "on the part of Ireland". They represented the Church of Ireland, but they did not represent Ireland. Here may I say, with the greatest respect, because I am not a lawyer, that I think the Committee have gone rather astray, in that they think that the Irish Peers sitting in your Lordships' House sat here to represent Ireland. The Act of Union of 1800 has never been repealed. It is true enough that three-quarters of Ireland broke away, but there is a quarter of Ireland which still acknowledges the British Crown.

May I quote the noble and learned Lord, Lord Wilberforce, with regard to the Act of Union? I understand that the noble and learned Lord, Lord Reid, thought that the Act of Union had become obsolescent owing to various political activities. But, on page 73, the noble and learned Lord, Lord Wilberforce, says: I confess to some reluctance to holding that an Act of such constitutional significance as the Union with Ireland Act is subject to the doctrine of implied repeal or of obsolescence. Therefore, according to the noble and learned Lord's reasoning, the Act of Union is still in existence.

I do not wish to detain your Lordships too long, because I know there is a lot of other Business, but I should like to point out that in the opinion of the petitioners this finding of the Committee for Privileges must mean that Irish Peers are territorial. We have the Berkeley Peerage case of 1858–1862. I always thought that this settled once and for all that there is no such thing as a peerage of tenure. I have always thought that as a peerage is a personal inheritance it does not entitle its holder to represent any territory in Parliament. If that is so. I cannot understand how the Representative Peers of Ireland sat in your Lordships' House as representing any part of Ireland. If this is accepted, then it would appear to be a new departure in law.

Before I conclude, I should like to refer to the Maugham/Greene opinion of July 16, 1924. As your Lordships know, Lord Maugham was a distinguished Lord Chancellor, and Lord Greene a distinguished Master of the Rolls. Their Opinion runs completely contra to the opinion of the Committee for Privileges. Their Opinion holds that the Irish Peerage, notwithstanding the 1922 Free State Act and subsequent Acts, has the right to allocate 28 members of the Irish Peerage to your Lordships' House. If I may quote just three lines of that Opinion, they say: This conclusion is in accordance with the well-known principle that a statute is not to be construed as taking away or destroying rights or privileges save by express language or necessary implication. I apologise to he Committee for Privileges on behalf of the petitioners that we did not lay this Opinion before them. How that happened, I really cannot say; I can only presume that it was due to an oversight on our part.

What I wish to ask—and I am completely in the hands of the noble and learned Lord, Lord Reid, the Lord Chancellor and the House—is whether it would be possible to refer this Opinion back to the Committee for them to study in due course. There is a precedent for this in the case of Lady Rhondda's peerage in 1922. This was then referred back for further consideration. But in the case of Lady Rhondda's peerage it was only one peerage, while here we have 70 Peers affected. Are your Lordships going to deny them what is perhaps a last opportunity of assistance?

The Irish Peerage has served the British Crown extremely well, and to-day it comprises many distinguished men. I am sure that the Committee for Privileges and your Lordships will wish to lean over backwards to be just and fair in this matter. I will just ask once again if the Maugham/Greene opinion, which I have here (copies can be made of it, of course), could be referred back to the Committee for Privileges for consideration.

3.58 p.m.


My Lords, I. had not intended to speak on this issue, but in listening to the noble Viscount, Lord Massereene and Ferrard, one point struck me, that is the geographic allocation of where the peerage is made from. I do not think the petitioners drew attention to this fact in the Petition, and the fact of 28 Peers being allowed is one that we all know. As long as the Six Counties are part of the Crown and this Kingdom, I think the point the noble Viscount has raised has some semblance. Speaking as somebody who lives in the Kingdom of England and Scotland, I think there are certain people whose ancestors' loyalty to the Crown is suspect, because the Act of Union 1801 was passed in the reign of George III, and earlier on, your Lordships will remember, Mr. Dunning moved a Motion that the power of the Crown was increasing, had increased, and should be reduced. One of the ways in which the King's Prime Minister, Lord North, did this was to promote people in another place to peerages, without having the trouble of fighting further elections, which were a very expensive business in those days, whether for a great territorial magnate or for the Crown.

