LIFE PEERAGES FOR DISQUALIFIED PEERS

HL Deb 15 June 1999 vol 602 cc248-76

(" . A peerage under the Life Peerages Act 1958 may be conferred on a person notwithstanding that he is disqualified under section I from attending, sitting or voting in the House of Lords, and, accordingly, section 1(4) of that Act shall not apply in relation to any such person.")

The noble Lord said: My Lords, at an earlier stage of the Bill, I drew attention to what seemed to me to be a difficulty generated by the Life Peerages Act 1958. I confess to having been unpersuaded by the reply which I received on that occasion from the Government Front Bench.

Section 1(4) of the 1958 Act provides that a life peerage—and I parenthesise slightly—shall not confer any right to attend or sit and vote in this House on any person who is disqualified therefrom by law. It seems to me almost self-evident that those hereditary Peers who are precluded by law from sitting and voting in your Lordships' House by virtue of the provisions of this Bill would be disqualified from receiving a life peerage, if subsequently they were thought appropriate for that honour.

I must confess that I am slightly reinforced in that view by the knowledge, or so I understand, that those hereditary Peers of first creation—nine in number—who have quite publicly been offered life peerages, have been assured that their new life peerages will be conferred before this Bill becomes law. It seems that an alarm bell must have been ringing in government corridors somewhere to the effect that the difficulty to which I have referred is indeed real. Perhaps that is not so. Perhaps I am mistaken. I look forward to being told whether that is the case.

It seems self-evident to me, as a simple, non-legal person, that the provisions of Section 1(4) of the 1958 Act generate a difficulty with regard to the conferring of life peerages upon dispossessed hereditary Peers, as we shall be as and when this Bill becomes law.

I hope that the Government have given some thought to this matter and can produce a definitive rebuttal to the difficulty which I have perceived. If they are able to do that, I shall, quite happily, withdraw the amendment. I beg to move.

10.45 p.m.

The Earl of Northesk

My Lords, as my name is attached to this amendment, perhaps I may also add my little potted interpretation. I ask myself a simple question: what actually happens when and if the Bill is enacted in its current form? We have to take it on advice from the Government Front Bench that all members of the hereditary peerage, excepting those who are successful in the ballot arising from Clause 2, will be barred; in other words, they will be disqualified in law from being Members of this House. That is the purpose of the Bill. That is its intent. What therefore happens, say, five years after the Bill has been enacted? It may perhaps be decided, even by the current Prime Minister, that a member of the hereditary peerage should be made a life Peer on merit. That is all well and good. However, because of Section 4 of the Life Peerages Act 1958, that singular honour, granted, I repeat, on merit, could not and would not carry with it an entitlement to a Writ of Summons to be a Member of this House. The legal barrier—the barrier in statute—of the Bill would take precedence.

In response to this issue in Committee, the noble Baroness the Lord Privy Seal suggested that there is nothing in the Bill which would remove the right of hereditary Peers to be Members of the House of Lords. I simply submit that that is absurd. That is precisely what the Bill does seek to achieve. Indeed, my interpretation is that that is the Government's intent, as has been stated on numerous occasions and in many different ways by all Members of the Government Front Bench.

In Committee, the noble Baroness indulged in some linguistic gymnastics to justify the Government's position, but no amount of semantics can disguise the simple fact that, as drafted, the Bill does seek to disqualify members of the hereditary peerage from being Members of this House. As such, it falls within the terms of Section 4 of the 1958 Act.

I dislike harping on about this point, but given the fact that the hereditary peerage will be barred from ever again being permitted to receive a Writ of Summons to perform the task of legislative scrutiny here, the Government really ought to think very carefully as to whether the Bill on this issue is properly and adequately consistent with their own Human Rights Act. My own judgment—and I freely admit that I am not a lawyer—is that, on strict interpretation, it is not.

I return to my familiar theme. The Bill, on matters of substantive detail, is not the creature of exquisite simplicity that the Government claim. The particular issue that the amendment seeks to address is a prime example of the lack of clarity and uncertainty engendered by the Government's approach to the Bill. Thus the purpose of our amendment is to plug what we perceive to be a specific gap in that approach. I can but hope that the noble Lord, or whoever is due to reply on the Government Front Bench, will, as my noble friend Lord Trefgarne asked, be in a position to give us a reasoned and a reasonable explanation as to why our interpretation of the situation is flawed. In the absence of that, and with the agreement of my noble friend, I hope that the rest of the House might find favour with this small attempt to deliver that quality of fairness to which members of the Government say they attach so much importance.

Viscount Torrington

My Lords, I know that I have been very impressed, and I believe that many other noble Lords on these Benches have been, with the assiduity with which my noble friends Lord Trefgarne and Lord Northesk have dug around in the nooks and crannies of this Bill, looking under all the stones, trying to find the inconsistencies and the flaws and suggesting improvements to them. Some of those flaws undoubtedly exist. By contrast, the Government seem to be saying, "Our Bill is perfect; it is very clear. It doesn't require any changes". Indeed, the noble and learned Lord the Lord Chancellor has said that on numerous occasions. I think that some people call it "Pepper and Harting" the Bill; I tend to call it "Heckler and Koching" the Bill, or "Webley and Scotting" it.

It is just possible in this particular case that my noble friends have stumbled on an important what I think lawyers call a "lacuna" in the Bill—I am not a lawyer but I believe that is the word—which may need repair. We seem to be left with the ridiculous situation that hereditary Peers, who may he perceived by the outside world as some kind of top dogs, could find themselves at the bottom of the heap. They could be the only people in this country who are not allowed to be Members of your Lordships' House. That would be an extraordinary turn of fate and I really think it should be attended to.

Lord Kingsland

My Lords, the purpose of this amendment, as I understand it, is to clarify the ability of the Government to confer life peerages on disqualified Peers—something that after the commencement of the Act we are led to believe that they intend to do. The Government seem to believe that Clause 1 of the House of Lords Bill will have the same effect as a disclaimer and allow a former hereditary Peer to sit as a life Peer. My noble friend Lord Trefgarne is advised by contrast—and by Mr Lofthouse—that this may not be the case.

Section 1(4) of the Life Peerages Act 1958 states: Nothing in this section shall enable any person to receive a writ of summons to attend the House of Lords, or to sit and vote in that House, at any time when disqualified therefor by law". My noble friend Lord Trefgarne has raised an important point; namely, whether or not Peers excluded by the Act could legally be brought back. It is essential that this point be clarified before the Bill becomes law.

As was pointed out by my noble and learned friend Lord Mayhew of Twysden in Committee, the concept of disqualification is known to the Bill. It is cited in Clause 3 and used as the description of the effect of the Bill. The matter is now complicated by the inclusion of the Weatherill amendment. The noble Baroness the Leader of the House said in her reply that the Bill did not uniquely disqualify hereditary Peers; rather it ended a situation where they were uniquely qualified.

But that was before Weatherill. Now some Peers will be elected and qualified, other Peers will not be elected and will be disqualified. Will they be able to receive life peerages in the light of the 1958 Act? In her reply in Committee the noble Baroness also said that the Government had offered life peerages to some Peers. She cited my noble friend Lord Aldington. But with great respect to the noble Baroness the Leader of the House, that is not the point. The point is not whether the Government can give life peerages now; it is whether they will be able to do so after the Bill becomes law.

At an earlier stage we understand that some Peers on the Labour side were advised that it might need a separate Act of Parliament to confer life peerages on hereditary Peers after the Act was passed. I think we are entitled to ask the Government what is the position. The Government have a duty to make this clear beyond any doubt before the Bill passes. But so far, in my submission, the Government have not done so.

