Barony of Farnham

HL Deb 05 July 1995 vol 565 cc1092-104

3.7 p.m.

The Chairman of Committees (Lord Boston of Faversham) rose to move that the report of the Committee for Privileges on the Barony of Farnham (HL Paper 85) be agreed to.

The noble Lord said: My Lords, it may be appropriate for me to give the House a very brief outline of what the Barony of Farnham case involved. The petitioner, Lord Farnham, is the holder of a distinguished Irish peerage. His grandfather was elected to represent the Peers of Ireland in your Lordships' House under the provisions of the Act of Union with Ireland 1800. Such Peers were elected for life and many of them continued to attend this House after the passing in 1922 of the legislation which set up the Irish Free State. However, there were no further elections of Irish Peers after 1922 so that their number dwindled with the passing of the years. In 1966 Lord Antrim and a number of other Irish Peers petitioned this House asking that elections should once again be held. That petition was referred to the Committee for Privileges, which reached the conclusion that the effect of the 1922 legislation had been to dismantle the electoral structure set up by the Act of Union and that no further elections could be made without further legislation. There the matter rested until Lord Farnham's petition. It was his contention that the continuation of the issuing of writs of summons to attend your Lordships' House after the passing of the 1922 legislation, together with the findings of the Committee for Privileges in 1966, meant that a barony by writ had been created in the person of his grandfather (the 11 th Baron) to which he, the 12th Baron, was the rightful heir. That, very briefly, was the case which was argued before the committee.

We were assisted greatly by the Attorney-General and by counsel for the petitioner, Mr. Jonathan Fisher. I should also like to record the gratitude of the committee for the written material submitted by Mr. John Lofthouse, junior counsel for the Crown. Mr. Lofthouse is, of course, an acknowledged expert in the arcane field of peerage law, and his valuable and fascinating memoranda helped the committee to understand the issues raised in this petition.

As always in peerage cases, the Committee for Privileges relies heavily on the assistance of the Lords of Appeal. On this occasion the committee was immensely indebted to the noble and learned Lords, Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Mustill and Lord Lloyd of Berwick. With their assistance, we found ourselves able to reach the unanimous conclusion which is embodied in the committee's report. We concluded that, in spite of Mr. Fisher's eloquence, the case had not been made out for the creation of a barony by writ. The noble and learned Lords, Lord Keith and Lord Jauncey, have provided the legal reasons for the committee's decision and those opinions are included in the printed minutes of proceedings.

Finally, I should like to add a personal word, although I believe that what I am about to say reflects the views of members of the committee. Although the petitioner, Lord Farnham, will no doubt have been understandably disappointed by our decision, I believe that it will be of some comfort to him to know that he performed a significant service, not only on behalf of his family but also on behalf of other members of the Irish peerage, the history of whose families is similar to that of his own. By ensuring that his petition was considered by your Lordships' House, Lord Farnham will, if your Lordships pass this Motion this afternoon, have enabled the matter to be settled once and for all and the uncertainty ended. That is a valuable service. I suspect that Lord Farnham would never have forgiven himself had he allowed the matter to go by default. I ask your Lordships to agree to the report of the Committee for Privileges. I beg to move.

Moved, That the report of the Committee for Privileges on the Barony of Farnham (HL Paper 85) be agreed to.—(The Chairman of Committees.)

3.12 p.m.

Lord Monkswell

My Lords, I beg to move the amendment standing in my name on the Order Paper.

I thank the noble Lord, Lord Boston of Faversham, our Chairman of Committees, for moving his Motion in such an able and succinct way. The House will be indebted to him for that. It is with some diffidence that I speak on the subject considering, as we are, a report of a committee of our House of eminent and learned colleagues. I am sustained by the knowledge that here, on the Floor of the House, we are all equal, with equal rights and duties to give our counsel. It is our duty, each of us equally, to consider this matter and to come to a judgment.

It has been suggested that I am speaking for the Irish peerage. Not so. I speak for the rights and privileges of Members of your Lordships' House. By virtue of the Act of Union of 1800 between Great Britain and Ireland, as the noble Lord explained, the Irish peerage elected 28 of its number to sit here in our House of Lords. They had a seat in the House for their lifetime, with the rights and privileges of other Members of your Lordships' House. When they died, an election was held for a replacement.