I can think of people who allowed themselves to be promoted to Peerages in those days. I can think of one of the great Yorkshire families, the Saviles, the head of which allowed himself to be made the Earl of Mexborough in the Peerage of Ireland. The Saviles had nothing to do with Ireland. In Scotland, the Chief of the greatest clan family, Macdonald of Armadale, in Skye, Chief of all the Chiefs of that Clan, allowed himself to be made Lord Macdonald of Slate, in Antrim. We all know that Sleat, the castle he lived in, was in Skye. And let us go to Wales. The head of the great Welsh Border family, the Vaughans, territorial chiefs of long antiquity and power, allowed himself to be made Earl of Lisburne in the Kingdom of Ireland. None of these families had territorial connections with Ireland. I think that the point which the noble Viscount made, that these Peerages are not necessarily based on this, has some validity.

I do not want to detain your Lordships. We have heard a lot about this. The point is that there are these families—I have just cited three because they spring to my mind without any preparation at all. I think that if the noble and learned Lord's Committee had had these points put before them, possibly in a wider context, some injustice might be seen to have been done to the descendants of those noblemen who accepted this particular form of peerage out of consideration for the Crown.

4.3 p.m.


My Lords, if I may speak, not as a Minister but as a member of the Committee, I would say that the Committee sat under the able chairmanship of the noble and learned Lord, Lord Reid. We had the benefit of having on the Committee the noble and learned Lords, Lord Wilberforce, Lord Hodson and Lord Morris of Borth-y-Gest; the noble and learned Viscount, Lord Dilhorne; the noble Marquess, Lord Salisbury and the noble Earl, Lord Swinton, and others. The Committee listened to the evidence of the petitioners and we had the opportunity of examining all the legislation relating to this matter.

I do not think that there is any doubt that this matter was gone into exhaustively by the Committee. If my memory is right, the Report of the Committee was unanimous. I do not believe that the point that the noble Viscount has just made, brought forward at this late hour, on the opinion of two respected members of the legal profession, would have changed our minds. That is certainly my view. I do not think that we should accept the suggestion of the noble Viscount that this matter should be referred again to the Committee. I cannot believe that, in all the circumstances, we should change our minds. I believe that all that has been done has been fair to the petitioners, and I hope that the House will now accept the Report of the Committee.


My Lords, as a member of the Committee, I support what has just been said by the noble Lord, Lord Shepherd. The Committee really did go into all aspects of this question. Every single argument was deployed on both sides. We listened to them all, and we came definitely and unanimously to the conclusion that the Petition could not be accepted, for the simple reason that the entity that is the whole of Ireland, which Irish Representative Peers had been hitherto selected to represent, no longer existed. That was the result of our examination.

It was not merely that we took the view that the machinery for electing Peers had ceased to be operative: it was something much more fundamental than that. And I cannot but feel that if this matter were referred by your Lordships—as they have a perfect right to do—back to the Committee, we should only traverse exactly the same ground. Though I have the utmost sympathy with the noble Viscount and his co-petitioners, I hope that they will accept the verdict of the Committee and allow the matter to be regarded as decided by the House.


My Lords, I have been asked one or two questions. I shall not say any more about the proposal to remit the matter. That has been dealt with by the noble Marquess and the noble Lord. I would only say this: that we did go back to original sources, and we should have again to go back to original sources, because, after all, an opinion, no matter how distinguished may be the holder of the opinion, is only a gloss on the original source.