Baroness Jay of Paddington

My Lords, I, of course, accept what the noble Viscount, Lord Torrington, said about the assiduity of the noble Lord, Lord Trefgarne, and the noble Earl in bringing forward a large number of interesting issues both in Committee and when the Bill was recommitted. I remember at some late point in the Committee stage personally congratulating them on their ingenuity in raising a particularly complex issue. I hesitate to use the word "arcane" as that has been attacked in the course of this evening's proceedings. The point they sought to raise in Committee, which has been emphasised by some noble Lords who have spoken in this short debate today, was that they genuinely believed (and they continue to be concerned) that there is what was described as a lacuna in the Bill on this question of the ability of this Government or any government in the future being able to confer life peerages on those who have been previously hereditary Members of this House.

Perhaps I may refer to the question about Peers of First Creation and the moves made by my right honourable friend the Prime Minister to seek to invite Members of your Lordships' House who are Peers of First Creation to accept life peerages in this present stage of the deliberations on the Bill. That was done precisely because those people who were asked if they wished to accept the invitation were people who it was judged by my right honourable friend would, in normal circumstances, perhaps have been given life peerages in any case. It seemed to be legitimate that they should therefore be offered this alternative to the pursuit of an election, if that is what they wished to achieve, under the new Clause 2 of the Bill, or to retire from political life. The idea was simply to offer them an additional opportunity since they might well, in the first instance, have been offered life peerages rather than hereditary peerages when they were first invited to join your Lordships' House.

The noble Earl made much of the overall point of the Bill and, what he called the disbarring from the House of members of the hereditary peerage. He suggested that that was, as it were, a permanent gate coming down on their membership of the House. The point is that they were only disbarred, to use his expression, from membership of your Lordships' House by virtue of the hereditary peerage. There is nothing in the Bill to suggest that, provided they are qualified in other respects—I will return to the question of disqualification later in my response—they are in any other way prevented from becoming Members of your Lordships' House as life Peers; they are simply and categorically disbarred from membership by virtue of their hereditary peerage.

We have considered the various points made very cogently by noble Lords in our previous debate and we considered this question before the Bill was brought before your Lordships. As I hope I have explained, that is the reason why some Peers of First Creation were offered life peerages at an earlier moment. We seriously consider that the amendment is unnecessary; we seriously assert—we have of course had our own legal and constitutional advice on this matter—that all hereditary Peers will be eligible to receive life peerages. We have consistently envisaged that Members of your Lordships' House who sit now by virtue of their hereditary peerage may indeed become those who are most obviously eligible to become life Peers in some future incarnation. We checked that there were no difficulties raised by this under the Life Peerages Act. It was intended to ensure that the usual disqualifications for membership which apply to life Peers—being an alien, a minor or a bankrupt—continue to apply to life Peers. As the present Bill does not prevent hereditary Peers from being Members of the House—but, I repeat, only being a Member of the House by virtue of a hereditary peerage—there is no disqualification on hereditary Peers which needs to be ousted or, to use the noble Earl's expression, barred.

We have already in the course of the day's proceedings on the amendments of the noble Earl, Lord Ferrers, revisited the question of the significance of the expression "by virtue of'. As my noble friend Lord Williams said in responding to the noble Earl, its main attraction is the breadth which it encompasses. In this case there is another significance to it; if you like, a narrowing of the scope. The Bill does not say that no one should be a Member of the House of Lords if he holds a hereditary peerage. That would indeed be a disqualification for membership. But that is not the effect of the Bill.

The Bill is not about disqualification from membership but about barring one of the routes to membership. The route to membership alone of holding a hereditary peerage will of course no longer exist after the Bill comes into force. But everyone still has the same rights as before to seek the remaining routes to membership of your Lordships' House. For example, in the same way that after the Bill is passed a hereditary Peer who is also a Bishop in the Church of England will be entitled to take his seat on the Bishops' Bench if he holds one of the qualifying dioceses, so a hereditary Peer who is made a life Peer will be able to rejoin your Lordships. As I have explained before—the noble Lord, Lord Kingsland, seemed to find this an unhelpful expression; to me it seems reasonably clear—they will not pass from being uniquely qualified to being uniquely disqualified.

The noble Lord, Lord Kingsland, also referred to the contribution of the noble and learned Lord, Lord Mayhew, in our earlier debate and he did indeed point out that the Bill recognises at another point the concept of disqualification, and in its proper place indeed it does. Peers are presently disqualified from being Members of the House of Commons. It is an absolute bar. The Bill removes it where the disqualification is by virtue of the hereditary peerage. By virtue of the hereditary peerage, that disqualification from membership of the House of Commons is removed. But if the disqualification were accompanied by the fact that the Peer in question was a minor or an undischarged bankrupt, the Bill would not remove those disqualifications.

I hope that noble Lord will not believe, as someone said in the course of our short debate, that that is playing with words. It does explain matters with some clarity to me, and I am not a lawyer. I think that it does suggest the difference between the disqualification in the appropriate place and the barring of one route to membership of your Lordships' House which does not cut off all other routes.

A Peer who was a hereditary Peer, a bankrupt, an alien or a minor would therefore remain disqualified in relation to the House of Commons, and that is also the effect of the Bill before us read alongside Section 1(4) of the 1958 Act in relation to this House. The disqualifications that apply to membership of the House of Lords also remain. They are consistent with those that remain to disqualify anyone from being a Member of the House of Commons, but they do not include anything arising from this Bill.

I hope your Lordships will feel that that is an understanding that I have attempted to put in the simple language I myself understand. It is slightly, I agree, a question of double negatives, as I said in answer to the previous amendment proposed by the noble Lord, Lord Trefgarne. But I also explained previously that the present amendment appears to override the disqualifications that I have just described, which do properly apply to hereditary Peers becoming life Peers, both now and in the future. It would therefore, to use the expression that I find helpful but the noble Lord, Lord Kingsland, perhaps does not, continue to make hereditary Peers uniquely qualified. A bankrupt hereditary Peer could become a life Peer where a bankrupt commoner could not. The noble Lord's accompanying amendment, Amendment No. 82—the amendment to the Long Title—illustrates that.

I hope that I have made a little clearer, as I obviously failed to do when we discussed this point in Committee, the difference between disqualification, as the noble Lord, Lord Trefgarne, describes it, and what the effect of the Bill will be. I can only reiterate simply that there is no political intention to prevent hereditary Peers being eligible to become life Peers and no legal bar in this Bill.

The Earl of Northesk

My Lords, before the noble Baroness sits down, perhaps I may clarify one point. I agree with her that there is no absolutist doctrine about disqualification here. However, the disqualification by virtue of a hereditary peerage is nonetheless a disqualification in law. Therefore, the terms of Section 4 of the 1958 Act, under my interpretation, carry force because they include the phrase "disqualified therefore by law". Does she not accept that there is an element of symmetry which needs to be addressed?

Baroness Jay of Paddington

My Lords, it is my legal advice that that is not the case and that the statute, in removing the disqualification for membership, for example, of the House of Commons, except in those instances of being a minor or a bankrupt, is different from that of this Bill, which requires that membership of your Lordships' House should not continue by virtue of a hereditary peerage. But I am advised that that does not override the Life Peerages Act, which enables anyone not disqualified by those other, more limited concepts from becoming a Member of this House. It simply bars one route to membership by virtue of a hereditary peerage, but no others except those limited disqualifications.

The Earl of Northesk

My Lords, with the leave of the House, perhaps I may quickly respond. There remains a fundamental point of principle. It is apparent that there remains a degree of uncertainty on this issue—

Noble Lords

Order!

Lord Hunt of Kings Heath

My Lords, perhaps the noble Earl will explain. Is he intervening to ask the noble Baroness a question, or is he making another speech?

