House of Lords Bill (Hansard, 15 June 1999)

HL Deb 15 June 1999 vol 602 cc217-76 217

§ 8.47 p.m.

§ Consideration of amendments on Report resumed on Clause 1.

§ Earl Ferrers moved Amendment No. 7:

§ Page 1, line 5, leave out ("by virtue of") and insert ("because he holds")

§ The noble Earl said: My Lords, in moving Amendment No. 7, I shall also speak to Amendments Nos. 42 and 81.

§ These amendments differ slightly from our proposals in Committee. They seek to leave out the words, "by virtue of', and to insert the words, "because he holds". The Bill as presently drafted states that, No-one shall be a member of the House of Lords by virtue of a hereditary peerage".

§ I suggest that the words should be changed and the Bill should read, "No one shall be a Member of the House of Lords because he holds a hereditary peerage".

§ The words that I have suggested are far clearer. I do not know exactly what "by virtue of' means. If a Peer is to be excluded from the House of Lords, I suggest that he or she should be excluded because he or she holds a hereditary peerage. In fact, everyone is here not "by 'virtue of a hereditary peerage or "by virtue of' a life peerage; Members are here by virtue of the Writ of Summons.

§ This goes to the heart of the matter. I respectfully suggest that the Government are wrong. If we are all here, it does not matter whether we are life Peers or hereditary Peers. The reason we are here is that we have received a Writ of Summons. When you receive a Writ of Summons, it summons you to Parliament. Once you have come to Parliament, the Writ is, as it were, a spent bullet and it has gone. You are here in Parliament having obeyed the Writ. Later we shall come to an amendment which I suggest is also correct. Once a person has come to Parliament and obeyed the Writ it cannot then be said that the Writ of Summons applies to some people for the remainder of the Parliament but for others it can be truncated half-way through.

§ As I believe I suggested to the noble and learned Lord the Lord Chancellor last time, it is rather like buying a railway ticket that permits you to travel from 218 London to Edinburgh. If one is thrown off at Peterborough, one will feel that has one has had a pretty raw deal. The fact is that the Writ of Summons brings one to Parliament. All of us are here by virtue of that Writ, not by virtue of a hereditary peerage or life peerage. I do not seek to make life difficult for the Government, but to help them. It is not impossible that they may be challenged on this matter. If they were good enough to change the wording to, because he holds a hereditary peerage",

§ the Bill would be clearer and the Government would be much more in the clear. I believe that those are excellent reasons why the Government should accept the amendment.

§ I know that the brief of the noble Lord, Lord Williams of Mostyn, who I am certain is to reply, and all noble Lords on the Government Front Bench is to accept no amendment or argument, but the noble Lord, Lord Williams, is a gracious man, a big person and sometimes overrides his brief. I believe that iii this case he should override his brief because my amendment makes much more sense. I beg to move.

§ Lord Brightman
My Lords, I have enormous respect for the noble Earl. However, in my respectful opinion, the wording of the Bill as drawn is as plain as a pikestaff. There is really no profit in debating this matter at any greater length.

§ Lord Mayhew of Twysden
My Lords, it is with every proper degree of diffidence that I venture a slightly longer opinion than that which has just fallen—I believe that that is the right expression to use in these circumfstances—from the noble and learned Lord who sits opposite. I also venture to intervene very diffidently for fear of spoiling the marvellous impression given by my noble friend Lord Ferrers in appealing to the better instincts of the noble Lord, Lord Williams of Mostyn.
I simply did not understand the way in which the noble and learned Lord the Lord Chancellor defended the wording of this clause as a tigress defends her cubs. He appeared to believe that the determination of the Government to hold to their election manifesto would somehow be judged by whether they stuck to this wording. He did not appear to understand that all we suggested was that in our respectful opinion there was a measure of doubt that could be overcome. We had substantial debates on this clause in Committee and tried in vain to make clear, as my noble friend just that we sought simply to avoid uncertainty. After all, that is part of the function of this House.
We went to the extent of furnishing the Lord Chancellor with an opinion by Mr Lofthouse, Treasury counsel in peerage matters. He set out an argument that gave powerful weight to the point that the present wording might be successfully challenged because what made one a Member of this House was not the holding of a hereditary peerage but applying for, receiving and returning a Writ of Summons. It is common ground that until one has gone through that procedure one cannot fulfil one's duty to attend, speak and vote in this House. If one cannot fulfil the duties of a Member of the House 219 of Lords there must, surely, be a sensible argument, to put it no higher, that one is not a Member of the House of Lords. It may be said that one's membership is inchoate and it is only when one has gone through that procedure that one can fulfil one's duties.
All that we were saying in the amendments proposed then, and all that my noble friend suggests now, is that we should use language that puts the matter beyond doubt. Unfortunately, the noble and learned Lord the Lord Chancellor at the beginning of his reply pointed out that Mr Lofthouse was not a Queen's Counsel. He is not a Queen's Counsel because he is Treasury junior counsel. It may be a small point, but if one becomes a Queen's Counsel one cannot do that job. The opinion needed to be dealt with on its merits. I do not say that it is right. With great respect to the noble and learned Lord who has just spoken, I suggest that there is an argument to the contrary that can be supported by an advocate far more distinguished than myself, which is not a particularly high hurdle to overcome. Therefore, it is desirable to avoid doubt, if it can be avoided. That is exactly what my noble friend puts forward in his amendment.
For my part, I cannot see much difference between "by virtue of" and "because of". I believe that the Government have it well within their power to make absolutely clear that a person shall not be a Member of this House if, being the holder of a hereditary peerage, he has received a Writ of Summons. Of one thing I am sure: this matter will be challenged by a hereditary Peer at some time or other. Although it is always fun to see the Government with egg on their face, it is our function to avoid this happening as a result of uncertain drafting of legislation when that can be avoided.

