House of Lords Bill (Hansard, 29 April 1999)

HL Deb 29 April 1999 vol 600 cc516-40 516

§ 8.24 p.m.

§ House again in Committee on Clause 1.

§ On Question, Whether Clause 1 shall stand part of the Bill?

§ Lord Trefgarne
My Lords, we have had a long and interesting debate on many different aspects of Clause 1. I do not propose to go over those again now. although some of my noble friends may have one or two points to raise.
Clause 1 is the heart of the Bill—the very essence of the Bill (if that is the right expression). My noble and learned friend Lord Mayhew expressed some anxieties about how the clause may or may not work, and may speak further about that.
I note that under the Explanatory Notes the Bill states that the Baroness Jay of Paddington, referring to section 19(1)(a) of the Human Rights Act 1998, stated: In my view the provisions of the House of Lords Bill are compatible with the Convention rights". 517 I hope that the noble Baroness is right. There is a problem—I hope that it can be resolved quickly—arising from the European Convention on Human Rights. When, or if, the Bill is passed, virtually all hereditary Peers will cease to be Members of this House. Quite rightly, they had no vote at the last general election and will not now be able to vote until the next general election. Therefore, for the period between the coming into force of the Bill and the next general election they will not exist under a government to whose election they have contributed. I am advised that that is doubtfully legal under the European Convention on Human Rights. I wonder, therefore, whether the noble Baroness was not a little hasty in attaching the certificate to the Bill. I hope that she will be able to assure us that that is not the position.

§ Lord Mayhew of Twysden
My Lords, during the course of the Bill I wonder whether I was alone with the sad suspicion that the Government were not listening with much care, if at all, to the arguments addressed to them on this clause. It is clear that I was not alone because we have heard my noble friends Lord Peyton and Lord Ferrers making much the same point. I feel the position so keenly that I wish to make clear to the noble Baroness and other Ministers that I have been listening to their argument.
That is simply done because the Government have only one argument: it is called the manifesto. I cannot think of any more persuasive way of demonstrating that I, at least, have listened to the Government's argument than to read the manifesto. At the end, I rather hope that the noble Lord, Lord Richard, and others will not shout "Hear, hear" because the purpose of my reading it is to show that I have already heard. The material passage is as follows: As an initial, self-contained reform, not dependent on further reform in future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute".

Noble Lords
Hear, hear!

§ Lord Mayhew of Twysden
That shows that noble Lords have not been listening to my argument. The right to sit and vote in the House of Lords will be ended by statute.
If I have described that pledge as the heart of the matter, I reckon that I shall carry with me the agreement of all noble Lords and noble Baronesses opposite. When formulating legislation it is important to make the language used relate to the heart of the matter.
I regret that the noble and learned Lord the Lord Chancellor is not here. No doubt he has other pressing business. I indicated to him that I wanted to make some mild criticism of his speech last Tuesday in particular in response to Amendment No.10A, the new clause. I am sorry he is not here because he has made it abundantly clear that it is important for legislation to get to the heart of the matter. As we established last Tuesday, he was kind enough to write a letter to my noble friend Lord Strathclyde, indicating that, whereas the parliamentary draftsman had considered a number of alternative 518 approaches to securing the purpose of the Bill, he had selected the language of the Bill because he wanted to get to the heart of the matter.
I am glad to see the noble and learned Lord the Lord Chancellor now in his place. I was saying that on Tuesday we had elicited that the Lord Chancellor sees great virtue in getting to the heart of the matter in the language used in legislation. He convinced us as much in the letter that he kindly wrote to my noble friend Lord Strathclyde, explaining why the draftsman opted for the language that we now have before us in Clause 1.
However, on Tuesday I was one of those who enquired, appropriately humbly, why the Bill does not identify the heart of the matter in the same language, when the expressed manifesto pledge of which I have already reminded the Committee—I say that for the benefit of the noble and learned Lord the Lord Chancellor—was to end the right of hereditary Peers to sit and vote in the House of Lords? I asked then and I ask now: would it not have been clearer, would it not have been safer, for the Bill to have done that?
The contributions from this side of the House made it clear that we are not considering the merits of the Government's policy. That is quite a different matter and we spent a long time on that at Second Reading. However, we are looking at the quality of the language and we are seeking reassurance that the language gets to the heart of the matter. Instead of focusing on the right to sit and vote in this House we now know that Clause I refers to the membership of the House of Lords by virtue of hereditary peerage. The clause says that that shall come to an end.
I diffidently enquired, and do so again: would it have been safer and clearer and would it have avoided the prospect of future litigation and considerable expense—to say nothing of trouble—had the Government said, "We shall think about it; we attach no magical meaning to the language of the Bill and we shall see whether, had we employed the language of the manifesto"—to which the Government refer endlessly—"that might have achieved the purpose more closely and more clearly"?
It is worth remembering that the new clause—Amendment No.10A—gets to the heart of the matter by operating upon the Writ of Summons. It says that no hereditary Peer shall receive a Writ of Summons to this House. That was only an idea. It seemed good at the time. After the reply from the noble and learned Lord the Lord Chancellor it seemed an even better idea to me. That idea was simulated by the protean mind of the Lord Chancellor in stating to my noble friend Lord Strathclyde that the language had to get to the heart of the matter and that accounted for it.
The idea in my mind burgeoned as I read, as the Lord Chancellor has read, the opinion of Mr. John Lofthouse, Treasury Counsel in peerage matters for the past 10 years and, therefore, no slouch. I now realise that I was a little ungenerous in saying, a moment or two before the Lord Chancellor joined us this evening, that I sadly suspected that he had not listened with much care to any of our arguments because he showed he was listening at that part of the argument when my noble 519 friend Lord Mackay of Ardbrecknish., understandably, asserted that Mr. Lofthouse was a Queen's Counsel. The Lord Chancellor started his reply with a correction of that understandable mistake.
That does not affect the issue one way or the other. I defer to Mr. Lofthouse's expertise in such matters, as I did when I was Attorney-General and had the benefit of his advice when seeking to call out of abeyance the Wharton peerage. I certainly defer to the expertise of Mr. Lofthouse now, even though—I regret to confess—I have been a Queen's Counsel myself for 27 years.
Unhappily, I am not aware that the Lord Chancellor addressed any other aspects of my noble friend Lord Mackay's reply with anything like the same acuity. I was heartened by the intervention, after I had spoken, of the noble and learned Lord. Lord Jauncey of Tullichettle, a distinguished former Lord of Appeal in Ordinary. He was kind enough to say that he agreed with me that, at the very least there is doubt as to whether Clause 4(2) is effective in as much as the Writ may or may not still be alive after it has been presented and the holder of it has sat in Parliament". —[Official Report, 27/4/99; col.160.] I was heartened by that and the more so because the noble and learned Lord cites the words of Lord Chancellor Cranworth in the Wensleydale peerage case. Lord Wensleydale was a Lord of Appeal and had been appointed by a Patent that stipulated that he should have a life peerage only. There was a very long case about it in the Committee of Privileges in this House. He cited the words of Lord Cranworth, a predecessor of the present Lord Chancellor: That which gives every noble Lord his right to sit here is not his Patent of Nobility. but the Writ of Summons which he is entitled to, in consequence of that Patent". That seemed to me to be significant and persuasive. I was heartened because the noble and learned Lord, Lord Jauncey of Tullichettle, is, as I feel sure the noble and learned Lord the Lord Chancellor knows, a distinguished expert on peerage matters, particularly in Scotland. Therefore, it was correspondingly disappointing for me that when taxed with the point put by my noble friend Lord Glenarthur—a point which the noble and learned Lord, out of mere inadvertence I am sure, had hitherto ignored—the noble and learned Lord the Lord Chancellor avoided it (I can find no other word) with the phrase: I have no intention of getting involved in arcane questions of peerage law". —[Official Report, 27/4/99; col.170.] When thinking about that afterwards, I found it very difficult to avoid the word "high-handed" in describing that reply. It is true that the noble and learned Lord the Lord Chancellor did not dismiss the noble and learned Lord, Lord Jauncey, as being merely a retired Lord of Appeal in Ordinary, but it seemed to me that it would have been appropriate to have dealt with the merits of the point that the noble and learned Law Lord had made.
In those circumstances, it would not have cost much to take a little time to consider the point afresh, rather than merely assert, as the noble and learned Lord the Lord Chancellor did, that: the ordinary man in the street and the judges will have no difficulty in construing", 520 the concept of membership of the House of Lords by virtue of a hereditary peerage. It would not have taken much time to have said, "Let us think about this a little further". Indeed, I am not surprised that the noble and learned Lord, Lord Jauncey of Tullichettle, is not in his place if that is how he is treated by the head of the judiciary.
The ground for the confidence of the noble and learned Lord the Lord Chancellor seems to he additionally in the fact that the Government have made their intention clear, even if the Government have not, for some unexplained reason, adopted the language of the holy manifesto. Perhaps they feel that because they have made clear their intention and their belief of what the language they have employed achieves that will be that if push comes to shove.
I concede that that may help. In winding up, the noble and learned Lord the Lord Chancellor once again took the opportunity to assert his and the Government's intention. But Pepper v.Hart does not provide any government with a wholly reliable "golden pass" conferring upon them immunity in having the language that they got Parliament to use from being construed according to the court's view of its natural and ordinary meaning. It is not a wholly reliable golden pass. The judges will be inclined to hold that the language and not the Lord Chancellor embodies the law.
In conclusion, I submit that to cleave through an unnecessarily unclear and uncertain formulation with the argument that, "In any event, we can work a Pepper v. Hart", is no way to invite this House to legislate. We on this side have argued for the avoidance of doubt, but I fear that the noble and learned Lord the Lord Chancellor has seemed more concerned with the avoidance of any revision of this Bill.