The Earl of Northesk

My Lords, I was simply intervening to ask another question on the back of what the noble Baroness the Lord Privy Seal had said. It is simply this. Does she not accept that her reply indicates that uncertainty remains around this issue?

Baroness Jay of Paddington

No, my Lords. I can only apologise to the noble Earl if he finds confusing my simple explanation using non-legal terms. I had hoped that by putting it in the way that I understand the points, I had made it as clear as I could. believe those points to be reinforced by the legal position. I have no hesitation in suggesting to the noble Earl that that is the correct interpretation.

Lord Trefgarne

My Lords, I readily accept that the Government have a respectable point of view on this matter, which the noble Baroness has enunciated. I accept that it is not their intention to exclude hereditary Peers from the possibility of receiving a life peerage as and when the Bill becomes law, if it does. But the fact remains that there is some doubt about the matter. The noble Baroness has repeatedly asserted that she believes that that is not the case, but she has not persuaded us that there is not some doubt about the matter.

It is not right to pass legislation where there is doubt, which is therefore open to challenge as and when it becomes law, with all the uncertainty surrounding that. We ought to put this matter right. I commend the amendment to the House.

11.7 p.m.

On Question, Whether the said amendment (No. 12) shall be agreed to?

Their Lordships divided: Contents, 47; Not-Contents, 110.

Division No. 3
CONTENTS
Astor of Hever, L.	Lindsay, E.
Barnard, L.	Lucas of Chilworth, L.
Bathurst, E.	Lyell, L.
Berners, B.	Mancroft, L.
Blatch, B.	Mayhew of Twysden, L.
Bridgeman, V.	Monk Bretton, L.
Carnock, L.	Montrose, D.
Clanwilliam, E.	Mountgarret, V.
Clinton, L.	Moyne, L.
Coleraine, L.	Northbrook, L. [Teller.]
Courtown, E.	Northesk, E.
Cross, V.	Norton, L.
	Norton of Louth, L.
Dartmouth, E.	Park of Monmouth, B.
Devon, E.	Pearson of Rannoch, L.
Dundee, E.	Romney, E.
Falmouth, V.	Sempill, L.
Ferrers, E.	Strathclyde, L.
Fookes, B.	Swansea, L.
Gray, L.	Torrington, V.
Harding of Petherton, L.	Trefgarne, L. [Teller.]
Henley, L.	Trenchard, V.
Hooper, B.	Willoughby de Broke, L.
Kingsland, L.	Wynford, L.

Moved accordingly, and, on Question, Motion agreed to.

NOT-CONTENTS
Acton, L.	Carter, L. [Teller.]
Addington, L.	Chandos, V.
Ahmed, L.	Chorley, L.
Alli, L.	Christopher, L.
Amos, B.	Clarke of Hampstead, L.
Archer of Sandwell, L.	Cocks of Hartcliffe, L.
Attenborough, L.	Crawley, B.
Bach, L.	David, B.
Berkeley, L.	Davies of Coity, L.
Blackstone, B.	Davies of Oldham, L.
Blease, L.	Dean of Thornton-le-Fylde, B
Bledisloe, V.	Desai, L.
Borrie, L.	Dixon, L.
Brightman, L.	Donoughue, L.
Brooke of Alverthorpe, L.	Dormand of Easington, L.
Brookman, L.	Dubs, L.
Brooks of Tremorfa, L.	Eatwell, L.
Burlison, L.	Evans of Watford, L.
Carlisle, E.	Farrington of Ribbleton, B.

Gilbert, L.	Monkswell, L.
Glanusk, L.	Montague of Oxford, L.
Goodhart, L.	Morris of Castle Morris, L.
Gordon of Strathblane, L.	Newby, L.
Gould of Potternewton, B.	Patel, L.
Graham of Edmonton, L.	Pitkeathley, B.
Grantchester, L.	Plant of Highfield, L.
Grenfell, L.	Ponsonby of Shulbrede, L.
Hacking, L.	Prys-Davies, L.
Hardy of Wath, L.	Puttnam, L.
Harris of Haringey, L.	Ramsay of Cartvale, B.
Haskel, L.	Rea, L.
Hayman, B.	Rendell of Babergh, B.
Hilton of Eggardon, B.	Richard, L.
Hollis of Heigham, B.	Rodgers of Quarry Bank, L.
Howie of Troon, L.	Rogers of Riverside, L.
Hoyle, L.	Russell, E.
Hunt of Kings Heath, L.	Sainsbury of Turville, L.
Irvine of Lairg, L. [Lord Chancellor.]	Sandberg, L.
	Sawyer, L.
Islwyn, L.	Scotland of Asthal, B.
Jay of Paddington, B. [Lord Privy Seal]	Sewel, L.
	Shepherd, L.
Kennedy of The Shaws, B.	Simon, V.
Kennet, L.	Simon of Highbury, L.
	Smith of Gilmorehill, B.
Linklater of Butterstone, B.	Stone of Blackheath, L.
Lofthouse of Pontefract, L.	Symons of Vernham Dean, B
Macdonald of Tradeston, L.	Taylor of Blackburn, L.
McIntosh of Haringey, L. [Teller.]	Thornton, B.
	Tomlinson, L.
Mackenzie of Framwellgate, L.	Tordoff, L.
McNair, L.	Warner, L.
Mallalieu, B.	Watson of Invergowrie, L.
Marlesford, L.	Whitty, L.
Merlyn-Rees, L.	Williams of Mostyn, L.
Miller of Chilthorne Domer, B.	Winston, L.
Milner of Leeds, L.	Young of Old Scone, B.

11.16 p.m.

Lord Trefgarne moved Amendment No. 13: After Clause 1, insert the following new clause—

RIGHTS OF DISQUALIFIED PEERS

(" . Lords Temporal who are disqualified from attending, sitting and voting in the House of Lords by virtue of this Act—

1. (a) shall not be entitled to receive writs of summons to attend any future Parliament; but
2. (b) shall nevertheless be entitled to enter the Palace of Westminster and use the facilities of the Palace as if they were not so disqualified.")

The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 45 and 49 which stand in my name, and in the name of my noble friend Lord Northesk.

The new clause makes it clear that in future disqualified Peers will not be entitled to receive Writs to attend Parliament. Again, this is intended to clarify what I believe to be the intentions of the Government enshrined in the Bill. The amendment provides that those who are nonetheless not entitled to receive Writs should be entitled to use the facilities of the Palace of Westminster as has been their right ever since the Palace was built originally, all those hundreds of years ago.

It is an elementary courtesy to those hereditary Peers who have served with such distinction, as Ministers have readily recognised, over many years, not to say centuries if we go back to our predecessors.

I hope that the Government agree that this will be a small, innocent, but welcome gesture in an attempt perhaps to smooth the passage of hereditary Peers away from the voting facilities of this House of Parliament. I hope that your Lordships will agree to it. I beg to move.

Lord Haskel

My Lords, the noble Lord seems to have a misconception as to why the facilities are provided. They are not provided in order to have an agreeable club here, but because it is a workplace. In the same way in any workplace canteen facilities are provided because one has to be at the workplace and work unreasonable hours. Today is a good example of that: The canteen facilities are provided so that we can be here at all times as our work requires. It seems to me that the noble Lord is entirely wrong about why these facilities are provided and for that reason I cannot support his amendment.

Earl Ferrers

My Lords, I am deeply tempted to take issue with the noble Lord, Lord Haskel, but I shall not do so. I was concerned because my noble friend Lord Trefgarne was flustered when he had to move his amendment—and understandably so because he was tied up with the previous Division. So flustered was he that he said he was speaking to Amendment No. 49 which was in his name. I should point out to your Lordships that it is in my name, and, with the leave of the House, I wish to speak to that amendment when we reach it and not tonight.