§ Lord Strathclyde
My Lords, I have a good deal of sympathy with the thinking behind this amendment, which was moved by my noble friend Lord Ferrers, supported by my noble and learned friend Lord Mayhew. An issue needs to be resolved. The noble and learned Lord, Lord Brightman, may be right in one respect. This may not be the best place to resolve this matter. It may not have escaped the notice of the Government Benches that my noble friend Lord Kingsland has tabled a Motion, on which we shall ask the opinion of the House, as to whether this particular matter should be referred to the Committee for Privileges at the earliest opportunity. After all, the Committee for Privileges is probably the correct forum in which such matters should be decided.
It may well be that we could have amended this Bill in Committee, but at the end of the day it resulted in a legal argument between different sides. I believe that it is better for those legal arguments to be resolved in what is as near as possible a court of law; namely, the Committee for Privileges. I understand that that is one of the purposes of that great committee. Although I very much welcome the opportunity that my noble friend has given us to debate the issue again, I believe that there is a better place in which it can be done; but I entirely 220 support his intention. There is a doubt which can be easily clarified, and it should be done at the earliest opportunity.

§ Lord Williams of Mostyn
My Lords, the noble Earl, Lord Ferrers, invited me to overturn my instructions in the brief, and the noble and learned Lord, Lord Mayhew of Twysden, appealed to what he described as my better instincts. It is notoriously well known that I am not let out unaccompanied to give vent to my better instincts or to overrule the brief. The noble and learned Lord said that it was always fun to see a government with egg on their face. He had many years to savour that experience when he was such a distinguished member of the former government.
What the noble and learned Lord, Lord Brightman, says is both short and correct. If I had ever had the prospect of sitting with him judicially, I would have been able to say that I agreed with everything that had fallen from my noble and learned friend and had nothing to add. There is nothing to add. It is perfectly simple. We have said that the disqualification arises in effect by virtue of a hereditary peerage, and that includes any holder of a peerage by virtue of acceleration and any holder of a hereditary peerage by virtue of the termination of a peerage in abeyance. We needed to find a proposition that would flexibly cover direct and indirect relationships with hereditary peerages.
There is the point about the Writ of Summons. But the Writ of Summons runs only for someone who has an entitlement to it by virtue of an hereditary peerage. Indeed, the Writ is not simply a summons to come and take the Oath. The Writ requires the recipient to attend and treat and give counsel upon the affairs aforesaid. No one can sensibly suggest that turning up, taking the Oath and never returning, would be a proper, faithful response to that summons.
It is perfectly straightforward and clear. No one is to sit here by virtue of an hereditary peerage. As the noble Earl, Lord Ferrers, is about the remind me, the Bill states, by virtue of a hereditary peerage". I think that we sufficiently knocked that argument about rather like a game of table tennis between us.
It is perfectly simple and perfectly plain. I cannot improve or further embroider upon what fell from the noble and learned Lord, Lord Brightman.