In 1922, the Irish Free State was set up. In 1966, the House agreed to a Privileges Committee Report (the Antrim case) which said: That the provisions of the said Act relating to the election of Irish 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". In that case Lord Dilhorne said in his opinion: In one sense the 28 elected peers were representative of the Irish peers who elected them just as the four lords spiritual who sat by rotation represented the other lords spiritual but it is to my mind clear that they were only elected to sit and vote on the part of Ireland. When the Free State and Northern Ireland were created, Ireland as an entity ceased to be part of the United Kingdom. It necessarily follows that there was no territory called Ireland to be represented in the United Kingdom Parliament and thereafter it was in my opinion no longer possible to elect an Irish peer to sit and vote in the House of Lords on the part of Ireland for to do so would have meant the election of peers to represent a territory which had ceased to exist as a political entity and as part of the United Kingdom. For these reasons, in my opinion that part of the Union of Ireland Act which provided for the election of Irish peers to the House of Lords must be regarded as having become spent or obsolete or impliedly repealed in 1922". My contention is that the implication of that judgment was that there was no basis for Irish Peers to sit in this House. In effect, the Act of Union of 1800 had been torn up. But some Irish Peers continued to receive Writs of Summons and sit in the House after 1922. Since there was no other basis for their sitting in this House, they sat by virtue of a Writ of Summons, and based on the precedent that there was effectively created for each of them a barony by Writ of Summons.

Lord Strabolgi

My Lords, I am sorry to interrupt the noble Lord, they sat after 1922 because they had been elected for life. It was agreed that they should continue to sit for their lifetime, although the right to elect further Irish Peers had ceased and was repealed in 1971.

Lord Monkswell

My Lords, I am sorry that the noble Lord did not listen closely to my remarks. When he reads them in Hansard tomorrow, he may consider them more fully.

I believe that there are fewer than six cases that meet the criteria. The Barony of Farnham is one of them. The present Baron Farnham is the grandson of the first creation—his father having died at El Alamein as a result of wounds. I believe that he should receive his Writ of Summons.

I have been a little concerned about some of the things said in the committee's proceedings; in particular, the reference to Irish representative Peers. We must draw a distinction between the method of selection of Peers and their situation once they have taken their seats in the House. I give the example of the Spiritual Bench in your Lordships' House. Its Members are effectively selected by the established Church (the Church of England) to sit in the House, but when they take their seats they speak for themselves. They do not speak for the Church of England.

We must recognise that those Irish Peers who sat by virtue of the Act of Union 1800 did not sit in this House representing Ireland; they sat in this House representing themselves, as we are all summoned to do, to give our counsel and not represent any outside interest.

Some of us sit in this House by virtue of ancient, or less ancient, titles; and some sit by virtue of statutory provision, and receive Writs of Summons by virtue of those Acts. If those Acts were repealed, the basis for the seat would be removed, but if they receive the Writ of Summons, and take their seat, there would be conferred on them a barony by Writ of Summons.

In conclusion, I should like to quote the words of a counsel for James, Duke of Atholl, in 1735, who said: They insisted likewise that when any one is called to the House of Peers and actually sits there his Blood is thereby ennobled and his Lineal Heirs will be so for ever afterwards". I hope that the House will uphold the ancient rights, and it is on that basis that I beg to move.

Moved, as an amendment to the above Motion, leave out ("agreed to") and insert ("referred back to the Committee for Privileges for reconsideration").—(Lord Monkswell.)

Lord Hailsham of Saint Marylebone

My Lords, I hope that we shall not take a great deal of trouble to listen to the debate on this amendment. Basically, it is nonsense.

Looking around the House, in particular at the Benches behind me, I see that a few Baronies by Writ now exist. My noble friend Lord Mowbray and Stourton may be one and my noble friend Lady Strange may be another. Although they existed prior to the 17th century, they were validated in the 17th century by the Committee for Privileges because there was the anomalous practice of medieval monarchs issuing writs without Letters Patent. They are the only peerages by writ which can exist, and they exist only in the peerage of England and not in the peerages of Ireland, Scotland or the United Kingdom. There is not an ancient right, except in respect of those who already possess them and their descendants.

Since the 17th century, peerages of all kinds—whether in the peerages of Ireland, Scotland, England, Great Britain or the United Kingdom—have been limited by Letters Patent. The descent descends only to the heirs male of the body because that is how the Letters Patent are framed. As appears from the report, the Barony of Farnham was not a peerage of the United Kingdom but of Ireland. Effectively, it no longer exists. It was established by Letters Patent and the descent, therefore, descends only to the heirs male of the body by reason of the Letters Patent and not by virtue of any writ received.

