§ 4.2 p.m.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)
My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
§ Moved, That the House do now resolve itself into Committee (on Recommitment).—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee(on Recommitment) accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1 to 3 agree to
§ Schedule [Enactments Repealed];
§ VISCOUNT MASSEREENE AND FERRARD moved, as an Amendment, to leave out Part I of the Schedule. The noble Viscount said: The reason I put down this Amendment is that I do not consider that Part I of the Schedule of this Bill, which relates to constitutional rights of the Irish Peerage, is the correct procedure to deprive a substantial group of people, numbering in all 145, of their Parliamentary rights. My noble Leader said a moment ago that he felt rather like Agag. I feel rather, as I survey the noble and learned Lords on the Cross-Benches, like David as he surveyed Goliath. I do not wish my noble and learned friends on the Cross-Benches to suffer the same fate as Goliath, but I must warn them that I consider that I have some very stout stones in my sling.
§ Perhaps, for the convenience of some of your Lordships, we might briefly run through the history of the case of the Irish Peers as it affects the House of Lords. All your Lordships will know that the Union with Ireland Act 1800 gave the Irish Peers the right to elect 28 of their number to your Lordships' House for life. In 1922, as your Lordships also know, three-quarters of Ireland became the Irish Free State under various Acts culminating in the Irish Free State (Agreement) Act. When that came to pass, the machinery for electing representatives of the Irish Peerage lapsed, because as the machinery consisted of the Lord Chancellor of Ireland and the 716 Clerk of the Crown of Hanaper, sitting in Dublin, those two offices became obsolete. Since the machinery lapsed, no representatives of the Irish Peerage have been elected, the last Representative Peer dying in 1961. Just about the time the last Irish Representative Peer in your Lordships' House died, the Irish Peers' Association was formed. At that time, as your Lordships remember, we had just passed the Life Peerages Act, and various reforms were coming up in your Lordships' House; and so the Irish Peers thought that they ought to combine to protect their interest. I have had the honour of representing the Association of Irish Peers in your Lordships' House. I am afraid I have not been very successful in promoting their interests as regards your lordship's House, but perhaps, if I may so, the odds have been against me.
Then we come to 1924 when the third Lord Oranmore and Browne sought the opinion of eminent counsel; he sought the opinion of two very eminent lawyers at that time, F. H. Maugham and W. A. Greene, who later became respectively Lord Chancellor and Master of the Rolls. May I just read the opinion of those two eminent lawyers on the rights of the Peers of Ireland as at that date? They concluded:
The North of Ireland now represents Ireland for those purposes of the Act of Union which involve the representation of elected Irish Peers in the House of Lords whose rights to sit and vote on the part of Ireland notwithstanding the recent legislation "—
by which they meant the legislation setting up the Irish Free State—
So we have those two eminent lawyers who gave that opinion: that the right of the Irish Peers to be represented in your Lordships' House as at that date was unassailable; that the Act which set up the Irish Free State had not affected their rights in any way. This was printed in the Public Law Book. 1967.
In 1962 a Joint Committee of your Lordships' House, the Joint Committee on Lords Reform, was not in favour of the revival of any such representation, but they gave no reason for that view. In 1966 a Petition was presented by 12 Irish Peers to the Committee for Privileges praying that your Lordships will declare.
the right of the Peerage of Ireland to be represented by 28 of their number in your
Lordships' House in accordance with the Union with Ireland Act 1800.
As your Lordships will know, the Committee for Privileges is not a court of law. The majority of its members are political from your Lordships' House. It is what one would call, in legal jargon, a "lay tribunal". Of course there are Law Lords on the Committee for Privileges, and on this occasion the Chairman of the Committee was a very distinguished noble:and learned Lord, whom I see on the Cross-Benches. the noble and learned Lord, Lord Reid. He was supported by other Law Lords, including the noble and learned Viscount. Lord Dilhorne, the noble and learned Lord, Lord Wilberforce. and, I think, the noble and learned Lord, Lord Hodson, and the noble and learned Lord. Lord Morris of Borth-y-Gest.
The Committee for Privileges dismissed the Petition, but gave reasons for their decision. The case was argued before them by counsel for the Association of Irish Peers, and it was gone into reasonably thoroughly. The Committee accepted the Opinion of the noble and learned Lord, Lord Reid, that the Irish Representative Peers were to sit "on the part of Ireland" but, as he pointed out, as a result of the Irish Free State legislation in 1922, Ireland as a whole no longer existed politically. The noble and learned Lord, Lord Reid, said— and I quote from col. 365 of Vol. 278 of the OFFICIAL REPORT:
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.
The Opinion of the noble and learned Lord, Lord Wilberforce, rather contradicted the Opinion of the noble and learned Lord, Lord Reid. They rather tore each other's opinions apart. Notwithstanding that, the noble and learned Lord, Lord Wilberforce, did agree to the dismissal of the Petition, and this House accepted the Committee's Report.