Earl Ferrers
My Lords, when the noble and learned Lord, Lord Brightman, began by saying, "I have enormous respect for the noble Earl, Lord Ferrers," I thought that hell was about to open up; and sure enough it did! He said that we have discussed the issue; it is perfectly simple; there is no more to be said. That was a very perfunctory argument. In the days when people were hanged for murder, if I had been in the dock and the noble and learned Lord had been the judge and had said, "You're guilty so there is no point in saying any more. You will hang", I should have thought that that was a pretty rotten judgment.
Perhaps I may respectfully and gently suggest that the noble and learned Lord might have done a little better. He might have said why the amendment was so wrong 221 and so awful. I agree with my noble and learned friend Lord Mayhew of Twysden. This may not be the right answer but it is clearer and more satisfactory than the provision in the Bill. The noble Lord, Lord Williams of Mostyn, said that my noble and learned friend said that we like to see the Government with egg on their face. My noble and learned friend did not say that. He said that periodically the Government have egg on their face and even we try to prevent that from happening.
It would be a great pity if there were a legal challenge and the Government were to find egg on their face. I should try not to smile and say, "We told you so". However, it seems, regretfully, that we shall not make this alteration. Whatever one says, the noble Lord, Lord Williams of Mostyn, says no to it, except that twice he referred to "an" hereditary peerage. I am sure that it was a slip of the tongue. But he had not the courage of his conviction at Committee stage to overturn his brief. When I tabled an amendment to change "a" to "an", the noble Lord said that we could not do that. What was the reason? Because the parliamentary draftsman has always put it that way. So we can change all the procedures for the opening of Parliament, and for introducing new Peers. We can change everything, but what the parliamentary draftsman says is sacrosanct. I should have thought that the noble Lord might have chased him and said, "You must be a bit more with it. Just use one more letter of the alphabet and make it 'an' instead of 'a", in particular when the noble Lord cannot stop himself saying "an" the whole time. It shows a defect in his character that he has not persuaded the parliamentary draftsman or the powers that be to accept that amendment. However, he did not do so and we have to live with that.
I suppose that we have to live with this provision, but I am tempted not to do so. I am tempted to ask your Lordships to consider whether it would be better to have "because he holds" a hereditary peerage as opposed to "by virtue of' a hereditary peerage. I am hesitant because my noble friend Lord Strathclyde said that the right way for this issue to be decided is in the Committee for Privileges. The noble Lord, Lord Williams of Mostyn, in his usual skilful way failed to address that matter. Perhaps it was a little inconvenient for him. But if he were to say that the matter will be considered by the Committee for Privileges, I should be happy to withdraw the amendment. If he says that it will not be considered by the Committee for Privileges, I might ask your Lordships to consider whether we should put these words in the Bill.
I am sure that the House will give the noble Lord, Lord Williams of Mostyn, leave to speak again if he felt willing.

§ Lord Williams of Mostyn
My Lords, I always say "an" just to tease the noble Earl, Lord Ferrers, and to check that he is still awake—and he always is—in exactly the same way as he always says "a" to check that I am still awake; and unfortunately I normally am! 222 It is not for me to pre-judge the wish of your Lordships. Therefore when the noble Lord, Lord Strathclyde, says that a Motion may be brought forward it would be quite wrong, unprecedented, and wholly disrespectful for me to offer a view.

Earl Ferrers
My Lords, that puts me in a fix, as the noble Lord expected. I think that it would be a good idea to see what your Lordships think. I believe that it would be better to have these words in the Bill. view.

§ 9.6 p.m.

§ On Question, Whether the said amendment (No. 7) shall be agreed to?

§ Their Lordships divided: Contents, 62; Not-Contents, 121.

223

Division No. 2
contents
Ashboume, L.	Mancrofi, L.
Bathurst, E.	Mayhew of Tv/ysden, I. [Teller.]
Belhaven and Stenton, L.	Mersey, V.
Berners, B.	Molyneaux of Killead, L.
Boardman, L.	Monk Bretton, L.
Brentford, V.	Monson, L.
Clanwilliam, E.	Montrose, D.
Clifford of Chudleigh, L.	Mountgarret, V.
Clinton, L.	Moyne, L.
Coleraine, L.	Northbrook, L.
Craig of Radley, L.	Park of Monmouth, B.
Cross, V.	Pearson of Rannoch, L.
Denham, L.	Quinton, L.
Ellenborough, L.	Rathcavan, L.
Falmouth, V.	Reay, L.
Ferrers, E. [Teller.]	Rennell, L.
Fisher, L.	Romney, E.
Forbes, L.	SL John of Fawsley. L.
Fraser of Carmyllie, L.	Saltoun of Abernethy, Ly.
Goschen, V.	Sharpies, B.
Gray, L.	Soulsby of Swartham Prior, L.
Harding of Petherton, L.	Stodart of Leaston, L.
Hooper, B.	Thatcher, B.
Iveagh, E.	Thomas of Gwydir, L.
Jopling, L.	Torrington, V.
Kinnoull, E.	Trefgame, L.
Kintore, E.	Trenchard, V.
Knight of Collingtree, B.	Tugendhat, L.
Lauderdale, E.	Waddington, L.
Lyell, L.	Willoughby de Broke, L.
McConnell, L.	Young, B.