§ 8.45 p.m.

§ The Earl of Northesk
My Lords, it seems to me that with each passing hour in Committee this Bill becomes ever more extraordinary. It fascinates and confuses me. The Government stand on their conviction that it is a creature of exquisite simplicity. And yet I cannot help feeling that as we have scrutinised it, that simplicity has unravelled before our eyes, not least in the opinion of Mr. Lofthouse.
With all humility and deference—I am not a lawyer—I suggest that notwithstanding the Government's apparent obsession we should not be too concerned with how the courts may or may not construe the Bill as enacted. It should be a matter of what the Bill actually says. We are a Chamber of legislative scrutiny. Our first duty, irrespective of party—and it is especially so because of the operation of the Salisbury convention—is to ensure that legislation is drafted as accurately and clearly as possible.
In Committee in your Lordships' House we should not be overly concerned with the Government's overarching purpose; that is to say, what the Bill means. As the Government and their supporters delight in pointing out, "We all know that anyway"—aside from which that point is readily established by the grant of a Second Reading for the measure, albeit qualified by the acceptance by your Lordships of the amendment of the 521 noble Lord, Lord Cobbold. Although manifestly some of us do not like it, this House has embraced the underlying principle of the Bill.
What is therefore at issue in Clause 1 is whether the drafting achieves this underlying principle. I am bound to say that from my admittedly layman's perspective, not only the opinion of Mr. Lofthouse but also a number of concerns expressed by noble Lords, introduce an element of doubt which has yet to be adequately and convincing rebutted by the Government Front Bench. For example, I was intrigued by the response of the noble and learned Lord the Lord Chancellor to Amendment No.10A. To my mind, it included three distinct interpretations of Clause 4(2), one of which was an accurate reflection of one of the elements of Mr. Lofthouse's opinion. Breaking my own dictum, I wonder how the courts might construe that.
That leads me to another thought. As hereditary Peers, our duty to this Bill is to preside over our own execution at the same time as correcting the terms of our own death warrant. I concede that it is a theatrical metaphor, but that does not make it any less accurate. It is essential therefore that the Government accept their duty in turn to furnish the Committee with substantive and adequate responses to the queries that so many of your Lordships have raised. It saddens me that there are grounds for supposing that thus far that has not entirely been the case.
My exasperation with this has curdled to something more pungent. Like it or not, today we, this whole House, are still a House of this Parliament. Where is our duty to be done if all we are greeted with by the Government Front Bench is the blithe repetition of the revolving prayer wheel mantras: "It is in the manifesto"; "The Bill is solely and exclusively about the hereditary peerage"; "It is a stand-alone measure"? Need I go on?
I accept that such points have a legitimate place in the scheme of things, but the reality is that we are now addressing the detail of the Bill, and that is our right. The Government, while they may disagree and while they may not like it, are being probed on specific points of substance. This autistic reflex does not win arguments. Bluntly, it is irritating. It is simply not good enough. It invites the conjecture that the Government, in their cabal of strategy or tactic meetings—I concede that I am never certain of the distinction between the two—have the perceived wisdom along the lines of, "You don't actually have to bother replying to anything. Just stonewall. Just put up the shutters. That will do the trick". I repeat that it really is not good enough.
The fact of the matter—an awful cliché, but it seems well-beloved of the Government Front Bench—is that bar one or two of the amendments of my noble friend Lord Trefgarne and myself, as revealed by the noble Baroness, the Lord Privy Seal, last week, the Clerks have advised all Members of the Committee that the amendments they have tabled are in order; they are germane to the Bill. Some may be of more substance than others, but they all merit proper scrutiny and, crucially, adequate replies from the Government Front Bench, replies that actually address their subject matter, replies that go at least some way towards answering the concerns that Members of the Committee are expressing. To do anything else is to demean the 522 Committee. This is a Bill that shouts out for intellectual rigour, and it gets the argumentative squalor of the nursery.
We on these Benches, like noble Lords opposite and elsewhere in the Committee, are moderately intelligent. We can grasp when we are being sold a pup. I invite noble Lords opposite to dwell on this. If Front Bench Members of these Benches had sought to adopt this sort of approach when we were in office—perhaps they did; I would not know—noble Lords opposite would have been, quite rightly apoplectic, incandescent with rage.
I am bound to say this. I have no intention of maligning noble Lords opposite, but there has been a sense during the passage of the Bill so far that some of the Government's Back-Benchers have derived some perverse satisfaction, some delight, in supposing that the hereditary peerage and these Benches generally may have given the impression of being little more than rabbits caught in the glare of headlights. It is precisely this symptom of reducing the legislative function of the House of Lords to a branch of the "yah-boo" politics of another place—after all, we are led to believe that this is antipathetic to the Prime Minister's "third way"—that causes so many of us such concern. It is a vision of the rubble to which the centuries of history of the House of Lords will be reduced.
The House is nothing if it cannot maintain its traditions of courtesy and its duty of legislative scrutiny. Inevitably, these rely on trust. It is this trust that enables us to be a self-regulating House. But trust is a two-edged sword. It is worthless unless all sides subscribe to it. If all that is to happen when amendments are moved in all seriousness, in all honesty and in a spirit of inquiry and an intention to be helpful—I repeat that the Clerks have accepted the great bulk of those amendments so far tabled—is that the Government will dismiss them with the ritual recital of their rehearsed mantras, that trust is, in effect, withdrawn. We are all—I include noble Lords opposite, because what is certain is that we always reap what we sow—the poorer for that. We are all wasting our time.
I am a mild-mannered individual. I comment thus not in anger but in pained weariness. But the provocation on this issue, and not only in the Bill, has become too great to ignore. At the very least the Government should come clean, and if they cannot address the points raised they should say so. At best—and I acknowledge that in the current climate this may well be wishful thinking—the Government should be prepared to recognise that, in this of all issues, they are servants of the House of Lords.
It may be that we who are hereditary Peers are about to be the road kill which the Government want. But until such time as the Bill is enacted we continue to be Lords of Parliament, with all the rights that that status accords us. We continue to be wholly legitimate Members of the House of Lords.
In my relatively short time here I have come to recognise, in a way that I never could from an outside perspective, that Parliament belongs to its membership. That is especially the case with respect to the House of Lords. After all, advanced as the virtue of 523 "independence", it is something that has permeated so much of our discussions about reform. And, insofar as it remains the case, it means that we deserve substantive replies to the issues we raise, not this whining clockwork from the spin doctor's work-bench. It really is not good enough.
In conclusion, I simply wish to say that it may or may not be that the Lofthouse opinion has substance. The Government have not established the case one way or the other. Rather, our Committee proceedings so far have revealed that the elements of doubt introduced by them, and other matters of substance raised by other noble Lords, some of them very considerable, call into question the construction and formulation of Clause 1.
I do not for a moment say that we should strike Clause 1 from the face of the Bill. The Government still have time and the opportunity to address the concerns that have been expressed in order to deliver their nirvana of legislative clarity. But without that I could be tempted to a view that it would be both irresponsible and beyond the Committee's competence to accept the Bill as drafted. It would be a dereliction of duty to enact a measure where so much doubt exists as to whether or not it is capable of delivering its stated purpose.