The matter does not stop there. The barony from which the noble Lord's amendment descends was a barony to sit in this House for life. That is all it was. It gave no right of descent per se to its successors. In fact, for reasons referred to by the noble Lord, Lord Monkswell—I must not be taken to accept the context in which he put them—it has been held that the habit of electing representative Peers to sit in this House arose solely by statute under the Act of Union with Ireland, which has since gone by the board and disappeared into the realms of history. There never was anything else to it.

Such Peers sat for life, and that was the only right that they had. When they died no one else succeeded them. It was a barony for life created by statute, which is now obsolete and, in effect, repealed. That is all there was to it. This appeal is as near unarguable as a point of law as anything I have ever seen. I ask the House not to waste a great deal of time discussing it but to reject it out of hand.

The Earl of Longford

My Lords, I am sorry to disagree with the noble Viscount. I do not believe that this is a waste of time—

Lord Hailsham of Saint Marylebone

I am not a Viscount!

The Earl of Longford

My Lords, no, in no way. For a number of reasons, I wish that I could support the noble Lord, Lord Monkswell. First, he stands for a tradition of independence while preserving loyalty to the party, which is enviable and should be preserved in this House. In many years from now he may occupy the kind of position which is occupied by my noble friend Lord Bruce of Donington. But that is some way off. In the meantime, I hope that he will subordinate his independence to his loyalty in order to achieve office in the next administration.

As I am wearing an Irish Rugby Union tie which was given to me by an Ulster protestant, I am prejudiced in favour of anything that would produce more Irish influence in this House. Of course, County Cavan is wonderfully well situated for that purpose. It is in Ulster and it is also in the Irish Republic. In that sense, I am on his side.

It would be unwise of me to say that I am the only person but perhaps I am one of the few people who played tennis as a partner with the late Lord Farnham. I am greatly indebted to him because he helped me to reach the final of the County Cavan tennis tournament. He was what we call in England the local squire. Farnham Castle dominated the county courts and therefore we were given a colossal handicap. The late Lord Farnham was a fine man and we reached the final of the tournament. The local young men were terrified of the great Lord who presided over the whole scene at Farnham Castle and the courts at County Cavan. A couple of unimpressionable young fellows, who were Davis Cup players, came from Dublin. They had never heard of Lord Farnham or of me and so they swept us aside. However, we got as far as the final and I was in partnership with Lord Farnham. Afterwards, I apologised to him and said, "I am afraid that I let you down". He said, "You can't keep going all the time". I suppose that that was well meant but it did not console me very much. At any rate, perhaps that can be said about this case. He reached the final but he could not keep going all the time and win.

I have another recollection of Lord Farnham which I must give because I believe that it will endear him to the House, whatever the result of the Motion. Every year there was a tennis dance at Farnham Castle, overlooking the courts. Every year Lord Farnham, who was a loyal Britisher, insisted on "God Save the King" being played. It was during the 1930s. Of course, a number of local nationalists would walk out and therefore there was always a question of whether the dance would take place.

I hope that when we in this House think of Lord Farnham—this House is the most loyal of British Chambers—we shall think of him having "God Save the King" played 15 years after the signing of the treaty. That was the only place in Ireland where it was played and his memory should be happily preserved. However, I am afraid that I cannot vote for the amendment.

Lord Jauncey of Tullichettle

My Lords, having delivered one of the opinions in the report, perhaps I may make a few comments. The position is very simple. What was referred to the committee was the determination of whether the 11th Baron Farnham was created a Baron of the United Kingdom. He was the 11 th Baron and a hereditary Irish Peer. He was elected as one of the 28 representative Peers of Ireland prior to the separation of Ireland and the constitution of the Irish Free State. The first question before the committee was whether, when he continued to sit in your Lordships' House after 1922, when the Irish Free State was separated from Great Britain, he sat by virtue of election for life before 1922 or whether he sat by virtue of some other reason.

If he sat by virtue of his election for life that was the end of the matter. The petitioner never suggested that a Barony by Writ could have been created in him if he was there by virtue of his election. The creation of a Barony by Writ could have arisen only if he ceased to have the right to sit by virtue of his election and he sat by virtue of his Writ of Summons.