Viscount Mountgarret

My Lords, I do not agree with the noble Lord, Lord Haskel. Indeed, this is a workplace, but surely those who are not to be allowed to vote and speak still have brains and something to contribute. Those noble Lords still left could gain a great deal of insight into all kinds of areas in life. I believe that the noble Lord's amendment has a great deal to offer on its own merits, never mind in the interests of the bar profits, which would suffer enormously!

Lord Trefgarne

My Lords, with the leave of the House, perhaps I may intervene to correct what I said earlier. I had understood that my amendment was grouped with Amendments Nos. 45 and 49. However, as my noble friend Lord Lauderdale is not in his place and my noble friend Lord Ferrers has made it clear that he does not want to speak at this point, I withdraw that suggestion and apologise to your Lordships. My remarks therefore address only Amendment No. 13.

Lord Kingsland

My Lords, I say to the noble Lord, Lord Haskel, for whom I have the greatest respect, that I thought his intervention was uncharacteristically insensitive. The Members of another place, when they retire, have rights to facilities there—

Lord Richard

My Lords, I am sorry to correct the noble Lord on a point of fact, but anyone who has been a Member of the House of Commons and ceases to be so does not have the right to use the refreshment facilities of that House. The only right one has is to go into the Lobby of the House of Commons, which does not fulfil any of the digestive needs of former Members. I am afraid that the noble Lord is wrong.

Lord Ponsonby of Shulbrede

My Lords, I went to the trouble of obtaining the regulation: as they affect former Members of the House of Commons who are not Members of this House. It may be of assistance to the House if I read from them. Former Members of the House of Commons may be admitted via St. Stephen's Lobby—that is, the public entrance and not the Members' entrance; they must wear a photo—pass and they are entitled to eat only in the Terrace Cafeteria and to use the Strangers' Bar. On Monday lunch-times only are they allowed to dine in the Members' Dining Room.

In addition, the regulations state what former Members are not entitled to do. They relate to Members who have performed more than 15 years' service. If they have performed fewer than 15 years' service, they have no entitlements at all. They are not allowed to use any other facilities of the Palace; they are not allowed to entertain guests; they are not allowed to show guests the Line of Route; they are not allowed to use any of the car parks; and they are not allowed to cash cheques in the House's Post Office. So there are only limited facilities for long-standing Members of another place who have since left.

Baroness Park of Monmouth

My Lords, purely for information, what about the Libraries?

Lord Ponsonby of Shulbrede

My Lords, the regulations are clear that former Members of the other place have no rights to use the Libraries.

Lord Davies of Coity

My Lords, is not the issue somewhat more fundamental? This place exists for the purpose of legislating; for revising and scrutinising legislation. It is not a social club. Therefore, or the face of the Bill it would be nonsense to mention the provision of extraneous facilities for anyone. If someone wants a facility over and above what is being provided for in the Bill, that should arise as a result of negotiation and discussion outside the Chamber. One cannot possibly expect this side of the House to place this proposal on the face of the Bill because it would be an absolote nonsense.

Lord Kingsland

My Lords, I find fascinating the strength of feeling that this matter seems to have aroused on the other side of the House——

A Noble Lord

It was a correction.

Lord Kingsland

My Lords, with great respect, it was not just a correction. I do not accept that because I think that Members of another place who leave that other place, at least in certain circumstances have certain rights in another place. Members of another place who come to your Lordships' House have rights in another place. So to exclude members of your Lordships' House from rights in your Lordships' House altogether would be wholly inconsistent with the treatment of Members of another place who cease to be Members of another place.

I understood that the purpose of the Bill was to deal with the political rights of hereditary Peers, not other rights which seem to me, with great respect to Members on the other side of your Lordships' House, to fall into an entirely different category. What political harm can former Members of your Lordships' House do either to your Lordships' House or elsewhere by coming to your Lordships' House and enjoying its non-political facilities? I do not understand that argument.

The Opposition Front Bench does not advocate that this matter appears on the face of the Bill. To that extent, it agrees with the Government. However, it thinks that it should be dealt with in the Committee for Privileges. Indeed, we believe it would be both prudent and statesmanlike to address this issue now.

The presence of the Bishops in your Lordships' House did not prevent your Lordships from conferring rights on Bishops who retire. Your Lordships should not be deterred from doing the same for those hereditary Peers who sadly may, as a consequence of the passage of the Bill, have to leave your Lordships' House.

I hope that we can come together as a House to do that. I hope that this will not be a matter of continuing dispute. It would be inconceivable to think that at the beginning of the next Session the Doorkeepers would be instructed to exclude from your Lordships' premises my noble friend Lord Carrington; the noble Lord, Lord Shepherd; my noble friend Lord Denham; or the noble Lord, Lord Rochester. Does that really reflect the good will of the House?

If Members of your Lordships' House on the Government Benches really believe that these former great men should be excluded, I really will believe that the Government are possessed of a tumbrel mentality.

Baroness Jay of Paddington

My Lords, we have considered these issues several times in your Lordships' House during the passage of the Bill. I recall the noble Viscount, Lord Cranborne, stating eloquently on another amendment similar to this that he would much prefer to go to White's. I think that probably reflects the opinion of many in this House. As I have said, we have debated this on many occasions. There is really nothing new to say in response. Once again, I draw the attention of the House to what is stated in the Companion in reference to proceedings on Report; namely, that arguments fully deployed in a Committee of the whole House should not be repeated at length on Report. Following, as I often do, my noble friend Lord Williams of Mostyn, I intend to abide very strictly to the letter of the law on this amendment.

The questions to which the amendment refers are matters for the House to determine. As the noble Lord, Lord Kingsland stated, the Front Bench opposite does not intend that they should be placed on the face of the Bill. They are not matters for government or Parliament as a whole to dictate in legislation.

Reference has been made to the arrangements in another place and to the arrangements made in your Lordships' House for the Bishops. Those are not laid down in statute but in arrangements made by the House: by your Lordships' House in the case of the Bishops and, in the case of the very limited rights described by my noble friend Lord Ponsonby, by the House authorities in another place in relation to senior ex-Members of the Commons. I would point out that the present amendment appears not only to confer some types of rights on former Members of this House, but also on those who have never been Members of it. I wonder whether that is really what the noble Lord, Lord Trefgarne, had in mind.

As I reminded the House in previous discussions about this and as has been reinforced by my noble friend Lord Haskel tonight, this place is not a club. I drew attention at an early stage in Committee, and shall take a moment to extend it slightly this evening, to the remarks of Lord Salisbury in the debate on the Life Peerages Act 40 years ago. I had not realised the context of that until I read Hansard. That is why I repeat it and admit that it is a form of self-indulgence. He made his remarks about this House not being a club in the context of noble Lords not being able to continue the exclusion of women as life Peers. He said: This House is not a club; it is a place of legislation, and for women as well as for men".—[Official Report, 17/12/57; col. 1231.]

I rest my case.

11.30 p.m.

Lord Trefgarne

My Lords, I can assure the noble Baroness that I had no intention in my amendment of treating those hereditary Peers who are also ladies any differently from those of us who are men.

I too would be happy if this matter had any prospect of resolution in the relevant committee. I would be even happier if the Government would say that they will support arrangements being made by the relevant committee. Those of us who remember the White Paper and the various documents issued by the Government in connection with this matter formed the view—rightly or wrongly—that the Government were not in favour of any sort of continuing rights for those hereditary Peers, some of whom have served in this House for a great many years, who are suddenly excluded and cast out as the Bill proposes.