§ Lord Northfield
I hesitate to intervene, because I am not a lawyer, but I am surprised at the noble and learned Lord, Lord Mayhew. He said first that the Government Front Bench did not listen. Those of us who have sat through the Committee stage so far must give full marks to our Front Bench for listening carefully and replying to a whole lot of amendments which are way outside the Long Title of the Bill and only just squeeze in within the general intention of the Bill. The noble and learned Lord knows from his experience in the other place that in the House of Commons nearly all those amendments would have been ruled out of order, as being way outside the Long Title.
Therefore, all that we have really been having is continuous Second Reading speeches and amendments which do not touch on the real heart of the Bill. To every one of them, to my knowledge as I have sat here this week, our Front Bench has given a very careful, courteous, considered and lengthy reply. The noble and learned Lord has no right to say that the Front Bench has not been listening and has not been replying.
Secondly, the noble and learned Lord said that it was extraordinary that the Government had not considered alternatives. He cannot have listened to my noble and learned friend the Lord Chancellor, who said quite clearly in my hearing, "We considered all the alternatives. The parliamentary draftsmen considered all the alternatives and came to the conclusion that the way we have taken in Clause 1 is the correct and sensible way. We have considered them all, but we came back to this as the most appropriate. " It is not right for the noble and learned Lord, Lord Mayhew, to say that they were not considered. That was directly contrary to what my noble and learned friend the Lord Chancellor had carefully told him about what had actually been done.
524 I now come back to the basic statement of the noble and learned Lord and others who say that the most important thing in this matter is the Writ of Summons, and the statement by the noble and learned Lord, Lord Jauncey, that the right to sit here depends on receipt of the Writ. The condition antecedent to receiving a Writ is to be a Peer. A Writ cannot be issued to somebody who is not a Peer, either a life Peer or a hereditary Peer. That is the present case; a Writ can be issued only to someone who is a Peer of one kind or another. Receiving a Writ is something that happens by virtue of being a hereditary Peer. As Clause 1 says, we take away that condition antecedent, and the hereditary Peer no longer has the right to receive the Writ and be a Member of the House of Lords.
I cannot understand why a lawyer of the eminence of the noble and learned Lord, Lord Mayhew, could not understand that the procedure starts by being a Peer and not by simply receiving a Writ. My noble and learned friend the Lord Chancellor is quite right to say that the simple way is to legislate, in the words of Clause 1 which states,
No-one shall be a member of the House of Lords by virtue of a hereditary peerage", by what flows from being a hereditary Peer. That is simple, direct and quite clear. I hope that the Committee will realise that the situation is merely being dragged out, yet again, by Members of the Committee opposite in order to make more Second Reading speeches. With very great respect, we have really had enough of them.

§ 9 p.m.

Earl Ferrers
With the greatest humility, perhaps I may add to the Second Reading speeches. if that is what the noble Lord likes to call them. We are dealing with a highly controversial Bill; of course we are. It is a Bill which affects the constitution. It is quite right for your Lordships' House, as it is for any chamber, to scrutinise it. But whenever we scrutinise it, Members of the Committee opposite say that we are making Second Reading speeches. With respect, that is not so.
Perhaps I may add that if there is a controversial Bill going through your Lordships' House, it would be a great help if there were some happiness, pleasure and smiles on the faces of the Members on the Government Front Bench. On the whole, they have been glum. That does not help the case. They should at least show that they are in favour of the Bill being discussed.
I suggested earlier—and I hesitate to suggest again—that if the Government are altering the constitution, and they are, then it is quite right for the Chamber to consider that and to consider the effects. Earlier, the noble Lord, Lord Richard, said it is quite clear that the object of the Bill is just to get rid of hereditary Peers and that is that. Actually, that is not that because one must look at what is the effect. The effect is sometimes very different from what is expected. It is quite right for the Opposition to say, "Look, this is what we think. What do you, oh Government, think?" I say with great respect that the sad thing about Clause 1 and all that we have discussed so far is that we have not had answers to the questions.
525 The noble Lord, Lord Northfield, tried to give an answer. He said that you can receive a Writ only if you are a Peer and therefore, if you get rid of the Peers, there will be no Writ. That may well be the answer, but the noble and learned Lord the Lord Chancellor did not say that. I should be grateful if he would address his mind to the point that, as I understand it, we are all here by a Writ of Summons. Whether one is a life Peer or a hereditary Peer, it is the Writ of Summons which brings us here. Once here, the Writ has fulfilled its duty. It summons the person to Parliament and is put on one side. I would like the noble and learned Lord the Lord Chancellor to say how it is that the Government can say to some Peers, "The Writ which brought you here at the beginning of this Parliament can last for the whole length of the Parliament for some Peers but only last for part of the Parliament for other Peers". Perhaps the noble and learned Lord the Lord Chancellor will answer that question.
It seems to me—and I say this with the greatest humility—that it verges on being hybrid if a right is taken from some people but the same right is not taken from all people.
I fear that the diktat which the Government have given to the Government Front Bench is that they must concede no amendments. I can understand that. The noble Baroness seems to be querying that. I am delighted. That is how it looks at the moment. They are told to concede no amendments and to concede no arguments either. If the noble Baroness and her colleagues would say, "Noble Lords opposite have got a point here which we have considered but we think that for this, that and the other reason noble Lords are wrong", we would understand that. But we are merely told, "That is in the manifesto and that is what we are going to do".