In his speech the noble and learned Lord, Lord Reid, went on to say to the Committee:
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 he represented in this House had lapsed or has been repealed.
We now find ourselves in the position where the most eminent lawyers in the
land disagree as to our rights. We have the opinions of the noble and learned Lords, Lord Maugham and Lord Greene, that,
The North of Ireland now represents Ireland for those purposes of the Act of Union which involve the representation of elected Irish Peers in the House of Lords
and their rights therefore to sit and vote on the part of Ireland are unassailable. We also have the noble and learned Lord, Lord Reid, disagreeing that "on the part of Ireland" can include the North of Ireland. Then we have the noble and learned Lord, Lord Reid, adding:
…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 they have lost any right to be represented in this House.
§ We now come to a dilemma. I have read the Act of Union and the supporting Acts. The Act of Union itself and its supporting Acts are indecisive on this very point. An Act passed under the authority given in the Act of Union to settle matters of procedure refers to Representative Peers sitting as representatives of the Irish Peerage; actually not on the part of Ireland but as representatives of the Irish Peerage. I think it is generally held that Peerages are not territorial. One can quote several learned works, such as Halsbury's Laws of England to prove this point. There was the Berkeley Peerage case in 1858 to 1862 which, I thought, settled once and for all that you cannot have a peerage of tenure. In other words, Peers are not territorial. We have had many men who have been created Irish Peers who have had no connection with Ireland at all. Therefore, whether or not it is correct, as the noble and learned Lord, Lord Reid. says, that Irish Peers only sat on behalf of the whole of Ireland, they would appear to have equally good a case to sit as representatives of the Irish Peerage. In fact, I cannot really describe this situation better than to say that it is typically Irish.
§ But where do we go from here? The Irish Peers have gone where we never knew we were going. We were never told that we were going where we have gone. We have gone to the Joint Committee of the House of Lords and the Commons on Consolidation Bills, et cetera, 719 but we have come in the "et cetera" in this Statute Law (Repeals) Bill, jumbled together with a host of defunct ecclesiastical Measures. It was brought to my notice, by chance, that the repeal of the rights of the Irish Peerage were included in this Bill. It might have slipped through, and none of us would have known anything about it. Could we not have been informed'? We have a large Association and a Committee. Why were representatives of our Association not called before the Joint Committee to give evidence? I realise that the Joint Committee is relatively an innovation. I think it was started by the noble and learned Lord who sits opposite me, the former Lord Chancellor. Like all innovations, perhaps it is not quite sure yet of its ground. This was, to use a legal phrase, a value judgment. I understand that previously in this Joint Committee when they had a value judgment and individuals' rights were being affected the Committee sought their views, but it would appear that we have been treated, not arrogantly but, to use an Irish word in a "flahooley" manner—if there is such a word. I rather pity the shorthand writer. But we have been treated rather carelessly and inconsiderately.
§ If the constitutional rights of individuals or groups are to be altered or abolished by Committees closeted away somewhere upstairs, this sets a rather dangerous precedent. We do not want to return to the Star Chamber, in which one or two of my ancestors, I think, were involved. Whatever views one may hold about the rights of Irish Peers, the use of the clauses in this Bill which purport to repeal enactments which are no longer of practical utility is really not the proper method for bringing about changes of such constitutional importance. After all, if this Statute Law (Repeals) Bill goes through unamended, we shall be depriving 145 Peers of their Parliamentary rights to sit in this House as Irish Peers. We shall be depriving them of their constitutional rights. Surely it would have been far better if the Government had produced a Bill solely for that purpose. It could have been called the "Repeal of the Rights of the Irish Peers under the Act of Union of 1800." Everybody would then have known what 720 was being proposed. It would have been quite plain and above board, and that would have been a far more dignified method. I beg to move.
§ 4.22 p.m.
§ THE EARL OF CORK AND ORRERY
I rise to support the Amendment of my noble friend, with appreciation for the lucid and admirable, not to say entertaining, way in which he has given us a rundown of the whole history of the Irish Peers and their difficult situation. It is not among the least of the charms of your Lordships' House that, from time to time, it makes an excursion into what can almost be called inconsequence. It might even be possible for a stranger coming into the Public Gallery to be deluded for a moment on a particular day into thinking that the Palace of Westminster was to some extent a Palace of Varieties. We have such an occasion this afternoon. We are met together to discuss the repeal of various laws, including the Steam Engine Furnaces Act 1821, an Act to enable Her Majesty to settle an annunity on Her Royal Highness the Princess Beatrice Victoria Feodore, and a proper rag-bag of old Acts which we are trying to get rid of with as little trouble as possible.
At the beginning of the Bill is an Act dealing with the representation of the Irish Peers. I do not think that these matters go together. By all means let us have an Act to abolish the Steam Engine Furnaces Act 1821—I would say that it is high time. But is it reasonable to abolish the representation of the Irish Peers in quite such an off-hand way as that, by this dustpan and brush method by which you can simply tear up the Acts of Parliament and the ghosts of the Writs of Summons and the Letters Patent which they have received over centuries gone by, and discard them along with the annuity of Princess Beatrice Victoria Feodore into your Lordships' wastepaper basket? I consider—and I think your Lordships will perhaps agree with me—that this is highly improper.