That said, I recognise that there is another forum in which this matter can be discussed; namely, the relevant committee. I hope that it will be, and soon. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Exception from section 1]:

Lord Willoughby de Broke moved Amendment No. 14: Page 1, line 8, at end insert— ("() Standing Orders of the House shall provide that in any election held to determine who is a person to be excepted from section 1, the electorate shall consist of all peers.")

The noble Lord said: My Lords, Amendment No. 14 differs from the amendment I tabled at recommittal only in that it removes the necessity for any qualificatory hurdle for membership of the electoral college. Heavyweight Peers zeroed in on the weaknesses that are inherent in any hurdle requirement. I listened to those arguments and fully accepted them. However, for the avoidance of doubt, this amendment does not seek to interfere with the principle of the Weatherill amendment—that there should be one system of election by which all parties shall elect the hereditary Peers.

This simple amendment proposes that all Members of your Lordships' House shall be eligible to vote for the 90 excepted Peers in Clause 1 of the Bill. After all, as we have heard on several occasions this is a House of equals. The noble Lord, Lord Peston, said that at recommittal and the noble Baroness. Lady Gould of Potternewton, repeated it today. Of course, that is right. By definition, a House of Peers is indeed a House of equals. Why should some Peers be more or less equal than others? There is no segregation in this House as far as I am aware. There are no Benches marked, "For the use of life Peers only"; there are no gin bottles marked, "For the use of hereditary Peers only". Why should ballot boxes be marked, "For the use of hereditary Peers only"?

At recommittal, my noble friend Lord Cranborne gently accused my amendment of being élitist. I cannot see how broadening the electoral college can possibly be considered élitist; rather the contrary. If élitism carries any connotation of exclusivity, it is the present electoral arrangements that are élitist in excluding life Peers from a vote in this matter.

I also have some difficulty with the shorthand that my noble friend used for the club argument, that no assembly should have the right to select its own members. The element of "clubism" is inherent in the electoral arrangement as set out in the draft Standing Orders. If the timetable in the draft Standing Orders is anything to go by, it seems perfectly possible that those Peers who are to be electing the 90 accepted Peers will still be Members of your Lordship's House, as will the Peers for which they are voting, unless of course the Bill has received Royal Assent by the time that election takes place, and that is about as unlikely as England winning a cricket match.

There will still be this element of Members electing Members, so on those grounds I cannot accept the strictures of my noble friend Lord Cranborne on my amendment. My noble friend Lord Kingsland said from the Front Bench on recommittal that he would be mercifully, or perhaps it was mercilessly, brief—telegraphic. He said that it is wrong in principle to have an election in which one cannot be a candidate; that is, it is wrong for life Peers to vote for the 90 accepted Peers. Life Peers do not need to be candidates in an election for this House because they are already Members. I hope that my noble friend Lord Kingsland will take that on board.

The noble and learned Lord the Lord Chancellor, in answering my earlier amendment on recommittal, concentrated mainly on the numbers. I accept the fact that there is no real case for any number qualificatory hurdle. All he had to say about the principle behind my amendment is that it has been consistently made clear that the election of the 75 will be of hereditaries, by hereditaries, for hereditaries. It has not been made clear. It has been made opaque. There is nothing in the Bill about who should constitute the electoral college. There are understandings, nods and winks, agreements in smoke filled rooms. Earlier this evening, I was speaking with a Peer from the Opposition who said how much he was looking forward to voting for his hereditaries in the election. I had to disabuse him; I told him that he would not be able to vote for his hereditary Peers. He was extremely disappointed. My amendment will allow him and every other Peer in every other part of the House to vote for their hereditaries. It is better that the whole House, and not just a part of it, should have a voice in who has seats in this House.

I remind noble Lords that, after all, we are disposing of seats in Parliament. That is the purpose of this determinedly non-elitist amendment. I do not propose to divide the House this evening, but hope that the noble Lords who may support the idea behind the amendment will perhaps break cover to support it. I beg to move.

Viscount Bledisloe

My Lords, as the noble Lord, Lord Willoughby de Broke, made plain, this amendment differs from and is substantially better than the previous amendment which he moved in Committee because it concentrates solely on the question of who is to be the electorate. It does not muddle the issue or dirty the waters by seeking also to introduce a minimum attendance requirement. In principle, I strongly support the noble Lord's thesis that the electorate for the election under Clause 2 must include the life Peers. However, I remain of the view, which I expressed in Committee, as did many others, that this is not the right time to decide that matter. It must be decided upon when the report of the Procedure Committee comes before the House, when the arguments can be advanced in full in the light of that report.

Notwithstanding that, I would like to say a few words on why I feel so strongly that the electorate should include all the life Peers and to deal with a few of the points raised by the opponents of that thesis in Committee.

First, under Clause 2, the only way in which we can achieve an electorate which is both informed as to the quality of the people being voted for and disinterested is to have the votes of the life Peers. If one looks at the statistics, most of the hereditary Peers who have attended sufficiently frequently to know who is worth having will themselves be candidates—:not all of them but certainly the great majority of them. Therefore, inevitably there must be a temptation for those persons either to enter into electoral pacts with their colleagues—you scratch my back, I'll scratch yours—or to vote in a way which, even subconsciously, is affected by their candidature. If only the hereditary Peers can vote, there will be very few hereditary Peers who are not standing for election and who have attended the House sufficiently regularly in recent years to know the qualities of those for whom they are voting.

Secondly, I suggest that it is wrong in principle to say that those 75 Peers are to be representatives of the hereditary peerage in the sense that they are delegates sent by the hereditary Peers to forward the interests, whatever they may be, of the hereditary Peers. Those persons should be, and must be seen to be, which is very important, those who can contribute most to the House selected by those who know whether or not they can make that contribution.

Also, the concept advanced by the noble Viscount, Lord Cranborne, and others that they are to be representative Peers is constitutionally fundamentally unsound. Clause 3 gives all those who are not continuing Members of the House the right to vote in and stand for elections to the House of Commons. That, which is a basic provision of the Bill, demonstrates that those persons cannot also have representatives in this House because it is a fundamental constitutional principle that no one can vote for representation in both Houses of Parliament. Therefore, whatever the noble Viscount, Lord Cranborne, may have thought, his idea that those are to be representative Peers is a fundamental constitutional anomaly. Standing Orders which provided that only hereditary Peers could vote while they can also vote in and stand for elections to the Commons would be a constitutional anomaly.

That also deals with the alleged analogy with the Scottish system. In Committee it was suggested that the matter should be dealt with in the same way as it was dealt with in Scotland. But Clause 3 does not provide that. The Scottish Peers who could vote for their representatives were all, whether or not they were themselves elected, debarred from standing for the House of Commons or voting in any parliamentary elections. That was the consequence of their right to vote for representatives here. Clause 3 makes it plain that Clause 2 Peers are not representatives and any principle which continues on a representative basis would be in direct conflict with Clause 3.

Finally, perhaps I may mention to dismiss it, as did the noble Lord, Lord Willoughby de Broke, the club point. It seems to me an argument which only the ingenuity of a Cecil could produce to say that it is a club system if one allows all the members to vote, but if only some are allowed to vote that is not a club. Let us just think of how it will look to the outside world: all the old boys scratching each other's back, ringing each other on the telephone and saying, "I was at school with him. Let's have him". The people who can elect on merit and can be seen to elect on merit are the life Peers. When the matter comes before the House in relation to the report of the Procedure Committee, I hope that those arguments will commend themselves to the House.

11.45 p.m.

Lord Desai

My Lords, I should like briefly to support the noble Lord's amendment. I think it makes a lot of sense. I have always thought that if the 15 Committee chairmen could be elected by all of us, so could the other 75. I see no reason why not. Indeed, I would even go as far as saying that all of us should vote for all of them, with the stricture that the numbers—for example, two for Labour, three for the Liberals, and so on—should be kept. We should all be invited to vote for 43 Conservatives or two Liberal Democrats. Why not? As of last Thursday, we are now used to a large ballot paper. Indeed, we could easily do that.