§ Baroness Jay of Paddington
I hesitate to interrupt the noble Earl but I have heard this argument several times on the amendments which have debated this afternoon; namely, that the Government are not prepared to accept any amendments. I ask the noble Earl and other Members of the Committee to consider what the position has been for some months, has been during the course of discussion of this Bill on Second Reading and will be when we consider the amendment in the name of the noble Lord, Lord Weatherill, with all its implications, and whether or not that does not suggest that the Government are prepared to accept substantive amendments.

Earl Ferrers
That is one step forward. I wonder why the Government did not accept the amendment in the House of Commons. It was tabled in another place and they did not accept it. Therefore, is the noble Baroness saying that this is not a Bill, as the manifesto says, to get rid of all hereditary Peers but is a Bill to retain 100 hereditary Peers? That is different. At present, the Bill before us seeks to get rid of all hereditary Peers.

§ Baroness Jay of Paddington
I hesitate to intervene again. The noble Earl may not be aware, and I should say for other Members of the Committee who are not aware, that it was the Government's proposal that the amendment in the name of the noble Lord, Lord Weatherill, should be 526 taken on the first day of Committee so that those matters could be addressed in precisely the way in which the noble Earl expresses them. Unfortunately, that was not agreed between the usual channels and, therefore, I agree that we are not discussing the amendment which could be central to the Bill.

Earl Ferrers
That is a very interesting point of view. But why did the Government not accept that amendment in another place? The fact is that the Bill before us seeks to remove all hereditary Peers. Now the noble Baroness says, "Actually, we made a mistake. We do not want to remove all hereditary Peers. We want to keep 100 of them". It is all very well for Members of the Committee opposite to wag their heads, but that is a very different state of affairs. Either the Government want to get rid of all hereditary Peers, which is what the Bill says and which is what the House of Commons passed, or they retain 100.

§ The Lord Chancellor
The noble Earl is getting us going! He is doing it very well. I know that he will acquit me of any discourtesy if I say that I rise to my feet because I feel that I am about to get going, and I am going to get going.
But he expressed a certain amount of puzzlement about the Bill. I certainly recognise a strong duty to relieve him of any sense of puzzlement that he has. Perhaps I may explain to him, with very great respect—as we lawyers say—simply this. Of course, a Writ of Summons has a certain consequence in law apart from the effect of legislation. I really do invite him to accept, because I am sure that he is as great a respecter of the sovereignty of Parliament as I am, that Parliament can legislate as it chooses in relation to a Writ of Summons which has been issued for this Parliament. It can provide that those who are here by virtue of a Writ of Summons may be excluded pursuant to Clause 1. That is the prerogative of a sovereign parliament.
Under Clause 4(2) a sovereign parliament is entitled to provide that a Writ of Summons which has not been responded to in this Parliament shall be null and void. I suggest to the noble Lord that inadvertently his argument questions the sovereignty of Parliament.

§ Lord Kingsland
Before my noble friend responds, has the noble and learned Lord not considered the retrospective effect of Clause 4(2) on those who have received a Writ of Summons? They did not have a vote when they received this Writ of Summons, in return for which they sit here. If Clause 4(2) is passed, in my submission, and with the very greatest respect to the noble and learned Lord, its passage will not only contravene the European Convention on Human Rights as retrospective legislation; but it will also, in the great traditions of our own constitution, be unconstitutional.

§ Lord Glenarthur
Before the noble and learned Lord responds once more, I am delighted that he said he is getting going. On Tuesday, in answer to my question he said: I have no intention of getting involved in arcane questions of peerage law". —[Official Report, 27/4/99; col.170.] 527 It seems to me that this is very much the subject of the Bill, arcane and difficult as it may be. It may be something with which the noble and learned Lord does not want to tangle. However, if he is saying that, is he also saying that peerage law is somehow outside the overall ambit of the Bill? Is it not subject in any case to consideration by the courts and interpretation of its wording, if that is what the noble and learned Lord wants it to be? He cannot really have it both ways. He either wants to get going or he does not want anything to do with it. Which is it to be?

§ The Lord Chancellor
The short answer to both interventions is that Parliament is sovereign and in this case the Government are carrying into effect the manifest will of the people.

Earl Ferrers
Perhaps I may be allowed to continue my speech!

A noble Lord
Start again!

Earl Ferrers
I am grateful to the noble Lord, but I would not filibuster, not even at the invitation of noble Lords opposite.
The noble and learned Lord very kindly said that I got him going. If I achieve nothing else. that is a great achievement. To see the smiles on the faces of noble Lords opposite, and even on the face of the noble Baroness—which must be the first time since the Committee stage commenced—is a great achievement.
These are serious points and the Opposition have a right to put them forward. This is an alteration to the constitution. We may not agree with what is being done. There are plenty of people outside who say hereditary Peers should stay and that we should get rid of the life Peers. That is not a view that I necessarily hold. Certainly I would not subscribe to it in this House. However, such view s are held and people are concerned..
Perhaps I may try to persuade the noble and learned Lord that despite all the fuss and brouhaha about life Peers versus hereditary Peers, which is a pretty disagreeable battle, we do want to try to help the Government in so far as ensuring that what gets on to the statute book is right.
I am glad the noble and learned Lord addressed the point regarding the Writ of Summons. He may well be right. We may think he is wrong. It is quite right for us to point it out to him and say, "Look, we actually think you're making a mistake. What a pity it would be if the Government were taken to court and were found to lose. "
The fact is that many people have said, and the noble and learned Lord said this earlier, that everyone knows what the Government intend. I hesitate to say this to such an eminent lawyer when I have never even entered the portals of that profession—much to my regret—but when matters come to court, they are not decided on the big issues: they are decided on the minutiae and the detail. That is why it is right to get the details correct.
The manifesto, as we have heard so often—it has almost become a Holy Grail—spoke of the right to sit and vote in the House of Lords. But I pointed out that one of the effects of the Bill is that people of the eminence of, 528 for instance, my noble friend Lord Carrington, who has achieved a great deal for this country, will not be allowed inside these premises. Why? Because he happens to be a Peer. It is an offence to discriminate against sex, against gender and against colour, but apparently it is perfectly all right to discriminate against birth. My noble friend has given a great deal to this country and yet when this Bill is passed he will not only not be allowed inside the Chamber, but inside the House. That is a great pity.
For all those reasons Clause I needs looking at again. For the first time the noble and learned Lord shakes his head in assent, and I assume by that he means he will look at it again and for that I shall be grateful.

§ Lord Goodhart
My recollection is becoming a little hazy by now, but I feel that we had exactly the same debate the day before yesterday. I made a speech expressing my views on that occasion; I have no intention of pressing the replay button and delivering it again. And I express the hope that other Members of the Committee will follow my example.

§ 9.15 p.m.

§ Lord Henley
Perhaps I can intervene at this stage and other Members of the Committee can intervene after me in due course. I will try to follow the strictures of the noble Lord, Lord Northfield, and not make a Second Reading speech. In fact I intend to be very brief.
I greatly welcome the fact that the noble Baroness the Leader of the House will be responding to this discussion. I am sure that in the course of this debate she started off on her own without any advice from either the noble and learned Lord the Lord Chancellor or her noble and learned friend Lord Falconer, or even the noble Lord, Lord Williams—not that he is learned in the terms of this House—who seems to have been spirited out of the country. I dare say we will see him back in due course.
No doubt the Leader of the House has had some expert legal advice from her noble and learned friends and will be able to respond in due course. From my point of view I cannot respond as my noble friend the Leader of these Benches did the other day, starting off by saying, "Dealing with these arcane points of law". That was how he put it. He was not a lawyer. I am a lawyer, albeit not one of any eminence. I was called to the Bar, but sadly never proceeded any further. In the absence of the noble and learned Lord the Lord Chancellor, I am tempted to say that I would like to go further. I might even put in my application to take Silk at some stage and perhaps the noble Baroness will convey that to her noble and learned friend in due course.
A number of points have been put by those on these Benches who are much more learned in the law than myself.