The committee had no difficulty in concluding that he was elected for life. He sat for life by virtue of his election and, accordingly, no possible question could have arisen as to the creation of a Barony by Writ.

I should say to the noble Lord, Lord Monkswell, that if any Member of this House who sat here by virtue of a Writ was automatically created a Baron by Writ it would have followed that all the 16 Scottish representative Peers who sat between 1707 and 1963 would, by their Writ of Summons at the parliament in question, have been created Baron by Writ. They would have been hereditary Peers with the right to sit in this House without regard to the election of the 16. Nobody ever suggested such an idea. In my submission, it is absolutely clear that no question of a Barony by Writ arises here, even if there were a competence, these days, to create it.

The committee considered fully the matters raised by the noble Lord, Lord Monkswell, and reached a unanimous conclusion on the matter. I therefore support the Motion put forward by the Chairman of Committees.

Viscount Mountgarret

My Lords, it is only fair that somebody should speak in defence of the unfortunate Irish Peers. I declare an interest to the extent that I am an Irish Peer by senior title and at one stage I was chairman of the Irish Peers Association. I recognise that it is extremely difficult to justify representing something which does not exist. However, having said that, I find that members of the Irish Peerage have rather adopted the role of the Flying Dutchman—they have nowhere to go. They are not dissimilar to the late Sir Winston Churchill who at one time during his illustrious career, I think I am right in saying, found himself without a party, without a constituency and without a bottom. That situation is rather similar to that of the Irish Peers.

It would be rather brave and some may think rather arrogant to take on the expert wisdom of the noble and learned Lords who are Lords of Appeal in Ordinary who were members of the Committee for Privileges, some of whom I see in their places today. They have had the benefit of extensive advice which I cannot put before the House because, as my noble and learned friend Lord Hailsham said, we do not wish to waste too much time on this matter. But I emphasise that this is the last call to supper as it were for the Irish Peers. I perceive, and the association perceives, that they have had their privileges and rights somewhat undermined.

I know that my noble and learned friend Lord Hailsham is of a mind to reject most things that might be said which are contrary to the opinion reached by the Committee of Privileges. He will correct me if I am wrong but I believe that he said that a Barony by Writ exists only for life.

Lord Hailsham of Saint Marylebone

My Lords, I never said anything of the kind and I am in the recollection of the House.

Viscount Mountgarret

My Lords, I am grateful to my noble and learned friend. I had thought that that is what he said and, of course, that is not right. A Barony by Writ is created for the descendants and so on.

The Committee for Privileges paid a great deal of attention to the provisions of the Act of 1800. The wording early on in one of the paragraphs showed that it appeared to be the intention of the Act that Peers would be elected to Westminster by their number to represent a part of Ireland.

That was accepted by the Committee for Privileges and it gave due credence to that. But I must point out that the same paragraph states that: all Peerages of Ireland created after the Union shall have Rank and Precedency with the Peerages of the United Kingdom, so created, according to the Dates of their Creations: and that all Peerages both of Great Britain and Ireland, now subsisting or hereafter to be created, shall in all other respects, from the Date of the Union, be considered as Peerages of the United Kingdom; and that the Peers of Ireland shall, as Peers of the United Kingdom, … enjoy all Privileges of Peers as fully as the Peers of Great Britain". I do not believe that the Act of 1922 repealed anything in relation to that which I have just quoted. If that is so, one could raise an argument that rights and privileges of the Peers of Ireland have not so much been removed as fallen into abeyance because nobody paid a great deal of attention to that matter, which is rather sad.

As my noble friend the Chairman of Committees said, we are extremely grateful to Lord Farnham for going ahead with his Petition as it gives us the opportunity to clarify the situation and at least we shall go down with all flags flying. I believe that the Irish Peers have been unfairly treated.

In the fourth article, it is deemed that the Irish Peers represented part of Ireland. It has been argued with some justification that under the Irish Free State (Agreement) Act 1922, Ireland did not exist politically and therefore it was impossible to have any representation of Ireland as it just did not exist. If that is accepted, as I am sure it is, I do not deny it; and if the Irish Peers were not representing Ireland, who were they representing? If the noble Lord, Lord Monkswell, is arguing that they were representing nobody and they were representing themselves, then a continued Writ of Summons being received each time that there was a new parliament would seem to suggest that there is a strong case for arguing that a Barony by Writ has been created.