The principle is that, in a sense, we always say that there are no party divisions here—

A noble Lord

Any what?

Lord Desai

I said, no party divisions. We all sort of pretend that we do not really believe in parties, Whips, and so on. We all know about each other's work and, therefore, we ought to be allowed to vote. That is all I wanted to say.

Lord Marlesford

My Lords, I have considerable sympathy with my noble friend Lord Willoughby de Broke. I think it all comes back to how the original compromise was reached. I suspect that the idea of it was modelled on the Scottish system and that, in a sense, must have been what gave people the notion that it would be possible to retain some Members in your Lordships' House who are hereditary Peers. I personally strongly support the Weatherill amendment in its outcome form.

On the other hand, I think that the legitimacy of those Peers, if they are elected only by other hereditary Peers, will be limited. They would, in a sense, lose some credibility. I should much prefer them to be seen, if you like, as concessionary Peers rather than as representative Peers. What we have to do is to wait and see whether the noble and learned Lord the Lord Chancellor might be prepared to reveal the way in which this all emerged during the discussions that he had with my noble friend Lord Cranborne when this, in my opinion, extremely good compromise was reached. Even if it was not part of the original negotiations, there is a strong case for extending the franchise, if only to give more credibility to the outside world for the compromise itself.

Lord Davies of Coity

My Lords, I wonder whether we are not making somewhat of a mystery out of this compromise. We should bear in mind that the Government put forward a Bill based on their manifesto commitment and then, for very pragmatic political reasons, accepted a compromise that was put forward in order to retain a certain number of hereditary Peers. That was based on a formula which will enable the Oppostion to have so many, the Government to have so many and, indeed, the Liberal Democrats and the Cross-Benchers to have so many.

We are making a lot of heavy weather about the formula. Once this compromise was accepted, the fact remains that each of the bodies concerned was entitled to elect its own representative numbers in order to keep a measure of stability through the transitional period of this House. We are going well overboard if we try to elaborate on the issue and make something out of it which does not really exist. Therefore, I think that this amendment should be withdrawn.

The Earl of Errol

My Lords, I do not mind at all who the electorate is for the first set of Peers who stay here. I think that there are logical arguments on both Sides. However, it would concern me if it were used as a precedent, because I feel that this transitional Chamber could well last longer than many people hope. If we have to start having an electoral system for electing hereditaries in, say, 20 years' time, it would worry me if the notion that life Peers—appointed and nominated Peers—should elect the hereditaries was used as a precedent. Again, we would have the influence of the nominating authority coming in indirectly. That would be very dangerous because they would probably pick the most amenable and the quietest hereditary Peers so that they would not stir things up. The whole purpose of leaving hereditary Peers here is to leave a difficult rump of people who will ensure that there is some independence in Parliament.

Lord Newby

My Lords, I am grateful to the noble Lord, Lord Willoughby de Broke, for introducing this amendment. Like every other issue that we have debated today, this is something that we have discussed at some length before, albeit on the basis of a slightly different amendment. I am not sure that these would be exactly the words that we would have put in an amendment on the point, but I find the arguments advanced by the noble Lord, and those advanced by the noble Viscount, Lord Bledisloe, in terms of ensuring that we get the best people judged by the largest number of their peers remaining under the Weatherill amendment, to be compelling.

Equally, we on these Benches are not of the view that the concept of representative hereditaries is one that we would wish to support. That is exactly the debate that we had in Committee. The noble and learned Lord the Lord Chancellor explained then that, under the Weatherill compromise, the concept of representative hereditary Peers had been accepted by the Government. We found that to be a depressing concept and we disagreed with the principle that lies behind it. We obviously accept that this is a matter not to be determined primarily at this stage and on the face of the Bill. Indeed, it is something which the Procedure Committee will want to consider.

However, when the Procedure Committee considers the matter, I hope the Government will adopt a rather more flexible attitude. If the Liberal Democrats, who will have three Members under the Weatherill proposals, feel, as a group, that we would like all of us to elect that number, it seems to me to be unacceptable that we should be told that we cannot do so. There should be scope for us to decide how we elect our three. If the Conservatives believe that their number, how ever many it is, should be elected just by the hereditaries, it seems to us to be entirely reasonable that that should be done. As I say, we will find it unacceptable and unnecessarily prescriptive if the Government seek to impose on us a method of electing our three which we believe to be less satisfactory than another method. When the noble and learned Lord replies, I hope that he will be able to be rather more flexible in the attitude that he adopts towards this issue.

Lord St. John of Bletso

My Lords, I rise to support this amendment although the Procedure Committee is soon to discuss this issue. It appears not just logical but also sensible that the electorate should, comprise both hereditary and life Peers. Clearly the objective of this Bill is to improve the efficacy of your Lordships' House and the objective of the Weatherill amendment was to select—I stress the word "select"—those hereditary Peers who will make the most valuable contribution to the work of your Lordships' House in the interim phase.

I entirely agree with the point made by my noble friend Lord Bledisloe that the Weatherill amendment does not seek to elect hereditary Peers to represent hereditaries. I do not intend to rehearse the many arguments that I am sure will be discussed once the report of the Procedure Committee is debated in your Lordships' House on Third Reading. However, my final point concerns public perception. Surely not just the public but also the Members in the other place—when this Bill is referred back to the other place—would consider it farcical if the hereditary Peers were to be elected purely by hereditaries. For this reason, I believe that the amendment enhances the logic of the Weatherill amendment and deserves the Government's support.

Lord Pearson of Rannoch

My Lords, I too support this amendment because, as other noble Lords have said, if all Peers are to elect those who will be staying, that must make for a more knowledgeable electorate and therefore for better qualified Peers. It seems to me that the trouble with the Weatherill/Cranborne amendment—with or without the somewhat inaccurate allusions of my noble friend Lord Cranborne to White's Club—is that many Peers will be able to vote who hardly ever come here and cannot know who they are voting for. By the same token, I should have thought that some minimum attendance requirement for the electorate would be a good thing because, once again, it would make for a more knowledgeable electorate and therefore far a better quality of Peer to be elected, which I am sure is what we all seek to achieve. As I say, I support the amendment.

Lord Strathclyde

My Lords, an interesting argument is being put forward that hereditary Peers cannot possibly be trusted to select a number of their own to represent them in Parliament. That may be true—but if it is true, then let us say it. Let us say that only the life Peers can give this system any credibility. I find that mildly offensive. I find the thought that my future is to be decided by the life Peers rather odd; I object to it. I should much rather put my future in the hands of my fellow hereditary Peers.

There is an argument that the hereditary Peers will get together; that there will be a "chums' pact"; that they will say "I was at school with you; therefore will you vote for me?" From my experience of people with whom I was at school—I am glad to say that there is no one in the House with whom I was at school—that may be a very negative argument to use. I sense no evidence to suggest that the hereditary peerage is unable to select a number of themselves to represent them in Parliament.

The argument that they will be delegates is absurd. The idea that an elected hereditary Peer will be a delegate of anybody is laughable. Peers are here on their own honour and merits and represent no one. That should continue.

Viscount Bledisloe

My Lords, the noble Lord has just said that he wishes to be chosen to represent the other hereditary Peers. Apparently he prefers to be selected by people who have never seen him perform rather than by the life Peers who have seen him perform. Now, a second later, he says that they would not be representing anyone. He cannot have his cake and eat it. If they are there to represent the other Peers, so be it; but then they are to represent someone. If they are not to represent anyone, they cannot be representative Peers.