My noble friend has run very ably and rapidly through the history of this matter since the Union and I do not wish to touch on any of those matters again because, as he was at pains to explain, that was not the purpose of his speech. His purpose was simply to guide your Lordships with a little information which 721 may not be entirely familiar to us all as to what this is all about. But I think I do not misrepresent my noble friend when I say that that is not what the Amendment is about. He made it clear enough that his point was simply to move an Amendment to have this Schedule taken out of the Bill in order that, if this matter is to be decided by your Lordships' House —and, indeed, how can it be decided anywhere but in Parliament?—it should be decided as a result of proper discussion and deliberation upon the Floor of this Chamber and, of course, in the other place as well. That is something which has never happened. The Committee for Privileges has discussed the matter and has ruled against it. Other learned groups of men have discussed it and, on the whole, have come down in favour of the continuation of the representation of Irish Peers. But none of those bodies, none of those individuals, none of those combinations of individuals, however noble and however learned, has the force that resides alone within your Lordships' House itself.
§ THE LORD CHANCELLOR
I think my noble friend is in error there. The Report of the Committee for Privileges was endorsed by a Resolution of this House in 1966. He is mistaken in thinking that it was not.
§ THE LORD CHANCELLOR
No House can be a thin House which includes my noble and learned friend Lord Dilhorne.
§ VISCOUNT DILHORNE
That brings me to my feet. I should just like to say this about this matter. The noble Viscount, Lord Massereene and Ferrard, has spoken as if this Bill is taking away rights held by members of the Irish Peerage.
§ THE LORD CHANCELLOR
On a point of order, I think I intervened—I hope not rudely—in the speech of my noble friend Lord Cork and Orrery. I think it is not yet time for us to hear my noble and learned friend on the Cross-Benches.
§ VISCOUNT DILHORNE
I apologise, but I looked at the noble Earl, Lord Cork and Orrery, and he remained in his seat, 722 no doubt shattered by what the noble and learned Lord the Lord Chancellor had said.
§ THE EARL OF CORK AND ORRERY
I think, in fact, that I was shattered at being looked at by the noble and learned Viscount, Lord Dilhorne. But I am most grateful to my noble and learned friend the Lord Chancellor for coming to my rescue. I was about to attempt the feat myself, but perhaps I should not have been quite so successful. I take the point of my noble and learned friend, that this matter was discussed and a Resolution was come to. I am not clear, as a matter of law, whether or not that Resolution had the effect of putting an end to the Irish Representatative Peerage. If it had, then this Bill would not be before us now. Therefore it appears to me that in fact the matter has not yet been decided. You cannot have it both ways. We are therefore being asked to decide it this afternoon, and it is my contention and that of my noble friend Lord Massereene and Ferrard that this is not the way to do it.
My noble friend mentioned numerous questions which have not really been discussed with the full knowledge of your Lordships, and I would mention a rider to the question of the Peers of Northern Ireland. Whom do they represent? Do they represent what remains of the Irish Peerage of the whole Kingdom of Ireland? Do they represent only themselves? Do they represent nothing at all? If they represent the whole Peerage of Ireland, why, then, have they been abolished? If they are "territorial"—using that word in inverted commas—then the territory which they represent is still in a state of union with the Crown. and even if they are a part of the Irish Peerage as a whole, which they represent, most of that Peerage has fallen into abeyance or some kind of disbarment from representation and they—at least in the Six Counties—represent a fragment of what is left. In fact, they represent 6 /32nds, which, as I work it out, entitles them to a representation of 5.25 Members in your Lordships' House. That is the kind of thing—without the arithmetic—which ought to he debated, but I do not believe it ever has been.
The Peerage of Ireland, to which myself belong, is not a new thing. It is 723 no different in antiquity or in dignity from any other part of the Peerage—from the Peerage of England, of Scotland, of the United Kingdom or of Great Britain. Is it proper that your Lordships should, in the midst of this little ragbag of a Bill, taken on the afternoon of Gold Cup Day in the middle of Ascot Week, shove all these old Lords out of the way as though they had never been of any account at all? I doubt it. I can stand with a foot in both camps here because, after all, I am a Peer of Great Britain; so I have no interest to declare in this matter. Indeed. who has?—there is no money in it. But it might be as well if, when we are considering whether or not it is a question of the constitutional rights of Peers being taken away, we should reflect too, just in passing, that it is a matter also of constitutional duty being taken away. These Representative Peers certainly never have, and I do not suppose ever would, put themselves forward for election as representatives unless they chose to discharge that duty; and if they were here they would no doubt, as indeed they did when they were here, play a useful, constructive and not unworthy part in your Lordships' deliberations.