On the other hand, if the Irish Peers were representing a part of Ireland and Northern Ireland is still a part of Ireland, and Ireland did not exist politically, then they had to represent someone and it could be argued that they were representing the Peerage of Ireland. There were Peers in Ireland well before 1800 and many Irish families paid great service to their country. They were of great assistance in relation to matters connected with Ireland and this country. It would be a pity if that relationship were to be removed because of a doubt about the correctness of the decision of this Committee. What will happen in the future? In 1800, it was not thought possible that the union of Ireland and Great Britain would ever come to an end. Therefore, no provision was made in the Act for the termination of that union. Similarly, under the Irish Free State (Agreement) Act 1922, I am sure that noble Lords will agree with me, there appears to be no possibility of a union of Ireland with this country. But we do not know. That could happen. If Peers of Ireland were permitted to sit in this House by Writ, as some would be, they might be able to assist your Lordships. I shall not detain your Lordships any longer.

Noble Lords

Hear, hear!

Viscount Mountgarret

My Lords, I believe that the Irish Peers have suffered rather badly. I do not think that their treatment has been entirely right; indeed, there are arguments on their side. However, I detect the feeling of the House and I believe that it would be wrong for us to go back to the Committee for Privileges, which consists of several noble and learned Lords. On that basis, I cannot support the amendment moved, with understanding, by the noble Lord, Lord Monkswell.

Lord Jauncey of Tullichettle

My Lords, before the noble Viscount sits down, could he read to the House the last sentence of the fourth article, following on the reference to Peers of Ireland enjoying privileges of Great Britain—a sentence which he did not read to us and which I believe your Lordships may find to be relevant?

Noble Lords

Oh!

Lord Jauncey of Tullichettle

My Lords, in the circumstances, perhaps I may read it for him. It says that Peers of Ireland, shall enjoy all Privileges of Peers as fully as the Peers of Great Britain; the Right and Privilege of sitting in the House of Lords, and the Privileges depending thereon, and the Right of sitting on the Trial of Peers, only excepted".

Lord Mowbray and Stourton

My Lords, I shall not detain your Lordships for long. I am slightly amazed to hear some of the speeches that have been made today. I had the honour of sitting on the Committee for Privileges where we were very well advised by the learned Attorney-General and the learned counsel, Mr. Fisher, on behalf of Lord Farnham, who I must confess is a personal friend of mine and whom I should have loved personally to see in this House. But we do not do such things in the way that the noble Earl, Lord Longford, seems to imagine, on the ground of whether we sing The King after dinner. If that is the law of the land now, God help us. If we sing "The Red Flag", do we go under Russia, or what?

However, it is nothing to do with that. I do not believe that some of the people who have spoken today can really have read the report of the Committee for Privileges. My noble friend Lord Mountgarret talked about the unfair treatment of the peerage of Ireland. With all honesty—and I am the first one to defend Peers of any sort—I do not think that they have been unfairly treated; indeed, they have been treated fairly. If your country is abolished as part of a kingdom, it is not anyone's fault: it is the opinion of politics which has taken place.

I have one further small point to make. The noble and learned Lord, Lord Hailsham, addressed Mowbray and Stourton. I have to say that only Mowbray is by Writ, although Segrave is by Writ (my other one). Stourton is by Letters Patent. I believe that we owe a great debt to the noble and learned Lord, Lord Jauncey, and to the other noble and learned Lords on the committee. We were admirably advised and we were all unanimously convinced by the arguments put forward. No one goes into such matters with preconceived views. One listens to the case. The case as put in the paper of Lord Farnham was admirably argued. Like the noble Lord, Lord Strabolgi, I am totally amazed as to why people should be trying to fight the case as though there are enemies about trying to do them down. It is a matter of simple law to which we all listened with great interest and which has been admirably explained by the noble and learned Lord, Lord Jauncey.

Lord Glenamara

My Lords, I was a member of the committee and should like to say just a few words. There is a small constitutional point involved which has not been mentioned. There is a theory, which has some validity in history, that an hereditary barony can be created if a Writ of Summons is issued in error; indeed, there are one or two cases in history where that has happened. After 1922, the Writs of Summons continued to be issued, although perhaps they ought not to have been. Whoever sends them out kept on doing so. But it was made absolutely clear that they were for life. Therefore, in this case, an hereditary barony could not be created because the Writ of Summons made it abundantly clear that they were for life. Thus the petition must fail. I am very sorry, but I must oppose the amendment moved by my noble friend. I hope that your Lordships will do likewise.