NOT-CONTENTS
Acton, L.	Carlisle, E.
Ahmed, L.	Carter, L. [Teller]
Allenby of Megiddo, V.	Chandos, V.
Alli, L.	Chorley, L.
Amos, B.	Christopher, L.
Archer of Sandwell, L.	Clarke of Hampstead, L.
Ashley of Stoke, L.	Cocks of Hartcliffe, L.
Attenborough, L.	Crawley, B.
Bach, L.	David, B.
Berkeley, L.	Davies of Coity, L.
Blease, L.	Davies of Oldham, L.
Borrie, L.	Desai, L.
Brightman, L.	Dixon, L.
Brooke of Alverthorpe, L.	Donoughue, L.
Brooks of Tremorfa, L.	Dormand of Easington, L.
Burlison, L.	Dubs, L.
Callaghan of Cardiff, L.	Eatwell, L.

223

Evans of Watford, L.	Montague of Oxford, L.
Fanington of Ribbleton, B.	Morris of Castle Morris, L.
Gilbert, L.	Morris of Manchester, L.
Glanusk, L.	Newby, L.
Goodhart, L.	Peston, L.
Gordon of Strathblane, L.	Pitkeathley, B.
Gould of Potternewton, B.	Plant of Highfield, L.
Graham of Edmonton, L.	Ponsonby of Shulbrede, L.
Grantchester, L.	Prys-Davies, L.
Grenfell, L.	Putnam, L.
Hacking, L.	Ramsay of Cartvale, B.
Hanworth, V.	Rea, L.
Hardy of Wath, L.	Redesdale, L.
Harris of Haringey, L.	Rendell of Babergh, B.
Haskel, L.	Richard, L.
Hayman, B,	Rodgers of Quarry Bank, L.
Hilton of Eggardon, B.	Rogers of Riverside, L.
Hogg of Cumbernauld, L.	Russell, E.
Hollis of Heigham, B.	Sainsbury of Turville, L.
Howie of Troon, L.	Sandberg, L.
Hughes of Woodside, L.	Sawyer, L.
Hunt of Kings Heath, L.	Scotland of Asthal, B.
Irvine of Lairg, L. [Lord Chancellor.]	Sewel, L.
	Sharp of Guildford, B.
Janner of Braunstone, L.	Shepherd, L.
Jay of Paddington, B. [Lord Privy Seal]	Simon, V.
	Simon of Highbury, L.
Kennedy of The Shaws, B.	Smith of Gilmorehill, B.
Kennet, L.	Stone of Blackheath, L.
Linklater of Butterstone, B.	Symons of Vernham Dean, B.
Lockwood, B.	Taylor of Blackburn, L.
Lofthouse of Pontefract, L.	Thomson of Monifieth, L.
Macdonald of Tradeston, L.	Thornton, B.
McInlosh of Haringey, L. [Teller.]	Tomlinson, L.
	Tope, L.
Mackenzie of Framwellgate, L.	Tordoff, L.
Mackie of Beashie, L.	Walpole, L.
McNair, L.	Warner, L.
Mallalieu, B.	Watson of Invergowrie, L.
Mar and Kellie, E.	Weatherill, L.
Marsh, L.	Whitty, L.
Merlyn-Rees, L.	Williams of Mostyn, L.
Milner of Leeds, L.	Winchilsea and Nottingham, E
Molloy, L.	Winston, L.
Monkswell, L.	Young of Old Scone, B.

§ Resolved in the negative, and amendment disagreed to accordingly.

§ 9.15 p.m.

§ Lord Shepherd
My Lords, perhaps I may raise a question with the noble Baroness the Leader of the House. We have had a serious, long debate. I do not think that anybody would criticise anyone from any quarter of the House for the time taken on this important Bill. However, here we have an example where, after a fairly long debate, a member of the Opposition decided that the opinion of the House should be tested—I suspect that he had the full support of the Front Bench—only to find that the Conservative Whips were active at the Door in seeking to persuade members of their party not to vote. Is that in the interests of the House and its proper consideration of the Bill? Can the noble Baroness the Leader of the House advise us on this matter?

§ Baroness Jay of Paddington
My Lords, it is not for me to offer advice to the noble lord the Leader of the Opposition or, indeed, the Opposition Chief 224 Whip, who I see is not in his place, on the way in which they advise their Members to behave when a Division is called.
My noble friend is right that this Division was called by a member of the previous Conservative government. I believe, however, that he was not speaking in a Front Bench capacity but in a personal capacity, as he has done at other stages of the Bill. It is therefore obviously open to him to ask the opinion of the House, if he so wishes. It is for the Leader of the Opposition and the other Members of the Front Bench to advise their colleagues. It is not for me to have a view on that.