Therefore, is it not reasonable that if this ancient Peerage—because it has existed for something like 900 years—is to be swept away for ever from your Lordships' House, it should be done by a means somewhat more dignified than this? Should not the whole of your Lordships' House—I am not using that word incorrectly, I think; I know very well I am addressing a Committee—sit together in deliberation on this matter, to discuss whether or not the representation of a part of your own membership should be allowed to continue or should not? It ought not, simply at this moment in the afternoon, in the midst of a ragbag of old, assorted odds and ends of unwanted legislation, be swept into the rubbish basket. I certainly support the Amendment.
§ 4.33 p.m.
§ LORD GARDINER
I rise to speak to this Amendment, not on behalf of the Opposition but as a Member of your Lordships' House, because while this matter has been debated many times it has never been treated as a Party question. 724 I do so partly because when the matter was last before your Lordships' House, to our great regret, the noble and learned Lord the present Lord Chancellor was not a Member of the House, and I therefore had to deal with it; and I thought that perhaps I ought shortly to remind your Lordships of the general position.
There is of course no doubt that the Act of Union of 1800 conferred a right on the Irish Peers to elect 28 of their number to sit and vote in your Lordships' House on behalf of Ireland; and legislation laid down the procedure for their election. It was a procedure under which certain acts had to be performed by the Lord Chancellor of Ireland and certain acts had to be performed by a gentleman whose full title, I think, was that of Clerk of the Crown and Hanaper of Ireland. Of course, the country Ireland, as such, has not existed since the Irish Free State Act; there is no Lord Chancellor of Ireland, and there is no Clerk of the Crown. It is not surprising, therefore, that there has been no election since 1919. Those who had been elected remained Members of your Lordships' House until their death, and the last of them died in 1961. I myself have never been able to understand how, in those circumstances, it could possibly be contended that these Acts have any effect any more. However, the matter has been raised several times.
In 1962 it was fully considered by the Joint Committee on House of Lords Reform. That, of course, was not the All-Party Conference on House of Lords Reform, of which I had the privilege of being Chairman, but the earlier one. 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 asnot in favour of the revival of any form of representation for the Peerage of Ireland in the House of Lords ".The matter was next raised on the Peerage Bill in 1963, when an Amendment was moved which might have had the effect of restoring a right to the Peers of Ireland; but that was defeated by 90 votes to 8. But it was then pointed out that as the Irish Peers were no longer eligible to sit in your Lordships' House, 725 they ought to be eligible, which they were not then, to sit in the other place. Accordingly, an Amendment was moved and carried during the proceedings on the Peerage Bill conferring on Irish Peers the right to be eligible to sit and vote in the House of Commons.
That was not the end of the matter. because in 1965 a Petition was presented in the sense contended for then and now by the noble Viscount, Lord Massereene and Ferrard, and I had then to consider what advice to give to your Lordships' House. In February, 1966, the noble Viscount moved a Motion that the Petition should be referred to the Committee for Privileges, and I had to consider whether the time of the Committee for Privileges ought to be taken up with it. But the reason, as I then explained to the House, why I thought that it ought to go to the Committee for Privileges was that it had been said by the noble Viscount—and it seemed to me a good point—that while it was quite true that this question had been raised many times, and always decided against the contentions advanced, it had never been considered fully and exhaustively, and that we should never achieve finality unless it was fully and properly considered by the Committee for Privileges, before whom the Irish Peers could be represented by counsel. I said on that occasion: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, 3/2/66, col. 574.]The Committee for Privileges which considered the Petition consisted of the noble and learned Lord, Lord Reid, as Chairman; 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 726 ;the noble Lord, Lord Conesford; the noble and learned Lord, Lord Morris of Borthy-y-Gest; and the noble and learned Lord, Lord Hodson. I thought at the time, if I may say so, that we had really done the noble Viscount proud. That Committee had a number of meetings, and I observe from their very full Report that the arguments put before them occupy 236 columns of print. The Committee reached a unanimous conclusionthat. 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: and …that the provisions of the said Act relating to the election of Trish representative peers ceased to be effective on the passing of the Irish Free State (Agreement) Act 1922: and that the right to elect Irish representative peers no longer exists.The Committee concluded:That for the reasons stated in the opinions published herewith the prayer of the petitioners should be rejected.It was on November 24, 1966, that the noble and learned Lord. Lord Reid, moved that the Report of the Committee be agreed to. I have carefully re-read everything that the noble Viscount said on that occasion, and perhaps he would agree with me that he has not said anything this afternoon that he did not say on that occasion. We had the Maugham and Greene decisions; we had the fact that the noble and learned Lord, Lord Reid, based his opinion rather more on one ground than another and the noble and learned Lord, Lord Wilberforce, on another. The noble Viscount suggested that the Report should be referred back on the grounds that he has put before the House this afternoon. A number of noble Lords disagreed with that, including my noble friend Lord Shepherd, and the noble Marquess, Lord Salisbury, said: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 he accepted, for the simple reason that the entity that is the whole of 727 Ireland, which Irish Representative Peers had been hitherto selected to represent, no longer existed. That was the result of our examination."—[OFFICIAL REPORT, 24 /11/66; col. 3711At the end, when I put the Motion from the Woolsack, the noble Viscount did not carry the matter to a Division and therefore the Report of that Committee was unanimously accepted by your Lordships' House. There is no other authority. In the arguments, the Petitioners not only conceded but themselves advanced the fact, that in law the only body which can decide this question is your Lordships' House and no one else. The House has therefore decided. That being so, the only body which can so decide having already decided that under these Acts the Peers of Ireland have not now any legal rights at all, I cannot imagine what can possibly be the good of keeping them on the Statute Book. That was what the Joint Consolidation Committee had to decide; that was what they decided. In one sense nothing is ever final: Parliament, I suppose, can at any time change its mind. There is nothing whatever to prevent the noble Viscount from introducing a Private Member's Bill to-morrow to provide that in the future the Peers of Ireland should have some right to representation in this House. But the Bill would have to contain machinery for their election because, for the reasons I have ventured to give, the present Acts are absolutely useless for that purpose. They are dependent on there being a Lord Chancellor of Ireland and a Clerk of the Crown. I myself, as an individual Member of this House, hope that this Amendment will not be accepted for the reason that I have ventured to give: because of the unanimous decision of this House made in 1966.