§ Lord Peston
Hear, hear!

§ Lord Henley
Those are points that need answering by the Government and we hope that the Government will answer them in due course, in particular those raised by my noble friend Lord Kingsland and my noble and learned friend Lord Mayhew dealing with retrospection. It is important that that specific question is dealt with.
529 I said—and got a degree of "Hear, hear!" from the noble Lord, Lord Peston—that I did not know much about the law. The noble Lord can now say "Hear, hear!" again if he so wishes.

§ Lord Peston
My remarks were intended to doubt that the noble Lord, Lord Henley, did not know much about the law. I assume when I make a similar remark that he really knows a great deal about what he is saying.

§ Lord Henley
I hope that the noble Lord will pass that back to his noble and learned friends and perhaps they will view my application for Silk in due course with some consideration. The fact that I do not practice will probably count against me but, similarly, I make no criticism. In fact, I have never made criticisms about the noble Lord as an economist, but we can discuss that in other debates.
What little law I do know suggests that a certain number of questions have been raised and we must consider whether it is enough that the noble and learned Lord the Lord Chancellor simply declares that what he says is what the Bill means. However loud and however often he says that, it does not take the doubt away from many on this side and from those who have written learned opinion on the subject. We have heard, both inside and outside this Chamber, that expert opinion exists. We heard from the noble and learned Lord the Lord Chancellor that he has a lack of readiness to look at arcane questions of peerage law. However eminent the Lord Chancellor is, how can he be so sure that he is right and others, even if they are not Queen's Counsel, such as myself, or the drafter of this opinion, are wrong?
I hope for his sake that the noble and learned Lord is right. If not, when the law is challenged and found wanting, I suspect he will be like that unfortunate young man in the Edward Lear limerick, which I am sure many noble Lords will remember:

"There was a young man in a boat

Who cried, 'I'm afloat, I'm afloat'.

When they said, 'No, you ain't',

He fell down in a faint,

That unhappy young man in a boat".

As I said, a number of questions have been raised. I hope that the noble Baroness the Leader of the House will be able to respond to those questions—questions put by lawyers much more eminent than myself.

§ Lord Grantley
I wish to support the plea made by the noble and learned Lord, Lord Mayhew, that this legislation should be correctly drafted. Many people have had the advantage of reading the opinion given by Mr. John Lofthouse, which was much referred to on previous occasions. The noble and learned Lord said that he had had the advantage of having known Mr. Lofthouse for 10 years in his capacity as standing counsel for the Treasury on peerage law. I have the advantage of having known him for 25 years since we were at Oxford together. He was a great authority on peerage law then and undoubtedly is a great authority, perhaps the greatest authority in the land today, in that respect. Therefore, 530 I think that the opinion he has given should be considered extremely seriously so that the legislation can be correctly and accurately drafted.
I am not a lawyer myself but I have had some regrettable experience of the law courts as a litigant. I can give Members of the Committee one example which I believe to be germane to the question of construction; indeed, I shall be extremely interested to hear the answer. Some years ago, in my capacity as a landlord of a house, I sought to terminate the tenancy of a tenant whose tenancy had come to the end of its contractual term. The tenancy had been granted when I was not the landlord but the resident beneficiary of a trust which was the landlord. The relevant Housing Act clearly intended that the resident beneficiary of a trust which was the landlord should have the same rights as a resident landlord. However, when the case came to court, I lost it because the legislation did not absolutely express that situation. In other words, what the court said was, "We know very well what the intention was, but that is not what the law says".
As I understand it, the response which the noble and learned Lord the Lord Chancellor has given to the questions very rightly raised by the noble Lord. Lord Trefgarne, and the noble and learned Lord. Lord Mayhew, is that it does not ultimately matter exactly how we have drafted it because everyone knows what the intention is. We do indeed know what the intention is but, for goodness sake, let us have it correctly drafted. I urge and beg the Government to consider very seriously the points that have been made in relation to the defective drafting of the Bill and to come back with a considered redraft, which at least gives proper effect to their clear intentions.

§ Baroness Jay of Paddington
I can agree with two comments that were made by those who have opposed the question that Clause 1 should stand part of the Bill. I can agree with the noble Lord, Lord Trefgarne, that this clause goes to the heart of the Bill; indeed, that is the case. I can also agree with the noble Earl, who seems no longer to be in his place—although I thought he was opposed to the inclusion of the clause—that the passage of the Bill becomes ever more extraordinary.
As the noble Lord, Lord Trefgarne, said, this clause goes to the heart of the Bill. Therefore, as the noble Lord the Opposition Chief Whip seems to find it somewhat peculiar that I should be sitting on these Benches without support, perhaps I should respond to him in the most friendly fashion and say that, if it is the heart or the centre of the Bill, it is surprising that neither his noble friend the Leader of the Opposition nor the Deputy Leader, the noble Lord, Lord Mackay of Ardbrecknish, are here to take part in the debate.

§ Lord Henley
I appreciate that the noble Baroness was supported soon after the debate began, but I was merely expressing doubt because she seemed to lack legal support at the beginning. I have my noble friend Lord Kingsland with me. He is not learned in terms of this House but is, nonetheless, very learned in the law; and I need him.

§ Baroness Jay of Paddington
Frankly, I do not take that point because I am sure the noble Lord does not 531 expect me to come to this debate or indeed to any other proceedings on the Bill without obtaining previous legal advice. I am making the political point that if, as noble Lords have suggested—and as I would agree—this clause is the heart of the Bill, I would have expected noble Lords on the Opposition Front Bench to be better represented.
I should just respond to those noble Lords who have complained, if I can use that rather strong word, about the attitude of the Government Front Bench to the amendments which have been tabled; and, indeed, about our facial expressions, as was the case with the suggestions made by the noble Earl, Lord Ferrers. We are now on the 24th group of amendments on the Bill. We are at the end of the third day of the Committee stage. In practice, in the proceedings on most normal Bills—and I have taken the advice of my noble friend the Chief Whip on this—one would expect that to be an average day's business in this Chamber. As I say, we have reached the third day of the Committee stage of this Bill and we have considered 24 groups of amendments.

§ Lord Henley
I remind the noble Baroness that she is the Leader of the House, not the leader of her own group. I hope that she is not in any way accusing this side of the Committee of a filibuster. If she is, I remind her—there has been no filibuster—of the activities of her party back in 1971 on the Industrial Relations Bill that had a Committee stage which lasted for some 21 days.

§ Baroness Jay of Paddington
I had no wish to raise the heat of this discussion. I simply pointed out to those noble Lords who accuse the Government Front Bench of not taking the detailed consideration of this Bill seriously that we are indeed making progress. However, it has been slow progress because the Committee has properly considered the detail of this Bill. That is why the Government Front Bench feels it is an inaccurate observation to say that this Bill is not being taken seriously.
I return to the heart of this Bill, which is indeed Clause 1. Everything in this Bill flows from it and without this clause the Bill has no meaning. I gather from the comments of the noble Earl, Lord Northesk—who has now returned to the Chamber—that he does not intend to divide the Committee on this Clause. Were he to do so, that would be a complete breach of the conventions of this Chamber. It would indeed be the equivalent of a vote again st the Bill on Second Reading. The effect of this clause—

§ The Earl of Northesk
That is precisely why I made the point that I did.