§ Lord Strathclyde
My Lords, this is the most extraordinary debate that I have ever heard. I am completely amazed. Of course, what probably happened is that the noble Lord, Lord Shepherd, reminded himself just how awful it is being in government. He was probably just tucking into his main course downstairs in the Barry Room when the Division Bell rang and he had to struggle up here only to discover that the Labour Party had a majority of nearly 50. I understand his frustration at that, but that is what happens in government. It is not for me to give noble Lords opposite a lecture.
My noble friend Lord Ferrers did what was entirely appropriate as far as he was concerned. He was well within his rights. I am glad that he had so many people supporting him. I made my views from the Front Bench entirely plain for all to see. The noble Lord, Lord Shepherd, will be able to reflect at his leisure tomorrow when he reads Hansard that I did not seek to encourage the Conservative Party to vote. If the Opposition Whips were letting Conservatives know our view, I believe that to be remarkably sensible. I am glad that the machinery was as efficient as it clearly was.
I do not know whether it is the desire of the Government Front Bench to continue this debate or whether we can carry on with the business. I am rather keen to carry on with the business.

Earl Ferrers
My Lords, I am not so sure that I want to carry on with the business! The intervention by the noble Lord, Lord Shepherd, was extraordinary. I tabled this amendment, which I thought to be a jolly good amendment; and I suggested we had a Division on it. That was perfectly reasonable. Whether or not my Front Bench colleagues joined me was entirely a matter for them. I wanted to test the opinion of the House. If the result of the Division had been the other way round and we had won by 120 and they had lost by 60, the complaint would have been that we had bussed everyone in. Of course, they bussed everyone in, ranks and all. They all came out from the woodwork for the vote. Of course, when the Government win, that is fine and dandy; if we win, that is a wicked and terrible thing. I think the whole thing is a total farce. My noble friend was quite right: seeking a Division was perfectly justified. I am glad that all those who supported the amendment did so, and I am sorry for those who decided to go in the 225 opposite Lobby, including the noble Lord, Lord Shepherd. I think he made a great mistake, but there we are.

§ Lord Shepherd
My Lords, in view of the advice that has come from the noble Earl, Lord Ferrers, and the noble Lord, Lord Strathclyde, we should cut the cackle and get on with this damn Bill.

§ The Earl of Clanwilliam moved Amendment No. 8:

§ Page 1, line 6, at end insert— ("(2) But any holder of a hereditary peerage who has been elected to—

(a) the House of Commons,
(b) the European Parliament,
(c) the Scottish Parliament,
(d) the Northern Ireland Assembly,
(e) the National Assembly for Wales,
(f) a regional assembly in England,
(g) the Greater London Authority,
(h) a local authority, or
(i) consecutively to any of the bodies listed in paragraphs (a) to (h),

for a continuous period of seven years shall be entitled throughout his life to receive a writ of summons to attend the House of Lords and to sit and vote in that House by virtue of that peerage on the completion of that period or, in the case of a member of the House of Commons, on the day after he ceases to be a member.

§ (3) In subsection (2) "local authority" means—

(a) in relation to England, a county, district or London borough council;
(b) in relation to Wales, a county or county borough council;
(c) in relation to Scotland, a council for a local government area, and
(d) in relation to Northern Ireland, a county, district or county borough council.")

§ The noble Earl said: My Lords, we are having a bit more cackle, I am afraid. I hope that my Front Bench will give me equal support to that which the noble Earl, Lord Ferrers, received. I see that noble Lords opposite have been bussed in in large quantities, so I have not much faith.

§ I moved my amendment very late at night on our last day in Committee and was chided by the noble Lord the Captain of the Gentlemen at Arms on several counts. It is to those counts that I wish to revert. I may be accused of going over old ground, but I am merely trying to correct the argument that was put against my amendment.

§ In the first instance, the noble Lord was astonished that anyone who retires, leaves office or loses his seat in another place should be entitled to a seat in your Lordships' House. I can look around this House and see a large number of Peers who have come here as a result of a misfortune at the ballot box. The noble Lord could have added that the Peer may have been deselected by the constituency or by Millbank bosses; and that would be another excellent reason why he or she would be a suitable and important addition to your Lordships' debates as a representative of unfashionable views of which this House is the essential preserver. It was the 226 noble and learned Lord, Lord Simon of Glaisdale, who spoke so persuasively of the genetic pool and it is that genetic pool which I wish to preserve in this House.

§ My amendment requires seven years of public service which means that hereditary Peers will have been twice selected by the electorate. To be elected once may be a fluke; but surely to be elected twice is a stiff enough test of one's democratic legitimacy. The noble Lord, Lord Randall, spoke movingly of the automatic right under the gentle approach. This is one solution that reacts to the noble Lord's solution. To argue otherwise is simply to twist the reality: that a Peer may inherit many years after a period of service; he may inherit while he is a serving Member; he may indeed inherit after a general election at which his party receives a vote of no confidence. That appears to be the noble Lord's objection in chief. But in no way does it reduce the value of the Peer's service to the community in the past. He will, by means of this amendment, be a recipient of the privilege of his inheritance. That is the intention of this amendment.

§ I commend to the House the well argued defence of the hereditary principle which was defended by the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Randall of St. Budeaux.