Lord Strathclyde

My Lords, I was making the point about being a delegate. I understand that, under the noble Lord's terms, I would be elected by a group of people who would expect me to behave in a particular way. That is my understanding of the point that he was making. I refute that and reject it utterly. Any Peer who is elected by anyone else to come to this House is here to represent himself and to defend the decisions that he takes. The noble Lord's argument about being a delegate must equally be true whether one is elected by a group of hereditary Peers or by the whole House. I reject it as an argument which has no force.

However, the argument that there needs to be some consequential amendments to Clause 3 has some force. Perhaps I may take the opportunity to ask the noble and learned Lord the Lord Chancellor if he can say when the consequential amendments to Clause 3 will be forthcoming, to make up for the deficiency quite correctly pointed out by the noble Viscount, Lord Bledisloe. I hope that we shall have plenty of time to examine them.

Something else is going on here—and I suspect that this is the real motive behind the amendments. It is a motive that I wholly understand; I have heard it many times. I have not heard it this evening, but I have heard it many times in private. The motive is this. "I am a hereditary Peer. I spend a lot of time in this House; I put in a lot of work. My friends are not hereditary Peers; they are life Peers. I wish to continue in this House. Therefore I would much rather that my future were decided by the life Peers than by the hereditary Peers".

We need to have a little more confidence if we are to go into this brave new world. The noble Earl, Lord Erroll, was entirely correct that we should not use this to set a precedent for the future if by some small chance this stage is to continue for some time. Since I believe that there should be a proper and fundamental reform of the House, if it is seen that there is something faintly illegitimate—I do not believe there is—in the hereditary Peers continuing to select a certain number of themselves to represent them in the House of Lords, then perhaps that may hasten stage two, which will be in the interests of Parliament and the people of this country.

I cannot agree with the noble Lord, Lord Newby, that there should not be uniformity and I find it interesting that the Liberal Democrats suggest that there should not be an election—perhaps he did suggest that there should be an election but not just an election of the hereditary Peers.

I have another way. We should ask the Chief Whips and the Convenor to select who they think would be right. That would be a good alternative, except that I have suddenly remembered that I am no longer the Chief Whip, so perhaps the leaders of all the parties who should do it!

I finish where I started. We should have more confidence in ourselves. The hereditary Peers need to get a grip on themselves. They should stick to a system which has been tried and tested in Scotland and in Ireland when the English and the UK Peers did not have a say in those elections.

Midnight

Lord Trefgarne

My Lords, I have no doubt that when the so-called "Weatherill amendment" was being discussed behind the scenes before it became public knowledge, it was intended that the Peers so selected would be representatives—or however one may describe it—of the hereditary peerage as a whole. That was right and it was on that basis that I was persuaded to agree to the Weatherill amendment; namely, that we hereditary Peers would choose 75 of our own number to represent us here in this House. I would be very concerned if the Bill were to be changed so that my original perception was wrong and the 92 would be elected by a much wider electorate, including large numbers of life Peers. That was not the basis on which I was persuaded to agree to the Weatherill amendment. I therefore hope that my noble friend will not press his amendment.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, I believe that I made the Government's position on this matter perfectly clear when we debated this very same issue in Committee. The noble Lord has now removed his earlier minimum attendance qualification for Members of the House to be eligible to vote for excepted Peers. But the key question remains the same: should life Peers be allowed to vote in the Weatherill elections?

I can do no more than repeat what I said in Committee when I was describing the agreement that has been made. It has consistently been made clear—I repeat that to the noble Lord: I do not know how often I need to say it for him to hear it—that the elections for the 75 within the party and other groups will be of hereditaries, by hereditaries and for hereditaries. As has been said many times, the election of the 15 is a different matter as they are to be elected to stand ready to serve the whole House as office holders. It is therefore wholly logical that all Members of the House should be allowed a say in choosing them.

The amendment also conflicts with the Weatherill proposal because it allows every Member of the House to vote for each individual excepted Peer so that there would be no distinctive electorates, according to party or Cross-Bench affiliation, to choose the allotted number of excepted Peers in each of the four main groupings. As the amendment acknowledges, this is not a matter for the face of the Bill but for Standing Orders; and for the reasons given, we may have to debate this further.

I can only repeat that the relevant electorates as envisaged under the terms of the agreement underlying the Weatherill amendment are provided for in the Standing Order as presently drafted. To include this provision on the face of the Bill would be a clear breach of that agreement. For my part, and for the Government's, we intend to honour the agreement. We therefore cannot accept this amendment.

Viscount Bledisloe

My Lords, before the noble and learned Lord sits down, he says that it has consistently been made clear that the election is to be by hereditaries and for hereditaries. By whom has it consistently been made so clear, and when, and where?

The Lord Chancellor

My Lords, on every occasion when this matter has previously been considered in this House, it has been made clear both by myself and, as I recall, the noble Viscount, Lord Cranborne. All that we are doing is reporting the terms of an agreement. None of the parties to the agreement is disputing it. I do not see how the noble Viscount can dispute it.

Lord Willoughby de Broke

My Lords, I am grateful to all noble Lords who have spoken in this debate. It seems that there is interest in this proposal. I apologise to the noble and learned Lord the Lord Chancellor and to my noble friend Lord Strathclyde. I obviously did not make myself clear on a couple of points. Perhaps I may elucidate them now.

First, I attempted to say that my amendment did not seek to overturn the party arrangements that were agreed so that each party and the Cross-Benchers would continue to elect their own Peers as was set out in the Weatherill amendment. It is simply that I believe it is much better that they should be elected by all Peers, not simply by hereditary Peers.

I am grateful to the noble Viscount, Lord Bledisloe, for his intervention. It is also abundantly clear that there are widely differing views on this matter. We have heard that from all sides of the House—from the noble and learned Lord and from Members on his own Benches, from the Liberal Democrats, from my own side, and from the Cross-Benches. So there may be abundant clarity between certain parties in the House, but it is by no means uniform. It is a perfectly valid point to debate. I hope that the Procedure Committee will take the points that have been made during the course of the debate and will consider them.

I was also surprised by the remarks of my noble friend Lord Strathclyde. He seemed determined to misunderstand what I said. There was absolutely no question that hereditary Peers should be elected only by life Peers. I made it perfectly clear that they should be elected by the whole House. That would be an improvement. The noble Lord did not seem to understand that and purposely put words into my mouth that I did not utter.

My point was accepted by the noble Lord, Lord Desai, and I am grateful for that. The noble Lord, Lord Davies, simply said, "Let's leave well enough alone. We do not want to fiddle with it". However, I am rather surprised, in view of the fact that he would have the opportunity to vote for his own hereditaries and is not going to take the chance. Of course, that is his choice.

As I said, I do not intend to press this matter to a Division. I am glad to have had the opportunity to hear the discussions. They have been valuable. I remain disappointed with the reactions of my own Front Bench. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

Viscount Mountgarret had given notice of his intention to move manuscript Amendment No 16A: Page 1, line 9, leave out ("90") and insert ("165")

The noble Viscount said: My Lords, I ask forgiveness of the House and the noble and learned Lord the Lord Chancellor, as I recognise that to table manuscript amendments hurriedly on matters of this nature can be rather irritating and that it does not give the Government much of a chance to think about them. Perhaps I may say in self-defence that I noted from the Marshalled List that I received at home in the North of England that the amendment tabled by the noble Lord, Lord Coleraine, was new, or had been altered. I felt that there was a need to press him on the figures that he arrived at. Following the Weatherill amendment, the amendment does not seem to have been tabled at Committee stage. As a result of that, Amendment No. 20 et al rather drives this amendment as it presently stands. I believe that it would be impolite and discourteous to the noble Lord, Lord Coleraine, to pre-empt the substance of his remarks. With the leave of the House, I should like first to listen to what he has to say and then speak to Amendment No. 20, which drives Amendment No. 16. If that is accepted, at this stage I shall not move Amendment No. 16A.