There was a question about the nature of the Irish Peerage. Your Lordships will remember that until 1782 the Irish Parliament was to some extent subject to the British Government, and I have no doubt that in those days a number of eminent persons in this country were given Irish Peerages when they had little connection with Ireland. But from 1782 until 1800 the Parliament of Ireland was entirely independent, and treated with the Parliament of Great Britain on an equal basis. At that time, the Peerage of Ireland was the Peerage of the Kingdom of Ireland. The Peerage of Great Britain and the Peerage of England and the Peerage of Scotland were Peerages of Great Britain. And when the Union came about, the Peerage of Ireland obtained all the privileges of Peers of the United Kingdom, with the single exception that they were not allowed to sit in this House, other than the 28 Representative Peers who were to sit on the part of Ireland. I hope that that explains that matter.

The only other matter is: why do we say that Ireland has ceased to exist as a political entity? Of course, if the County of Kerry had been submerged, or something like that, that would have made a great difference—but it would not have altered the political character of Ireland. I do not think that anybody can look back on the events and legislation of 1922 without saying that they made a fundamental difference, and to my mind these are the differences which make it clear that Ireland no longer exists as a political entity.


My Lords, may I ask one question? Surely Ireland exists as a political entity to-day?


My Lords, the point surely is this: that it exists as a form of political entity which is not part of the Commonwealth—namely, as the Republic; and it also exists—in Northern Ireland—as a part of the United Kingdom of Great Britain and Northern Ireland. There is no one entity to-day which comprises Ireland as Ireland.


My Lords, I intervened only in order to make the verbal point that Ireland can hardly be said to have come to an end.


My Lords, it was on February 3 that the noble Viscount, Lord Massereene and Ferrard, moved that this Petition be referred to the Committee for Privileges. On that occasion I pointed out that this was no new claim. I said that the matter was fully considered by the Joint Committee on House of Lords Reform in 1962. That Committee had before it memoranda by the official group, by the noble Lord, Lord Dunboyne, and by other noble Lords interested. The Committee expressed themselves as not in favour of the revival of any form of representation for the Peerage of Ireland in the House of Lords. I then said that on that footing they considered that they should be fully eligible to sit in the House of Commons. Accordingly, in the debate in your Lordships' House on the Peerage Bill, in 1963, an Amendment was moved in the sense contended for in the Petition, but was defeated by 90 votes to 8. It was on that footing, that the Irish Peers were not eligible to sit in your Lordships' House, that the Peerage Act made the Irish Peers fully eligible to sit in the House of Commons. Now the matter is raised again.

Later, I said this: The petitioners say that, while they have put their claim before, it has never been argued by counsel, as it would be before the Committee for Privileges; nor have their legal rights ever been fully inquired into. The Government feel that the claim of the petitioners is one which will probably continue to be raised from time to time unless a full inquiry into the claim is made, and that the Committee for Privileges is the proper body to make that inquiry."—[OFFICIAL REPORT, Vol. 272, col. 574; 3/2/661 Then I said that the Government therefore advised the House to accept the Motion, which the House did.

There have been several lengthy hearings before the Committee for Privileges in which the petitioners were represented by learned counsel. As your Lordships can see, the Committee for Privileges which heard the matter included the noble and learned Lord, Lord Reid, the noble and learned Viscount, Lord Dilhorne, the noble and learned Lord, Lord Wilberforce, the noble Marquess, Lord Salisbury, the noble Earl, Lord Dundee, the noble Earl, Lord St. Aldwyn, the noble Earl, Lord Swinton, the noble Earl, Lord Attlee, the noble Lord, Lord Rea, the noble Lord, Lord Shepherd, the noble Lord, Lord Silkin, the noble Lord, Lord Ogmore, the noble Lord, Lord Strang, the noble Lord, Lord Conesford, the noble and learned Lord, Lord Morris of Borth-y-Gest, and the noble and learned Lord, Lord Hodson. That is to say, it included five noble and learned Lords. I think the points which have been raised by the noble Viscount, Lord Massereene and Ferrard, have already been answered by the noble and learned Lord, Lord Reid. If I may so, I fully concur in the Opinions which were delivered, and the Government advise the House to agree to this Report.

On Question, Motion agreed to.