§ The second complaint is that a regional assembly is included in the amendment. The noble Lord said that this is a concept that does not yet exist. I must disabuse the noble Lord of his error. He may not have been very happy with his memories of the recent election of MEPs, but I must remind him that the Government, at the behest of the Commission, have already divided the country into 11 Government Office regions to rearrange the voting structure of the electorate. It may be by the way and not particularly germane to this argument that the Government may be coming to regret the change in anticipation of the federal state of Europe to which we are being slyly encouraged. The regional assemblies do not yet exist, but it would be foolhardy not to include the prototypes that the Government have introduced in the drafting of this amendment.

§ Thirdly, we are told that it is not clear whether the Peer will sit for life or for one Parliament. As he will sit as a hereditary Peer, he will not therefore be subject to any future electoral event. As the noble Lord will recall, hereditary Peers have first to prove the legitimacy of their claim to their title and only then can the Writ of Summons be issued for that and succeeding Parliaments. I am advised that once a Writ of Summons is issued in a Parliament after the Bill is passed, then that Writ is for the life of that Peer. It can be claimed at the opening of each Parliament and cannot be abrogated except in circumstances of bankruptcy or "barminess".

§ Clause 4(2) says any Writ of Summons shall not have effect after the Session in which the Act takes effect. This amendment clearly and by implication addresses that clause in the instance of a Peer who has demonstrated his political and democratic legitimacy.

§ The noble Lord seems to have sought to rubbish my amendment and shows concern that a Peer who has been a Member of the other place could not seek re-election there. Presumably the speaking notes to which he 227 referred assumed that the Peer would only sit for one Parliament. It is therefore his notes that are rubbish and not my amendment. However, to make doubly clear I added to the amendment the phrase, "throughout his life". The Peer should keep his seat and his heirs and successors should have the right and responsibility to establish their own democratic legitimacy before claiming their own Writ of Summons for their own lifetime in turn.

§ I accept that this is in direct contradiction with the essence of the Bill, but it is a small concession to make to allow such a small band of exceptional hereditary Peers as will be enfranchised by this amendment to sit and vote and continue as representatives of an ancient and honourable past. This is my answer to the noble Lord's coup de grace when he explains that hereditary Peers are unacceptable in principle and in social or any other terms as a representative of the people of this country as a whole. My amendment raises the stakes to a level where the Peer has proven himself to be acceptable in exactly those terms.

§ My noble friend Lord Mackay of Ardbrecknish asked why there should be such discrimination. The answer is simple. Because he is a Peer whose rights in this House are immemorial, as the noble and learned Lord, Lord Simon of Glaisdale, inferred in his acceptance of the genetic pool which they represent.

§ Amendment No. 21 is an amendment to the Weatherill amendment and will continue the element of hereditary peerage. I beg to move.

§ Lord Graham of Edmonton
My Lords, sock it to them!

§ Lord Carter
My Lords,—

§ Lord Strathclyde
My Lords, the Government Chief Whip was extremely quick on his feet. I was still wondering whether my noble friend Lord Clanwilliam was going to say something else; clearly not.
This is clearly an important and interesting amendment. It deals with issues that the Government Front Bench must resolve and answer. At Committee the noble Lord, Lord Carter, said that this Bill would end the rights of hereditary Peers to sit and vote. A few days later that was changed. I very much welcome that change.
The noble and learned Lord the Lord Chancellor, in speaking in support of the Weatherill amendment, said that the election of hereditary Peers as proposed under Weatherill would have the result that they would have greater authority. If we follow that logic through, how much more so would the election of Peers from high office. Would not the House benefit from the services of my noble friends Lord Stockton, Lord Inglewood and Lord Bethell and others when they finish their long and triumphant service in the European Parliament?
It is said that your Lordships are not representative. Is not election to high office and service in that office for a period of seven years, which must imply that they have been re-elected, the mark of someone who has 228 been judged worthy by the people to represent them? It is said that they are not legitimate, but has not the fact of the election given them authority, as the noble and learned Lord conceded, and that authority will be given to representative Peers in respect of the Weatherill amendment? This amendment would retain in the House Peers who have been elected to a range of democratic bodies. That is a good thing. The Government are falling into the danger, in a fit of ideological abandon, of clearing people out of the House whose experience is of value, not just to the House but to the whole nation.
There is a small group who have had the legitimacy proclaimed by an election, an election incidentally from which the Front Bench team opposite have not benefited. Might it not be right for the Government to consider this small number of people who might be included on the list that my noble friend proposes? It may be that the amendment is too widely drawn and that my noble friend would want to reflect upon that before he brings it back at Third Reading. I hope that the noble Lord the Government Chief Whip who is clearly going to answer on this, will give an encouraging and constructive reply to my noble friend.

