§ 2.15 p.m.
§ LORD RATHCAVAN
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
§ [The Question was as follows:
§ To ask Her Majesty's Government why Members of this House are disqualified from voting at elections for Members of the House of Commons.]
§ THE PAYMASTER GENERAL (LORD SHACKLETON)
My Lords, it is difficult to answer the question, "Why?", but I might help the noble Lord if I say that Members of this House are disqualified from voting at Elections for Members of the House of Commons by the Common Law of Parliament. The question was conclusively decided in the Court of Common Pleas in 1872 in the case of Earl Beauchamp v. Overseers of Madresfield. The Court's decision did not make new law but was a restatement of what is described as the "ancient, immemorial law of England". The ratio decidendi of the Court has recently been re-argued and reaffirmed in the Election Court in the case of the Parliamentary Election in Bristol, South-East, 1961, and is based on the doctrines of constitutional law which are most authoritatively stated by Coke in his Institutes Part IV:And the King and these three estates are the great corporation or body politic of the Kingdom and do sit in two houses, viz. the King and Lords in one House called the 1040 lords' house and the knights, citizens and burgesses in another house called the house of commons. … And whosoever is not a lord of parliament and of the lords' house is of the house of the commons either in person, or by representation, partly coagmentative, and partly representative.
§ LORD RATHCAVAN
My Lords, while thanking the noble Lord for his reply, may I ask him two supplementary questions? The first is: has he any information about what are the practices in other countries, particularly in the Commonwealth, where there are bicameral Legislatures? My second question is this. Having read the judgment in the law case of 1872, may I ask the noble Lord whether he would agree that the disqualification of Peers has existed because they sit by right of heredity, whereas this situation has been profoundly altered in recent years by the creation of a large number of Life Peers? Surely, this introduces completely new aspects of this matter so far as they are concerned. There is also the case of Peers having Leave of Absence, who are taking no part in the proceedings here.
§ LORD SHACKLETON
My Lords, I am a little doubtful whether this is a question which Her Majesty's Government ought to seek to answer at all, since it depends on the interpretation of the law. If I may take the first part of the noble Lord's question, it is my understanding that in other Commonwealth countries members of the Second Chamber or the Upper House are free to vote in Parliamentary Elections: in Canada, Australia, Northern Ireland (perhaps the noble Lord has that in mind: the Senate of Northern Ireland), and also in the United States of America. I have not carried out research in great detail into this matter, but no doubt further information could be gathered.
When it comes to this question of interpretation I am in real difficulty. Indeed, I had nearly thought I might have been wiser at the last moment to ask my noble and learned friend who sits on the Woolsack to answer this Question. There is here a certain area of disagreement. Indeed, the opinions expressed in Halsbury have been expressly denied by noble and learned Members of this House, and it would be unwise for me to attempt to reinterpret a particularly complicated piece of law. I do not know whether the noble Lord feels that this 1041 is a matter of great significance, but if so I think it would be necessary to consult the noble and learned Lord the Lord Chancellor on the possibility of some further investigation. The difficulty is of interpreting the law and finding a means of getting a definitive expression. I suppose it is conceivable that if your Lordships' House were to be reformed we might all be given the vote anyway, which seems to me to be the sensible thing to do.
§ LORD ROYLE
My Lords, is my noble friend aware that even Life Peers rather resent being coupled with the other two categories of disqualified persons?
My Lords, is my noble friend aware that in the recent Canadian general election I was entitled to—and did in fact—vote, despite my disqualification here?
§ LORD BLYTON
My Lords, does my noble friend not think that as there is a huge Tory majority in this House it would give them a further advantage in the General Elections?
§ LORD BALERNO
My Lords, can the noble Lord give any information whether the three estates of Scotland have made a similar enactment to that made by the three estates of England, and, if not, whether Scottish hereditary Peers are therefore qualified to vote at General Elections?
§ LORD SHACKLETON
My Lords, I am afraid I am quite unable to express any opinion on Scotland; I find it difficult enough to express one about England. When one goes into this matter one finds the anomalies are of such deep fascination that it would take up too much of the time of your Lordships' House. I see the point made by my noble friend Lord Blyton. None the less, although the addition of the 700 Conservative hereditary Peers—if that be the right number—might have a significant effect if they all lived in one constituency, the prospect does not alarm me too much.
THE LORD BISHOP OF CHESTER
My Lords, if the noble Lord is going to consider the disqualifications that exist at present, will he consider a further disqualification, which is that a clerk in Holy Orders may not take his seat in the House of Commons?
§ LORD SHACKLETON
My Lords, this again strikes a particularly sensitive note in Northern Ireland, as we remember from one particular case. I find there is a certain obscurity as to when a Bishop becomes disqualified from voting in Parliamentary elections, and no case has been tried in the courts which would enable us to establish this. There is the case of one Irish Peer who, as a Member of Parliament, was allowed to vote in elections while he was a Member of Parliament but was not allowed to vote when he was not a Member of Parliament. I gather that none the less he did vote at a number of General Elections.
§ LORD RATHCAVAN
My Lords, may I ask one further short question? Is the noble Lord aware—as no doubt he is—that every year the House of Commons passes a Sessional Order at the beginning of every Session, in which it says that Peers may not vote for Members of the House of Commons? When looking up the case of 1872 I found that Lord Campbell, who gave the principal judgment, expressed the view that the Resolution of the House of Commons was of no validity whatever. In fact he said, "It is not worth the paper it is written on".