§ LORD COLYTON
My Lords, before the noble and learned Lord sits down, can he very briefly deal with the main point of my noble friend's speech which was the unsuitability of dealing with this matter in this hotch-potch of a Bill? That was the main point.
§ Loin GARDINER
The object of a Statute Law (Repeals) Bill is to remove from the Statute Book Acts which serve no useful purpose. The whole House, on the unanimous Report of the Committee for Privileges, having decided that 728 the Irish Peers have no legal rights under any of these Acts, I cannot understand what possible object there can be in keeping them on the Statute Book.
§ VISCOUNT DILHORNE
My Lords, if the decision of the House on the resolution to which the noble Lord has referred is correct, then 1 should have thought that there can be absolutely no doubt that these provisions are obsolete and are properly included, with some very odd bedfellows, in the Bill. What the noble Viscount, Lord Massereene and Ferrard, is raising, is the correctness of the decision of the House made on that occasion and the correctness of the conclusions of the Committee for Privileges. He has challenged the views expressed by those who wrote Opinions on that case. May 1 say this? If those Opinions are right, there is no question of taking away in this Bill any rights now held by anyone, by any member of the Irish Peerage at all, because those rights are not there if that Opinion is right.
I do not want to go over the whole matter, except that I think it is worth bearing in mind that the Act of Union provided for there being one Parliament for Great Britain and Ireland. One consequence of that was the abolition of the Irish Parliament, and provision was made by that Act for representation in the one Parliament of Peers, of Bishops and of commoners. I think there were to be 100 commoners elected from Ireland in the Commons, four Bishops elected by the other Bishops of Ireland in this House and these 28 Irish Peers who were to be elected by members of the Irish Peerage. That is how the formation of one House came about. Then it was not a right given as a benefit, as I saw it, to individual members of the Irish Peerage; it was to enable Ireland to be represented in this Parliament. That is recognised in many statutory provisions. When Ireland ceased to exist, then of course Eire was created and an entirely new political entity, Northern Ireland, with a separate Parliament of its own. I for one cannot regard Northern Ireland, the Six Counties, as the successors of any rights which attached to Ireland as a whole as a political entity of its own. That has ceased to exist.
So I say this. I have now read and studied the Opinion to which the noble 729 Viscount, Lord Massereene and Ferrard, referred. He referred to it, as the noble and learned Lord, Lord Gardiner, has said, when the resolution was discussed; so presumably that Opinion was known to the members of the association and the Petitioners to the Committee for Privileges, of whom the noble Viscount, Lord Massereene and Ferrard, was one, at the time of the hearing. I do not recall any reference being made before the Committee for Privileges to that Opinion. Perhaps it was not thought proper. What I recall is that eminent counsel were employed for the Petitioners and they advanced every possible argument; and the arguments they advanced touched on some of the matters dealt with in the Opinion. I have read the Opinion recently and so far as I am concerned and for what it is worth I would not wish to alter one iota of the Opinion that I wrote. Nor would I feel any doubt as to the correctness of the conclusion reached by the Committee.
§ LORD MOYNE
My Lords, speaking as an Irish Peer who is not an Irish Peer, I should like to congratulate my noble friend Lord Massereene and Ferrard on the courageous way in which he has steered through very difficult legal waters. I do not wish to challenge the findings made by so many noble Lords who were listed by the noble and learned Lord, Lord Gardiner. He made the list seem very impressive. It was very impressive. A great deal of wisdom and experience was in the Committee. We had a debate afterwards: I was there and I spoke, and I remember it. But this Bill has been described as a ragbag. It seems to me more like a consolidation Bill. I have always understood—and there are three ex-Lord Chancellors in the House who will be able to contradict me—that this kind of Bill consolidated Acts of Parliament—not case law, not decisions of the courts, even of the Court of Parliament in the kind of way in which this matter was considered. It seems to me wrong that a controversial matter should be included in a Bill of this kind. If I am not right in that there are plenty of people here who can put me right.