3.45 p.m.

Lord Bruce of Donington

My Lords, in view of the fact that my noble friend Lord Longford introduced my name into the matter, perhaps I may ask the leave of the House to be exempt from the proceedings.

Lord Strabolgi

My Lords, as a member of the Committee for Privileges, perhaps I may just say a few words. First, as my noble friend Lord Glenamara said, the Irish Peers did not sit by mistake. There was an original theory when we first began to sit that the Writs had been sent out by mistake after 1922. However, that was proved not to be so. They sat because they had been elected for life. Before 1963, the Scottish Peers were elected for the Parliament, but the 28 Irish Peers were elected for life. That was the reason that they were allowed to sit after 1922 until the last of them died—namely, the Earl of Kilmorey—in 1961.

We relied very much on a view of the Law Officers of the Crown very shortly after Irish Independence in a document dated 1925. One of them was Sir Douglas Hogg, the father of the noble and learned Lord, Lord Hailsham, and the other was Sir Thomas Inskip. They said: It may well be contended that if the effect of the Irish Free State Agreement Act is to take away the right of the Irish Peers to be represented in the House of Lords, the existing representatives have no longer any right to be there. On the whole we have come to the conclusion that this argument is not well founded. We regard the Act of Union as conferring on the Irish Peerage the right to elect 28 of their body to sit for life as their representatives in the House of Lords: but we think that each representative Peer had conferred on him by the fact of his election the right to sit for life in the House of Lords and we do not regard that right, which is nowhere expressly dealt with, as necessarily taken away from the existing representatives by the legislation of 1922". That is the point. They did not sit by accident which created the question of a Barony by Writ, although I may say here that, with all the precedents of Baronies by Writ which had been perhaps created by accident, there had always been an intention to create a peerage.

Further, I understand that no report of the Committee for Privileges, of which I have the honour to be a member, has ever been rejected by this House since the petition in the Rhondda case which was sent back by the Lord Chancellor of the day in the early 1920s for very different legal reasons. Otherwise, there is absolutely no precedent for what my noble friend Lord Monkswell, in his inimitable way, is attempting to do. Therefore, I hope that your Lordships will reject the amendment.

The Chairman of Committees

My Lords, I believe that the House would probably expect me to offer a few observations in reply to the amendment as moved by the noble Lord, Lord Monkswell. In doing so, perhaps I may thank the noble Lord for notifying me before he tabled his amendment that he was proposing to raise the matter in some way. Similarly, I should also like to thank the noble Viscount, Lord Mountgarret, for having also warned me beforehand that he intended to intervene in the debate. Further, I should like to thank all noble Lords and noble and learned Lords who took part in the debate. But, as a number of them have spoken, perhaps they will forgive me if I do not refer to each of them by name. I am especially grateful to the noble and learned Lords, Lord Hailsham of Saint Marylebone and Lord Jauncey of Tullichettle, for their contributions on the legal matters involved in the case.

In replying to the noble Lord, Lord Monkswell, it might be helpful if I were to remind your Lordships of what it is that your Lordships' House is actually being asked to do. Before doing so, I should like to refer to the remarks made by the noble Earl, Lord Longford, which were, if I may say so, most entertaining. However, I must confess that I did strain myself during the course of his speech to ascertain the precise relevance of what the noble Earl was saying to both the Motion and to the amendment. But then it came to me all in a flash: it was a speech that had to be made; after all, this is Wimbledon Fortnight.

A petition for a Writ of Summons to this House is not a petition directed to your Lordships: it is a petition to the Queen. On the advice of the Home Secretary and the Law Officers, Her Majesty the Queen refers the petition to this House so that the House may advise Her Majesty as to the law with regard to that petition. By long-established practice such petitions are referred to the Committee for Privileges which under Standing Order 75 is required to sit with the assistance of no fewer than three Lords of Appeal. We of course had four. When agreed to by the House, the decision is submitted to Her Majesty in the form of a judgment preceded by the words: It is resolved and adjudged". Such a decision is not therefore the opinion of a majority of your Lordships but a judgment. It is a judicial proceeding analogous to, although not wholly comparable with, a judgment following a hearing before an Appellate Committee. In those circumstances your Lordships may feel that the House should only rarely and for exceptionally compelling reasons seek to interfere with the report of a committee based on a judicial hearing at which Lords of Appeal were present and where those Lords of Appeal have given their judicial opinions.