§ Baroness Jay of Paddington
That is why we accept it. However, I shall reply in precisely the way that I hope the noble and learned Lord, Lord Mayhew, the noble Earl, Lord Ferrers, the noble Lord, Lord Trefgarne, and the noble Earl, Lord Northesk, will feel is an appropriate response to the detailed points that have been made on Clause 1. Perhaps it will be helpful if I first of all repeat what the intent of this clause is, as there appears to be some confusion here.
532 The effect of this clause is that no one in the future shall be a Member of your Lordships' House by virtue of a hereditary peerage. I shall return later to the question of the Writs and the points that were addressed by my noble and learned friend the Lord Chancellor. I emphasise to the Committee—I hope this meets the point made by the noble Earl, Lord Ferrers, who again mentioned the case of the noble Lord, Lord Carrington—that that is not necessarily the same as saying that no hereditary Peer shall be a Member of the House of Lords, as they, like everyone else, will become eligible to receive life peerages. I am happy to confirm that, as I did in the debate on Amendment No.6 of the noble Lord, Lord Trefgarne, and today in the debate on Amendment No.30 of the noble Lord, Lord Marlesford. The noble Lord, Lord Marlesford, is not present at the moment.
As is explained in the Explanatory Notes to the Bill, the effect of the clause is comprehensive. I appreciate that the Committee well understands that, given the terms of the amendments which we have discussed. However, for the purposes of clarity—and, I hope, finality on this point—I repeat that this clause applies to all hereditary Peers, whether in the peerage of England, Scotland, Ireland, Great Britain or the United Kingdom, and whether they are male or female, Royal or non-Royal, Peers by succession or Peers of first creation, holders of Baronies by Writ or in possession of a Patent of Creation, or sit by virtue of a Writ of Acceleration or by a peerage called out of abeyance. This clause marks once and for all the end of any automatic connection between a hereditary peerage and membership of the House of Lords.

Earl Ferrers
I ask a question for clarification. The noble Baroness was kind enough to say in response to my remark about people such as the noble Lord, Lord Carrington, not being able to come here that such people could be offered life peerages. Who is eligible for life peerages and who grants the life peerages?

§ Baroness Jay of Paddington
Noble Lords who at present sit by virtue of their hereditary peerages will, like every other citizen of this country, be eligible for life peerages. As I said in my response to the noble Lord, Lord Marlesford, who sought to include Privy Counsellors as hereditary Peers sitting in the reformed House, of course it would be entirely appropriate for any political leader who wished to recommend to the Prime Minister particularly distinguished Members of his Benches who sat previously as hereditary Peers—I am sure that the noble Lord, Lord Carrington, would fall into that category—as suitable candidates for life peerages. It is a fairly straightforward point. It means that no one is excluded from the possibility of becoming a life Peer.
Perhaps I may answer another of the points of the noble Earl, Lord Ferrers. If as a result of the deliberations on the amendments to be moved by the noble Lord, Lord Weatherill, some hereditary Peers temporarily retain their seats in your Lordships' House, their right will no longer flow from their peerage but from their peerage in combination with a vote by other Members of the House.
As the noble Earl, Lord Ferrers, and other noble Lords have mentioned, we have returned to matters which were addressed by my noble and learned friend on Amendment 533 No.10A. Some noble Lords have suggested that the clause does not achieve its effect because it does not operate directly on the Writ of Summons. I hope that noble Lords are now satisfied by the response of my noble and learned friend. We are confident that the clause is effective to achieve in law its simple objective, as, frankly, the overwhelming majority of those who appreciate it understand it, and those who have voted for the Government would agree. Of course the Government, too, have access to legal advice. That legal advice was taken when the Bill was drafted and has been taken during its passage. The Government's opinion of the effect of the Bill was extensively discussed on Tuesday and it has been presented to the Committee again today by my noble and learned friend the Lord Chancellor. I would refer noble Lords who still have difficulty with this to the simple constitutional issue of the sovereignty of Parliament.
There is a sense on these Benches—I hope that noble Lords will not feel that it is either discourteous or dismissive—that we see a certain degree of—can I use the word?—"humbug"in trying to improve the Bill as noble Lords have suggested. For noble Lords sitting on the Opposition Benches to argue that they are seeking to make the exclusion of hereditary Peers more effective would seem to go against some of the arguments they have made in other cases.

§ 9.30 p.m.

§ Lord Mayhew of Twysden
I am grateful to the noble Baroness for giving way. As she has effectively accused me and other noble Lords of humbug in putting forward our arguments, I wonder whether she would answer this question: what would be wrong, what would be inexpedient, in expressing the purpose of the Bill in terms stating that no one shall be entitled to sit and vote in the House of Lords unless he or she has received a Writ of Summons? What would be wrong or difficult in adjusting Clause 4 to make it work—if that be the will of the Government, there is no question of parliamentary sovereignty—and making it retrospective? What would be difficult about that? That would meet the difficulties that we have seen, the difficulties that Mr. Lofthouse has seen and the difficulties that the noble and learned Lord, Lord Jauncey, has seen. We have never had an explanation as to why that would be difficult, except that it would mean a change to the Bill.

§ Baroness Jay of Paddington
It would not be a simple semantic matter of changing the wording of the Bill. As my noble and learned friend took some trouble to explain—although noble Lords have suggested that he did not—the terminology of the Bill was crafted in the way that it was and written in the way that it is in order to embrace the widest possible concept of the membership of your Lordships' House. I cannot recall whether the noble and learned Lord, Lord Mayhew, was present at the time when this matter was discussed on Tuesday—

§ Lord Mayhew of Twysden
I was present.

§ Baroness Jay of Paddington
I apologise to the noble and learned Lord. I said that I could not remember. I am 534 sure that noble Lords will remember that we then discussed at some length whether it was possible to define the membership of the House of Lords, the membership of the House of Commons or the membership of the Welsh Assembly. My noble friend Lord Williams of Mostyn, who was replying to those points on another amendment, said that he was quite sure that it would be impossible to find judicial agreement on how that membership should be understood; nevertheless, it was perfectly legitimate to describe. It could, as we have discussed several times, be understood by anybody with common sense and even, as he said, by the judges. So I think we really must accept that the Government have taken appropriate legal advice on this matter and this is how it has been decided to formulate the Bill.
Perhaps I may move on and try to be a little more precise about exactly what Clause 1 does. It removes the totality of the rights and duties which members of the hereditary peerage have in their capacity as Members of your Lordships' House. It removes the right to sit and vote in the House of Lords and in any of its committees, to speak in the House or to receive a Writ of Summons. It removes ancillary rights and any other rights which are connected with membership of the House. The clause will also deprive hereditary Peers of those privileges of membership of the House which we call "club rights".
Now I must emphasise—I hope it does not sound too bald: it is certainly said only to achieve clarity and not in any way to be aggressive—that the privileges that are allowed to Members by virtue of their membership of the House of Lords, as far as concerns club rights, will be removed. Sadly, the noble Viscount, Lord Cranborne, is not in his place. Perhaps I may quote the words of his grandfather, the then Marquess of Salisbury, who said in your Lordships' debates on the Life Peerages Bill: This House is not a club; it is a place of legislation-. —[0flicial Report, 17/12/57; col.1231.] I think we all agree on that; at least I hope we do.
Your Lordships are here to do a job of work. The facilities are provided to assist Members in fulfilling their functions. It would not be right to insist that hereditary Peers who no longer have any function in the House should still have the right to use those facilities provided by the taxpayer to support the work of Parliament.