§ 4.50 p.m.
§ THE LORD CHANCELLOR
I think that I will deal with that point first. It 730 is not a Consolidation Bill; it is a Statute Law (Repeals) Bill—
§ THE LORD CHANCELLOR
Forgive me, but it is not a Consolidation Bill; it is a Statute Law (Repeals) Bill. If I may further comfort my noble friend—it is partly my fault—when I was moving that the House should resolve itself into a Committee I should have uttered certain ritual words which have been agreed upon by somebody or other and which I will now utter, if I may, at an inappropriate place. I should have said: "I should inform the House that this is a Bill prepared by the Law Commission to promote the reform of the Statute Law by the repeal, in accordance with Law Commission recommendation, of certain enactments which, except in so far as their effect is preserved, are no longer of practical utility". In this case the Joint Committee on Consolidation Bills made five Amendments to the Bill and were of opinion that, apart from the effect upon certain enactments of those Amendments, the remaining enactments proposed in the Schedule to the Bill for repeal were obsolete, spent, unnecessary, superseded or no longer of practical utility; and in consequence they approved the repeal of those enactments. The Committee decided by a majority—which was nine to one—to include the repeals made by Part I of the Schedule to the Bill.
I now come to the matter—because it is there and because it is the matter we are now discussing—contained in the Amendment proposed by my noble friend Lord Massereene and Ferrard. It is not a Consolidation Bill, it is a Bill with the characteristics which I have just described. I am sure that the whole Committee will feel nothing but admiration for the way in which my noble friend Lord Massereene and Ferrard has discharged his honourable obligation to his fellow Irish Peers, both now and also on previous occasions. They will also recognise that nothing could be more disinterested on his part, since though he possesses, if I am not mistaken, two Irish Viscountcies and two Irish Baronies, his tenure in this House is by secure possession of a United Kingdom Peerage of ancient right and he is therefore almost a House of Lords in himself.
731 I must join with other noble Lords—in spite of the persuasion of my noble friend Lord Moyne and my noble friend Lord Cork and Orrery—in regretting that I cannot yield to the arguments. Since the matter is bound to cause disappointment to those who hold Irish, but not United Kingdom, English or Scottish Peerages. I feel that I should give my reasons in detail. I seems to me that the arguments are overwhelming. If I may just deal with the one point put by my noble friend Lord Colyton. which I thought was answered adequately by my noble and learned friend Lord Dilhorne, it really must be the case that if it can be established, both as a matter of politics and as a matter of law, that there is nothing left in the enactments proposed to be repealed, they are properly put in the Schedule to a Statute Law (Repeals) Bill as being obsolete, spent, unnecessary and of no practical utility at all at the present day.
I hope that nothing I say will be construed as in any way disrespectful of Irish Peers. We have a number of them in this House. En addition to my noble friend the Lord Chairman of Committees, they include the noble Earl, Lord Longford, and many others. They are a most estimable body of men, but not all estimable men a re entitled to be in, or to elect representatives to this House as Peers of Parliament, and it is that question that we are now considering. Of course, as my noble and learned friend Lord Dilhorne has reminded the Committee. Irish Peers, like the Scottish Peers, were deprived by the relevant Acts of Union of any effective right to sit in their own Parliaments, which originally were separate Parliaments. Instead, they were given the right in each case to elect representative Peers to the United Kingdom Parliament. In the case of a Scottish Peer, it will be remembered that this election took place every Parliament, but in the case of the Irish Peers the elections took place for life. By contrast, the Irish Peers could be elected to the House of Commons—which is contrary to what the noble and learned Lord. Lord Gardiner, said, I think per incuriaim —although not for Irish constituencies and they were constantly so elected. On the other hand, they did not have the right to vote in this Parliament unless by 732 a curious paradox they were actually elected as Members of the House of Commons when they did have the vote.
Even this was conceded to them in 1963 when they were made the equivalent of commoners for all purposes. The reason why in 1963 they were made the equivalent of commoners for all purposes was precisely because Parliament, having discussed the matter in 1963, came to the conclusion that their right to elect representatives did not exist. That is what the noble and learned Lord, Lord Gardiner, was saying. The reason why it did not exist was as follows: the machinery for election depended in practice upon the existence of the Office of Lord Chancellor of Ireland and some other offices, one of which the noble and learned Lord referred to. Since these Offices were abolished by the Treaty which brought the Irish Free State into existence no elections have taken place.