Earl Ferrers
Before the noble Lord, Lord Carter, rises again, I hope he will give this consideration and not do what his noble friend behind suggested that he should do when the noble Lord, Lord Carter, rose before. I do not know whether he was aware but the noble Lord, Lord Graham of Edmonton, said, "Sock it to them". That is neither a very agreeable nor a very friendly expression coming from the noble Lord behind. It was rather like a schoolboy with a catapult. This expression comes out once every other meeting on this Bill. I do hope that the noble Lord, Lord Carter, will give a considered answer and a respectful answer and will not sock it to us.

§ Lord Graham of Edmonton
My Lords, he is rattled.

§ Lord Carter
My Lords, the noble Earl, Lord Clanwilliam, said that he was chided by me at Committee. I have to tell the noble Earl that I propose to continue the chiding. The noble Lord, Lord Strathclyde, appeared a little reluctant to come to the Dispatch Box and, having heard his speech, I can understand why. My noble friend Lord Graham always says "Sock it to them" when a Front Bencher rises.
A very similar amendment was tabled in Committee and one of the criticisms levelled at it then was that it was unclear as to whether a Peer who met the criteria would sit for life in the House of Lords or just for the duration of a Parliament. This amendment removes this ambiguity by stressing that the entitlement to sit in the House of Lords is for life, which makes the amendment more curious than it was in Committee. It will allow hereditary Peers to sit and vote in the House of Lords as of right after serving on another specified elected body for seven years. This continues to contradict the manifesto commitment because it continues to afford preferential treatment to hereditary Peers on the basis of 229 their birth. No other individuals who serve as elected representatives for the necessary period will be admitted to the House of Lords as of right.
In Committee, the noble Earl, Lord Clanwilliam, said the purpose of this amendment was to retain an element of the hereditary principle. Notwithstanding the acceptance of the Weatherill amendment, your Lordships' House will by now fully understand that we are unable to accept this amendment and why we are unable to accept it. It directly contravenes the principle of ending the automatic right of an hereditary Peer to sit and vote.
In Committee, we pointed out the effects of the similar amendment and they remain in the amendment before us today. I ask whether it is only the hereditary Peers who will be able to prove their democratic legitimacy. This scheme is extraordinary because hereditary Peers who have been elected to other bodies have the automatic right to return to the House of Lords. I ask why they should be favoured over other members of those elected bodies who may be considered for membership of the House of Lords. The same argument against including people in the legislature because of accident of birth rather than because of individual merits applies.
In allowing the bodies listed in this amendment to act as types of workplaces where hereditary Peers can spend a seven year apprenticeship before entering this House insults the standing of all those worthwhile chambers. If hereditary Peers wish to continue their public service and stand for election to another body, then all well and good. But to suggest that once they have completed the seven year stint, they can then by right return to this place, is, I am afraid, unacceptable.
The noble Earl, Lord Clanwilliam, wants this amendment passed, in his own words, as a memorial to the service that the hereditary Peers have provided. I am second to none in acknowledging the public service of many hereditary Peers. This amendment is not the way to acknowledge that service. Therefore the noble Lord will not be surprised to learn that the Government are unable to accept this amendment.

The Earl of Clanwilliam
I am most grateful for the support which I have received from the Front Bench and from the noble Earl, Lord Ferrers. Certainly I cannot accept the contention of the Chief Whip. I know that the Government's requirement is the elimination of all hereditary Peers. However, I suggest that the Government should respect the valuable service which they have offered. If this is the only way to do that, then they should accept the amendment.
However, we shall later deal with Amendment No. 21 which provides for the retention of the hereditary principle in the Weatherill amendment. Therefore, I shall await our discussions on that. In the meantime, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendment No. 9 not moved.]

230

§ Lord Trefgarne moved Amendment No. 10: Leave out Clause 1

§ The noble Lord said: My Lords, I do not intend to speak at any great length to this amendment. As your Lordships know, Clause 1 provides that no one shall be a member of your Lordships' House by virtue of a hereditary peerage. However, there is a respectable view to the effect that none of us is here by virtue of hereditary peerage or, for that matter, a life peerage either. Rather we are here because of the Writ of Summons which we receive at the beginning of each Parliament.

§ The advice goes on to say that the Writ of Summons, once answered at the beginning of the Parliament, is valid for the whole of that Parliament. Those of us who have already in this Parliament answered the Writ cannot be required to leave, at least not in the terms of the Bill as presently drafted, until the end of the Parliament.

§ By contrast, those of us who have not yet attended this House in this Parliament would not now be able to do so if the Bill is passed in its present form. I recognise that this is a highly technical matter relating to long-established law of great complexity. I do not, for one moment, claim to be an expert in those matters. A number of other noble Lords have expressed a similar view to mine and perhaps some of them may speak again this evening.

§ Indeed, my noble friend Lord Kingsland has tabled a Motion to refer this matter to the Committee for Privileges, although he has not yet decided when he may do that. I hope that even at this late stage, the Government will recognise the doubt that there is surrounding this matter. In the meantime, I beg to move.