§ Lord Trefgarne
Perhaps I may ask the noble Baroness a question which arises out of that. Earlier today we debated the amendment of my noble friend Lord Marlesford about the position of Privy Counsellors. At present Privy Counsellors who are Members of the other place may sit on the steps of the Throne. What will be the position of the Privy Counsellors in this House who are hereditary Peers and are to leave?

§ Baroness Jay of Paddington
In responding to the noble Lord, Lord Marlesford, I said that in our view it was not appropriate that Privy Counsellors should remain as 535 hereditary Peers but that they are, as I said earlier in response to the noble Earl, Lord Ferrers, eligible for life peerages.

§ Lord Trefgarne
Will those without life peerages be allowed to sit on the steps of the Throne?

§ Baroness Jay of Paddington
I was going on to say—unfortunately, the noble Lord intervened once again—that this statute is not the appropriate place in which to discuss matters of that kind. Just as with the question of former Members of the other place visiting the House of Commons, that would be a matter for the administration of the House. If, once the Bill goes through, the House of Lords decided that as a concession it would extend the use of its facilities to non-Members or former Members, that would he a matter for the House. But it is not a matter for this statute.

Earl Ferrers
This is an important point. The noble Baroness said that hereditary Peers will not be allowed access to the House as a result of the Bill, yet the question of whether Privy Counsellors are permitted to sit on the steps of the Throne will be a matter for the administration of the House. If the Bill removes hereditary Peers who are Privy Counsellors, why is it that the administration of the House is required to decide whether they should be allowed back in again?

§ Baroness Jay of Paddington
I am obviously not being sufficiently clear. Perhaps it is because I am becoming confused by the different points which are being made to me. I shall try to explain. I was asked about arrangements for former Members of the House, whether they be Privy Counsellors or hereditary Peers who are not Privy Counsellors, to have access to the facilities of the House or to sit on the steps of the Throne, or indeed to have a cup of tea or go into the Library. That access will of course he removed directly by virtue of the removal of their membership through this statute. But the arrangements for former Members might indeed become a matter on which concessions were granted, by, for example, the Committee for Privileges or the Procedure Committee, in the same way that they have been in another place where, if I may explain what I understand the position to be, former Members of the other place who have served for more than 15 years receive a particular type of pass to the Palace of Westminster which lets them have access to some of the refreshment and other facilities but not necessarily to all of them. Those facilities are determined administratively by the authorities of that House. That is the consistent pattern that your Lordships could adopt in circumstances where hereditary Peers as a group were excluded from membership of this House. I hope that is clear. If it is not, I am happy to respond to further questions.

Earl Ferrers
I think it is clear; but it is not equitable. The noble Baroness is saying that, by statute, hereditary Peers should not enter the House, and hereditary Peers who are Privy Counsellors should not enter the House; but 536 it then remains up to the administration of the House as to whether the statute should be overridden and they can be brought back in. Is that correct?

§ Baroness Jay of Paddington
It is perhaps most simply expressed by saying that they will not have the right but it could be accepted by the administration of the House—the Privileges Committee or the Procedure Committee, whichever is appropriate—that a concession might be made if that were the will of the House. But that is not to say that their rights to membership of this House will not have been removed by this Bill. Perhaps I may—

§ The Earl of Northesk
On a related point, will the noble Baroness the Lord Privy Seal concede that the Bill does nothing in regard to what she has termed the ancillary rights of the Irish peerage?

§ Baroness Jay of Paddington
My Lords, I thought I had made the matter clear earlier in my remarks. Perhaps the noble Earl was not present at that time. I listed the numbers of all hereditary Peers who were excluded for the benefit of those Members of the Committee who, by virtue of the amendments they have produced, seem to think that various types of exclusion are possible. Perhaps the noble Earl will read the official record tomorrow. If he has a further query, perhaps he will write to me.

§ The Earl of Northesk
I simply niake the point because the rights of the Irish peerage do not arise out of membership of this House in the terms in which the Government have presented it.

§ Baroness Jay of Paddington
I invite the noble Earl to read the official record.

§ Lord Strabolgi
Perhaps I may intervene. As a member of the Privileges Committee, I sat on the Farnham case when it came before the committee. The Irish peerage had the right, before 1920, to elect a certain number to attend the House. After 1920, those who had been elected were allowed to remain for the rest of their lives. They had all died by a certain date, after which no Irish Peer had any rights here at all.

§ Lord Henley
As an Irish Peer, perhaps I may intervene to make just one point. One right of Irish Peers survived; namely, the right, as with Privy Counsellors, to sit on the steps of the Throne, and to do no more than that. I point out to the noble Baroness the Leader of the House that, when our rights are abolished and we all go, it seems that my noble friend Lord Northesk and myself, as Irish Peers, will continue to be allowed to sit on the steps of the Throne, but my other noble friends will be out completely. I offer that as an explanation to assist the noble Baroness and the noble Lord, Lord Strabolgi.

§ Lord Strabolgi
The noble Lord, Lord Henley, does not sit in this House as an Irish Peer. He sits here under an English title.

§ Lord Henley
I am afraid the noble Lord is wrong. I sit here as a United Kingdom Peer. I also happen to have, 537 in the name Henley, an Irish peerage. I sit in this House under my other peerage, as Lord Northington. But if I am no longer entitled to do so, then, as Lord Henley, I shall be entitled to sit on the steps of the Throne, as will other Irish Peers. But time is moving on. To assist the noble Baroness the Leader of the House, I make a plea that, having referred to the most obscure and arcane points of peerage law, most noble Lords, myself included, would probably like to move on.

§ Baroness Jay of Paddington
I am grateful to the noble Lord the Opposition Chief Whip for his help. Perhaps I may continue. I am not sure whether noble Lords sitting on the Benches behind me will be entirely happy with what I am about to say. However, I say it sincerely and with seriousness. The Government accept that for some Members of the House who will lose the role to which they are accustomed and access to the facilities of this House, it will be a serious disruption to their lives. I hope the Committee will accept that we have sincerely and genuinely expressed, on several occasions—I have done so at every relevant opportunity—our gratitude for the work that they have done and the sympathy that we feel at a personal level for those who are facing change. But it is a sympathy that one would feel for all those who were facing an enforced change of occupation or a lifestyle taken away that was of their choosing. But those are not reasons for compromising on the basic proposal that all automatic connection between the hereditary peerage and this House should be severed.
Although we may have sympathy for them, I say to the noble Lord, Lord Trefgarne, that we are not concerned that their human rights are being affected. The noble Lord asked me whether the Bill was incompatible with the European Convention on Human Rights and the Act of this Parliament which brings that convention into force because hereditary Peers did not vote in the last general election and yet they are to lose membership of this House before the end of this Parliament.
This point has been considered by the Government. The matter was raised in the other place by the Opposition. The Government believe that the Bill is compatible with Article 3 of Protocol 1 to the convention concerning free elections. Although hereditary Peers lose their seats in the House of Lords under Clause 1, under Clause 2 their disqualification from voting in the House of Commons is removed. Clause 4(3) makes transitional provisions to enable hereditary Peers to vote from an early date. I believe that hereditary Peers will be in the same position as others who were not entitled to vote at the last general election, for example those under 18. We believe that this meets the obligations under the Act.

Earl Ferrers
Can the noble Baroness say why, in view of her very generous and fulsome remarks about hereditary Peers, she doubts whether she will carry her Back-Benchers with her?