The reason in fact why no elections have taken place is not a coincidence by any possible chance. It was not an act of omission on the part of the framers of the Treaty; it was always intended that the existing representative Peers should be allowed to continue so long as they lived and no more representatives should be elected. I well remember my father, who was Attorney General at the time the Irish Treaty was passed, explaining this to me in clear language. He said that the understanding was that the Irish representatives would die out in course of time and it was deliberately not thought suitable that the Peerage of a United Ireland should continue to be represented as such after the creation of the Irish Free State. He went on to explain to me, many years ago, that Northern Ireland remained a part of the United Kingdom, but representation in the Upper House of this Parliament could be catered for by United Kingdom Peerages; and that there were two Houses in the Stormont Parliament, and the House of Commons here, in which Irish Peers could sit. That is a fact. In fact no new Irish Peers did sit, and in 1961 the last Irish Peer died out.
Lest anyone should think that my recollection of what my father told me as a boy is, by some means, mistaken, let me tell the Committee what I think has not hitherto been published or known, that he did give an Opinion as a Law 733 Officer, with Sir Thomas Inskip—he was Attorney General—on this very point. It is not without significance that he gave an opinion as a Law Officer on this very point in 1925, the year after the Maugham /Greene Opinion. I have been at pains to secure that opinion. It is quite clear, although it is not referred to by name in the case to counsel, that every argument in the Maugham /Greene Opinion is reproduced for his and for the Solicitor General's consideration. It was perfectly before him, and the Solicitor General, in 1925. He was asked a number of questions—and as it is a Law Officer's Opinion I am entitled to refer to it—the first of which was: are the provisions of the Act of Union relating to representative Peers of Ireland repealed or otherwise materially affected by the legislation creating, and consequent upon the creation, of the Irish Free State? Then there were a number of other questions which they were asked.
In answer to that question, he and the Solicitor General used this unequivocal language:Our answer to the first question is in the affirmative. The constitution of the Irish Free State as a self-governing Dominion is in our opinion inconsistent with the continued right of the Irish Peers to be represented in the Imperial Parliament; and the destruction of the machinery requisite for the election of such Peers is in our opinion a sufficient indication that Parliament, in setting up the Irish Free State, regarded the right of Ireland to representation in the House of Lords as determined. The right given to Northern Ireland to vote herself out of the Free State does not give her a right to be represented in the House of Lords: that right was not one conferred by the Act of 1920 on Northern or Southern Ireland, and further there is no such dignity as a Peerage of Northern Ireland.Nothing could be more unequivocal than that. It was the opinion of the Law Officers of the Crown in 1925, on a case which deliberately reproduced the substance of the Greene/Maugham opinion, which was effectively demolished at rather greater length than I have wearied the Committee by giving. That was as long ago as 1925. The idea that we are abolishing any right of anybody to-day is something which cannot bear the smallest scrutiny.
The House has been reminded of the many occasions since then on which this same right has been put forward, after it had been disposed of completely by the Law Officers of the Crown in 1925. It 734 was raised by the Joint Select Committee on House of Lords Reform, and they recommended that no renewal of the right to elect Representative Peers of Ireland should be made. The Peerage Act 1963 put the Peers of Ireland on the same footing as commoners in this country, so that they could vote for the House of Commons, unlike ourselves, and could sit in the House of Commons, unlike ourselves, precisely on the ground that the right of election of Representative Peers had by that time disappeared.
In 1965 came the Petition of the noble Earl, Lord Antrim, on behalf of the Irish Peers, to which the noble and learned Lord, Lord Gardiner, has referred. The matter was gone into at length in exhaustive arguments by counsel in front of a Committee as dignified and as representative as a Committee could well be imagined to be, containing five Law Lords, an ex-Prime Minister, the noble Marquess, Lord Salisbury, and almost everybody of account in the House at that time. That Committee came unanimously to the same conclusion, reported that this right had been extinguished; and that opinion was endorsed by the House by Resolution, after debate. What there is left to talk about, I really do not know. This is a Statute Law (Repeals) Bill, and the purpose of the Bill is to get rid of enactments which no longer have any practical utility at all and I should think that this was as clear an example as exists of such an Act, except perhaps the Act to pay annuities to dependent Royalty, referred to by my noble friend Lord Cork and Orrery.
§ LORD MOYNE
My Lords, perhaps my noble and learned friend, before he sits down, would tell the House how it is that the Joint Committee on Consolidation Bills have amended a Bill, which he has told us is not a Consolidation Bill.
§ THE LORD CHANCELLOR
My Lords, that is one of the functions of the Joint Committee, conferred on them by Parliament. They have the function of considering Statute Law (Repeal) Bills as well as Consolidation Bills.
§ 5.4 p.m.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, may I reply to the noble and learned Viscount, Lord Dilhorne, who asked why the opinion of Lords Maugham and Greene was not 735 put before the Committee for Privileges by the Irish Peers. The reason is that by some extraordinary oversight this was overlooked. I know that this sounds typically Irish again. This oversight was a most unfortunate one. That is why I asked in the debate, when the House was asked to receive the Report, that the Committee should go back again and consider the Maugham/Greene opinion. The failure to put before the Committee the Maugham /Greene opinion I was entirely due to an oversight, and I admit that it was rather an extraordinary oversight. What worries Irish Peers is that not all lawyers agree about the subject. If they were all agreed, we should be quite happy.