The amendment of the noble Lord, Lord Monkswell, is in the form used in 1922, as the noble Lord, Lord Strabolgi, mentioned in the course of his remarks, which was the last occasion when this House asked the Committee for Privileges to reconsider a peerage case—the position of Viscountess Rhondda. On that occasion, as the noble Lord, Lord Strabolgi, reminded us, it was the Lord Chancellor who moved the amendment and he explained that he was taking that unusual course because in his view the Attorney-General had not put to the committee the relevant points of law—that is the significant word, as your Lordships will appreciate—which ought to have been considered.

On that occasion the House agreed to refer the matter back to the committee and the committee, having considered those points of law, made a second report in exactly the opposite sense from its first report. It is of course a matter for your Lordships, but the House may feel, particularly in the light of what the noble and learned Lord, Lord Jauncey, has said as a member of the Committee for Privileges, that the Rhondda case does not provide a suitable precedent for the present case in that there are no new legal arguments which would justify us asking the committee to consider or to reconsider the matter all over again.

I feel bound to add that if the committee were to consider the matter further, I have no doubt whatever that it would come to precisely the same conclusion. With these points in mind, and with that background and the background indicated by other noble Lords in the course of this short debate, I hope that the noble Lord, Lord Monkswell, will feel able to withdraw his amendment. If he felt unable to do so, I would be bound to advise your Lordships that it would be right not to support the amendment.

Lord Monkswell

My Lords, I thank all noble Lords who have contributed to the debate, which has been useful and informative. I wish to refer to a number of the submissions that have been made. In doing so I would advise the House that I am minded to withdraw my amendment but I think it would be for the courtesy of the House if I explained why. If I did not do so, the House would not be correctly advised.

The noble and learned Lord, Lord Hailsham of Saint Marylebone, in his inimitable style, discounted the ancient right of the creation of barony by writ of summons. I am not sure that he intended lèse-majestlé—I am sure that would be a wrong interpretation—but we have as part of the proceedings of the committee a report which, as I believe the noble Lord the Chairman of Committees has advised us, was written by an expert on peerage law. It states that, the Crown has the right to issue a Writ of Summons either (i) to a person who does not have a peerage at all, or (ii) a person whose peerage does not entitle him to a Writ of Summons". I believe that that right still exists for the Crown.

The noble and learned Lord, Lord Hailsham, also said that the Barony of Farnham no longer exists. It does exist but the old Barony of Farnham does not entitle the holder to a seat in this House. The noble and learned Lord also said—and this is where I think he supported my argument—that the Act of Union had gone by the board.

The noble and learned Lord, Lord Jauncey—I am indebted to him for his contribution to this debate, which was welcome—advised the House that Lord Farnham continued to sit by virtue of election for life. This is where I take issue with the committee in the sense that it did not consider the basis on which that election for life was founded. My contention is that it was founded on the basis of the Act of Union of 1800. A number of noble Lords have effectively said, and the House has effectively said, that in the consideration of previous privileges committees it no longer existed after 1922. The noble and learned Lord made reference to the Scottish Peers. A number of them sat between 1707 and 1963 by virtue of that Act of Union which was not changed until 1963. The noble and learned Lord also suggested that it was not competent to issue a barony by writ. I have referred to that.

I am indebted to the noble Lord the Chairman of Committees for reminding the House that this is consideration of a petition to Her Majesty and we sit in a judicial capacity in this sense. However, I would point out to the House that we are all equal in sitting in that judicial capacity.

I now come to the reason for withdrawing my amendment. That reason was given by the noble Lord, Lord Glenamara. He referred to a matter which I did not notice because it was not included within the proceedings—I can quite understand why—and that is that the writ of summons received by Lord Farnham had inscribed within it a condition that it was for life. That is the legal basis on which we can agree this Committee for Privileges report. I hope that we are not in error in presuming that the wording of that writ of summons makes it clear that it was only entitling the holder to a seat in this House for life because, as the noble Viscount, Lord Mountgarret, pointed out, I suspect that this is the last opportunity we may have to put this matter to bed. I beg leave to withdraw the amendment.

Amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to, and it was ordered that the resolution and judgment be laid before Her Majesty by the Lords with White Staves.