§ Lord Kingsland
My Lords, as we have argued from these Benches more than once, we need to be sure that the Bill does, as intended, exclude hereditary Peers effectively. Mr Lofthouse has given his opinion that the clause is ineffective. If that is so, it can add nothing to the Bill. Therefore, it will have to go.
The noble and learned Lord the Lord Chancellor asserted, while admitting he did not feel able to enter into what he called arcane questions of peerage law, that the clause is effective. Even if it is not, he has declared that what he wants is clear enough to your Lordships' House.
It is well known that there are many in your Lordships' House who believe that a declaration of intent from the Government Front Bench on any Bill which comes before the House is not enough, especially as, in the case of this Bill, it started with the premise that the purpose of the Bill was to exclude all hereditary Peers. Now we are told that it has a different purpose altogether— namely, to exclude some hereditary Peers, while investing others with what the noble and learned Lord has said is the greater authority of election. It is not peerage law which is arcane; it is the wheels within wheels, within wheels behind which rests what I will flatteringly call the Government's constitutional strategy.
231 The Clause 1 that went through another place and which was introduced in this House is now vitiated by the Clause 2 that the Government voted against in another place, voted for in your Lordships' House and have pledged to vote for in another place, but now warn they might vote against in another place if your Lordships do not behave. Do I make myself clear? If not, that makes my point. What I have described is government policy on Clause 1 of the Bill in a nutshell.
The way forward is to clarify the matter in what I hope I can modestly say is a Motion, which I intend at some stage to put before the House, to refer the effectiveness of this Bill to the Committee for Privileges. This matter has to be determined in some way or other. Either the Government accept amendments which unequivocally, and beyond all doubt, achieve the declared purposes of the Bill—an approach with which we said in Committee we would co-operate—or it must go to the test. There is no third way. As the Government have said that they will not withdraw and re-write this clause in a way that will clarify it, and I fear that my noble friend will not persuade them to do so tonight, we must therefore look to the Committee for Privileges.
In his reply, I hope that the Minister will assure the House that the Government will not seek to resist the reference of this matter to the Committee for Privileges; indeed, to the contrary, I hope that that they will confirm that they will support my noble friend's amendment to clarify the ambiguities of Clause I by reference to the Committee for Privileges.

§ Lord Williams of Mostyn
My Lords, I hope to emulate the economy shown by the noble Lord, Lord Trefgarne. This is a wrecking amendment. No one can be in any doubt about that; there is no alternative put forward by way of substitution. I repeat what has been said so often before: Clause 1 is drafted in a clear way, it is clear as to its effect, and it is clear as to why it works. It is comprehensive and it is plain. Those are significant virtues.
I do not believe that there is any doubt about the effect of Clause 1. Therefore, we do not support the amendment. If it is put to the test, we shall invite noble Lords not to accede to it. The noble Lord, Lord Kingsland, said that he wants the matter put beyond all doubt. We believe that it is. On a reading of the opinion of Mr Lofthouse, we believe that his opinion is not correct in law.
The noble Lord, Lord Kingsland, then asked if I would say whether we would support his Motion. When I know the terms of his Motion and the date of it, and indeed have heard his arguments, I, or one of my colleagues, will give the Government's response. We do not believe that that is necessary. We believe that it is perfectly plain. I do not believe that the Weatherill amendment, of which, as far as I know, the noble Lord, Lord Kingsland, is a supporter, 232 vitiates Clause 1 at all. Indeed, I would ask, perhaps rhetorically, if it did vitiate Clause 1, why on earth did they agree to it in the first place?

§ Lord Trefgarne
My Lords, I listened with care to the Minister's answer but I remain pretty uncertain as to the response of the Government to the questions put by myself and more effectively, and more articulately, by my noble friend Lord Kingsland. There is a respectable view to the effect that Clause 1 is not effective as the Government propose. That respectable view is not confined to noble Lords on this side of the House; indeed, it is not confined to Mr Lofthouse. Other distinguished lawyers have expressed themselves to the effect that there is doubt.
Why do the Government persist with Clause 1 of this Bill which—whatever may be one's position—is not clear and is clearly in doubt? However, the Government persist with it. My noble friend Lord Kingsland is therefore right to suggest that perhaps this matter should be considered by the Committee for Privileges when he moves his Motion in due course. If he does, I shall support him and I hope that the Government will not oppose it. In the meantime I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 9.45 p.m.

§ Lord Pearson of Rannoch moved Amendment No. 11:

After Clause 1, insert the following new clause—

cc232-48

MEMBERSHIP OF THE HOUSE OF LORDS 8,690 words

cc248-76

LIFE PEERAGES FOR DISQUALIFIED PEERS 14,924 words, 1 division