§ THE LORD CHANCELLOR
My Lords, may I say to my noble friend that although I know that in 1924 two very distinguished lawyers gave another opinion, I do not know anyone who has expressed one since?
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, I have one here, that of the noble and learned Lord, Lord Wilberforce.
§ VISCOUNT DILHORNE
My Lords, if the noble Viscount will forgive me, the noble and learned Lord, Lord Wilberforce, agreed with the conclusions of the Committee, but, as so often happens, for reasons which differed.
§ THE LORD CHANCELLOR
My Lords, if the noble Viscount will forgive me, what the noble and learned Lord, Lord Wilberforce, said was that he agreed with the Report, which had in it this sentence:The right of election of Irish representative peers no longer exists.It cannot be plainer than that, and that is what we are discussing.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, the noble and learned Lord also said:I confess to some reluctance in holding that an Act of such constitutional significance as the Union of Ireland Act is subject to the doctrine of implied repeal or of obsolescence.I agree that the noble and learned Lord eventually came round to the conclusion of the Committee. But that is the way of lawyers.
I should like to thank all noble Lords who have taken part in this debate, which I think has been worth while. If I may get away for a moment completely from the legal aspect, it seems to me extraordinary that we have coming to this House every year, like salmon coming up the river in spring, waves of Life Peers. I think that here we could have a little element of democracy. We have a large group of Irish Peers, many of whom are eminent men—great soldiers, sailors and airmen, authors: their ramifications are immense—and I cannot see that there would be anything wrong in allowing them to elect a few of their number to sit in your Lordships' House instead of having Peers who are always appointed by the patronage of a Prime Minister. I agree that this has nothing to do with my Amendment, but I should like to make the point. I do not like to waste the time of the House and the time of the officials of the House, and even the paper that the Division Lists are written on. Therefore, with extreme reluctance—
§ 5.9 p.m.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 12; Not-Contents, 100.737
|Arran,E||Lauderdale, E.||Reigate, L.|
|Brockway, L.||Massereene and Ferrard, V.[Teller.]||Swansea, L.|
|Cork and Orrery, E.[Teller.]||Wynne-Jones, I|
|Aberdare, L. [Teller.]||Dundee, E.||Nugent of Guildford, L.|
|Amherst, E.||Eccles, V.||Nunburnholme, L.|
|Amory, V.||Emmet of Amberley, Bs.||Ogmore, L.|
|Ardwick, L||Ferrier, L.||Phillips, Bs.|
|Arwyn, L.||Gardiner, L.||Rankeillour, L.|
|Auckland, L.||Garnsworthy, L.||Ritchic-Calder, L.|
|Balfour of Inchrye, L.||Goschen, V. [Teller.]||Royle, L.|
|Barnby. I.,||Greenwood of Rossendale, L.||Sainsbury, L.|
|Belsttad, L.||Gridley, L.||St. Just, L.|
|Beswick, L.||Grimston, of Westbury, L.||Salisbury, M.|
|Birk, Bs.||Hacking, L.||Sandford, L.|
|Black ford, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Sempill, Ly.|
|Bourne, L.||Shackleton, L.|
|Brooke of Cumnor, L.||Hankey, L.||Shepherd, L.|
|Brooke of Ystradfellte, Bs.||Hives, L.||Somers, L.|
|Buckinghamshire, E.||Hood, V.||Sorensen, L.|
|Burntwood, L.||Howard of Glossop, L.||Stamp, L.|
|Carrington, L.||Hoy, L.||Stonehaven, V.|
|Champion. L.||Hylton-Foster, Bs.||Stonham, L.|
|Colgrain, L.||Ilford, L.||Strang, L.|
|Collison, L.||Janner, L.||Strange of Knokin, Bs.|
|Colyton, L.||Jellicoe, E. (L. Privy Seal.)||Strathcarron, L.|
|Conesford, L.||Kinloss, Ly.||Strathclyde, L.|
|Cottesloe, L.||Leatherland, L.||Summerskill, Bs.|
|Craigavon, V.||Llewelyn-Davies of Hastoe, Bs.||Teviot, L.|
|Craigmyle, L.||Lloyd of Hampstead, L.||Teynham, L.|
|Davies of Leek, L.||Lovat, L.||Vivian, L.|
|De Clifford, L.||Malmesbury, E.||Wakefield of Kendal, L.|
|Delacourt-Smith, L.||Merrivale, L.||Wilberforce, L.|
|Derwent, L.||Milverton, L.||Willis, L.|
|Diamond, L.||Molson, L.||Wise, L.|
|Dilhorne, V.||Morris of Borth-y-Gest, L.||Woolley, L.|
|Douglas of Barloch, L.||Morris of Grasmere, L.||Wootton of Abinger, Bs.|
|Douglass of Cleveland, L.||Morrison, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ Schedule agreed to.
§ House resumed: Bill reported without amendment; Report received.