§ Baroness Jay of Paddington
I was, perhaps regrettably, being somewhat frivolous. I simply suggested that the interventions that had occurred in the past few minutes appeared to demonstrate that the concerns of a 538 number of my noble friends about the relevance and worth of a great many hereditary Peers, and their natural sympathy and human concern for them, were perhaps being slightly undermined.
Perhaps I may seek to reassure the noble Earl. My noble friend Lord Williams of Mostyn emphasised in response to an earlier debate on Tuesday—I repeat it for the sake of clarity—that this Bill does not abolish the hereditary peerage as such, although that shorthand has been much used by noble Lords in speaking to amendments. All the titles, precedence and other privileges not connected with membership of this House will remain. All that we are concerned with now is the right to sit in a legislature in a House of Parliament. Hereditary Peers can continue to be known by whichever title they choose, Irish or otherwise, as is already the case with Peers who are Members of this House. We had that debate in relation to my noble friend Lord Longford, who is not in his place, and other noble Lords who raised this matter, one of whom was the noble Lord, Lord Aldington.
Another matter of genuine concern is the sovereign's right to create hereditary Peers. That remains precisely the same. However, for the sake of clarity, no future right to membership of this House is conferred by the adoption of an hereditary peerage.
Perhaps noble Lords opposite will find my next point uncomfortable, in the same way that I suggested that some of my noble friends might have found my remarks uncomfortable. I believe that the majority of Members of this House accept that the day of hereditary membership of Parliament is over. I am grateful to the noble Viscount, Lord Cranborne, for putting it very clearly and directly in one sentence this afternoon in speaking to Amendment No.25 when he simply said that the day of the hereditary Peer was over.
I refer to my contribution to the original debate on this subject in October. In opening the debate I referred to the conversations that I had had with the hereditary Peers who sat on the Benches on this side of the House. I acknowledged their grace in accepting that their present role was over and that accident of birth gave them no claim to be Members of Parliament at the end of the 20th century. On this occasion I record my gratitude for their continuing support for this Bill and their very important contributions to these debates.
The other objection which has been raised consistently throughout the debate on the clause is that although people may say they accept the principle they continue to insist that our approach is wrong. One variant which has been spoken of a great deal, and moved most eloquently by the noble Earl, Lord Ferrers, on Tuesday, is that hereditary Peers should be allowed to sit and speak but not to vote. That, it was suggested, would remove one of the Government's most legitimate grievances. It would indeed remove one of the more unacceptable political consequences of the present situation in which the noble Earl's party finds itself in such a majority, but it would not tackle the root of our objection to it. As my noble friend Lord Williams of Mostyn said in replying to the noble Earl, our policy is that it is really a good idea to treat everybody in the country equally.
539 That is why the manifesto—and I do not hesitate to refer to it—committed us to remove the right of hereditary Peers to sit as well as to vote.
The other line of dispute has been that the two stage approach is wrong: that the Government either have no intention of proceeding to or will not be able to deliver on the second stage; that until the second stage is before us we should not make any reform. We have heard that argument in many forms during the course of the debates on Clause 1. I should emphasise for clarity and simplicity and, I hope, to conclude this part of the argument, that we take the view that this first stage change is an absolutely essential preliminary to making any progress. We tried it the other way round in 1968. We discussed comprehensive reform in 1948. There was an inter-party conference in 1918. All agreed that the hereditary principle as a basis for membership of Parliament was indefensible. Yet we find ourselves in the middle months of 1999 still having the same debate.
I reaffirm that although we understand the emotional attachment that people have to the hereditary peerage as Members of your Lordships' House it is more than an emotional attachment because it has constituted, and does constitute, an enormous barrier to rational and focused discussion. That is why we have persisted with the intent and the purpose that we shall move through stage one. We shall clear that out of the way. As I said in response to an earlier amendment, there is one simple question: Do you think that hereditary Peers should continue to be members of the legislature in 1999, or do you not? Clause 1 removes the option of having any further debate on anything more complicated.
After that, the choice between the options for the future will have to be made on the basis of the merits of the alternatives that are then available. We genuinely believe—I know that some of the sincerity of the Government has been challenged today—that the chances of getting agreement to long term reform are considerably enhanced by achieving that first purpose; and then, we hope, agreeing a consensus on the way forward.
The Government believe, in the phrase that I used in an earlier debate to which the noble Earl, Lord Ferrers, referred recently (and I hope that it does not irritate him if I repeat it) that it is time to say to the hereditary Peers, "A sincere thank you, but goodbye". The rationale for their continued presence as hereditary Peers has, frankly, long since worn out. Forty years after the passage of the Life Peerage Act the argument for pragmatism is also exhausted. The Government intend to proceed with the Bill. We intend to proceed with it in the normal conventions of your Lordships' House by listening, and taking note of what people say. There is no intention on the Government Front Bench not to respond appropriately to points made around the House.
This has been an ingenious debate, but nothing in it has begun to convince me that the Government's approach is anything but essential if we are to make any progress with the long term reform of the House of Lords. I commend the clause, the heart of the Bill, to your Lordships.

§ Lord Rees
I have a question which I directed to a degree to the noble and learned Lord the Lord Chancellor 540 on Tuesday but I did not receive a satisfactory answer. If Clause 1 is effective and deprives our hereditary colleagues of a seat in this House, what is the point of Clause 4(2)?

§ Baroness Jay of Paddington
I am sorry if I did not make that clear. I made the point that that was in order to enable the hereditary Peers, who were prevented from membership by virtue of their hereditary peerage, from assuming their citizens' rights and enfranchising them.

The Earl of Erroll
Before the Lord Privy Seal sits down, I feel that she has not answered the question raised by the noble Lord, Lord Grantley. Noble Lords keep quoting Pepper v. Hart. I understood that before Pepper v. Hart, the exact wording mattered in British law. In other words, the manifesto could not be put into the Bill because at this moment I am not sitting and voting; I am standing and speaking. Therefore, this situation would literally not have been covered.
I understood that Pepper v. Hart—this is a serious point—allowed one to take into account the debates that took place on both sides in deciding the intention of legislation when we were trying to comply with European legislation. In that case, can we rely on Pepper v. Hart to interpret all debates and ministerial replies in the way in which the Government would like? If we get it wrong, it will be wrong. That is what worries me.

§ Baroness Jay of Paddington
I say to the noble Earl, as I said in my reply, that the Government have taken legal advice on this matter. Some contributions by noble Lords seem to suggest that we sat down in a restaurant and wrote this Bill out over a cup of coffee or something stronger. This Bill was constructed in the usual way, with enormously valuable legal advice. It is regarded as effective by my noble and learned friend and many others whom he consulted and whom the Government consulted. As neither the noble Lord nor I is a lawyer, I am prepared to stand on that legal advice and to defer once again to the sovereignty of Parliament.

§ Lord Trefgarne
I suggested, together with my noble friend Lord Northesk, that we have the debate on Clause 1 stand part. It is now time to bring that debate to a close. I am grateful to the noble Baroness for her long and detailed reply to many of the points raised. Clearly she has not convinced very many noble Lords.

Noble Lords
Oh!

§ Lord Trefgarne
If noble Lords opposite are convinced, then I am happy. Perhaps I may make one point. The noble Baroness referred to the fact that hereditary Peers are here by accident of birth. She should know that my mother takes great exception to that remark!

§ Clause 1 agreed to.

§ House resumed.

§ House adjourned at two minutes before ten o'clock.