[Manuscript Amendment No. 16A not moved.]

[Amendment No. 17 not moved.]

The Chairman of Committees (Lord Boston of Faversham)

My Lords, I must apologise to the noble Earl, Lord Erroll, for the fact that his name is spelt wrongly in the Marshalled List.

The Earl of Erroll moved Amendment No. 18: Page 1, line 10, after ("Marshal") insert ("of England")

The noble Earl said: My Lords, I thank the noble Lord for that apology. I note that Hansard also mis-spelt my name at the time that the noble Duke, the Duke of Montrose, made reference to me when I was unable to attend on re-commitment.

Amendment No. 18 is just a drafting amendment and in many ways is not a big matter. I am very concerned that an Act of Parliament may come into being that does not accord the proper title and dignity to two of England's most respected offices of state. In all commissions and other documents that have passed the Great Seal of England these two offices are addressed by their lawful and correct titles. Therefore, I am concerned because in this most solemn document they are not accorded their proper titles.

If we consider the roll of the Lords, we see that it makes reference to, Norfolk, Miles Francis Duke of (Earl Marshal of England)".

If we look at the Home Office memorandum of 1906, reference is made to the Earl Marshal of England, where it will be observed that, by the terms of the Patent, the office is that of Earl Marshal of England only, and no change is effected in its powers at the Union either of the Kingdoms of England and Scotland or of Great Britain and Ireland. It is clear that reference is there made to the Earl Marshal of England.

Next, we see that the Committee for Privileges of the House of Lords considered claims for the office of the Lord Great Chamberlain of England in January 1902. If we consider the supplement to the London Gazette of 1911 for the coronation, we see that, in order, the great hereditary offices of state by the Sword of State next to the King are: the Earl Marshal of England, the Great Steward of Scotland, the Lord High Steward of Ireland, the High Constable of Scotland and the Lord Great Chamberlain of England, who comes last. It is quite clear that they have territorial designations, and those are the correct and lawful titles by which they should be referred to.

Further, the office of Earl Marshal of Scotland is subject to attainder. The appropriate heir male of the body of the first Earl Marshal could submit a claim to reverse that attainder. Attainders have historically been reversed. I am told that it is not the policy of the Government to continue to reverse attainders, but I do not believe that it is correct for the Government to try to bind a future Parliament by making it more difficult to reverse the attainder by having only the title of Earl Marshal in this Bill and not putting in the correct title of Earl Marshal of England. I believe that that could cause complications in future.

I have two questions. First, do the Government agree that the lawful and correct titles are those of Earl Marshal of England and Lord Great Chamberlain of England? The noble and learned Lord may need to resort to Pepper v. Hart yet again should this matter be challenged in the courts, and therefore perhaps he should assert the point publicly. Secondly, do the Government agree that the jurisdiction lies solely within England, or is this a quiet effort by the Earl Marshal via the UK Parliament to annex Scotland and Ireland?

Amendments Nos. 18 and 19 do not affect the Government's part of the Bill but only the amendment inserted by the noble Lord, Lord Weatherill, and I do not see how they can cause the Government a problem. I beg to move.

12.15 a.m.

The Duke of Montrose

My Lords, I support the noble Earl, Lord Erroll, on these amendments which are similar to those I introduced on recommitment. When I spoke to those amendments, I received a gracious reply from the noble Lord, Lord Williams of Mostyn. It is a great comfort to hear from the Benches opposite a spokesman with such a good grasp of Scottish titles and genealogy and—dare I say?—as a Welshman possibly a great understanding of the sensibilities of the history of some of our more remote areas. As a footnote, perhaps I may add that I thought I detected a nice little genuflexion to the hereditary principle in that he believed that he had learnt some of this from his father.

I do not wish to bore your Lordships by repeating my remarks on the previous discussion. However, I pointed out that the office of the Lord Great Chamberlain of Scotland was resigned into the hands of the sovereign in 1706. But, having made inquiries, the nub of the argument I made rests on the fact that there is still, as always, a Scottish office. It was revived by a sovereign of the United Kingdom; namely Queen Anne in 1711. It is therefore perfectly capable of being further revived.

As regards the office of Earl Marshal of Scotland, the procedures required have been explained to us by the noble Earl, Lord Erroll. I do not need to go into them. However, those arguments are all concerned with the possible confusion which hereditary Officers of State of Scotland might introduce into the Bill unless Amendments Nos. 18 and 19 are adopted.

I hesitate to enter the field of lawyers. As a lay person I often use different ways of describing the same thing or the same person. But that is not the way of lawyers. However, the other argument is that in any Act of Parliament, which is a most solemn instrument, the description of an office should reflect the description contained in the Letters Patent of the sovereign creating the office. In the case of the Earl Marshal of England, I have been given a copy of the Letters Patent—I have them here—from 1672 granting that office. They are in Latin; I shall not attempt to pronounce them. However, they state clearly that the office is that of the Earl Marshal of England. They were followed by a petition in February 1732 by the then Duke of Norfolk describing himself in the instance of that petition as the Earl Marshal of England.

I cannot at present go back that far with the office of the Lord Great Chamberlain of England, but noble Lords will be aware that there are two volumes of proceedings of the Committee for Privileges beginning in 1901 and continuing to 1902, no doubt presided over by the predecessor of the great office now occupied by the noble and learned Lord the Lord Chancellor which was the office described throughout as the Lord Great Chamberlain of England.

I believe that these arguments support the need for the amendments to be agreed to.

The Earl of Kintore

My Lords, for a number of centuries before the 1707 Act of Union, the honour of Earl Marshal of Scotland rested with my family. Despite our Jacobite indiscretions of the '15, the '19 and the '45, we retained it until 1746, when we were attainted. The tenth and last Earl Marshal and his brother had to go abroad.

I feel therefore that the honour is now vacant in Scotland and does not attach to the noble Duke, the Duke of Norfolk.

Lord Strathclyde

My Lords, perhaps I may be allowed a brief word. In Committee, the noble Lord, Williams of Mostyn, said that his advice was that there was no ambiguity in the Bill. With respect to his advisers, no one who heard the immensely authoritative speech of my noble friend the Duke of Montrose on that occasion could assert that with any confidence.

This Bill may well have to last and it would be right as a courtesy to the knowledge of my noble friend, and to the history and traditions of England and Scotland, and no disservice to the Bill, to accept the amendment to which the noble Earl has given his authoritative support. I very much hope that the Government will have the good grace to accept it.

Lord Williams of Mostyn

My Lords, when we last discussed these matters, the noble Duke, the Duke of Montrose, had cast his net much wider and had included the Lord Great Chamberlain of Scotland as someone whose interests should be considered. We had an interesting discussion about Sir fain Moncreiffe of that Ilk being 28th hereditary Lord Chamberlain in the absence of the noble Earl who moved the amendment.

The purpose of the amendment is to put beyond doubt the identity of the accepted Peer office holders, Earl Marshal and Lord Great Chamberlain of England, on the basis of the Weatherill compromise. There is no doubt—

The Earl of Erroll

My Lords, it is not to put the matter beyond doubt. We are not in doubt as a result of the Minister's previous comments. It is in order to accord them their correct and lawful titles.

Lord Williams of Mostyn

My Lords, I am grateful for that intervention, which is most helpful. If there is no doubt, there is no need for these amendments. They can be referred to properly and correctly in alternative ways. There are two references in other legislation to the Earl Marshal, only one of which contains the words "of England". That is Section 4, as your Lordships will readily recall, of the House of Lords Precedents Act 1539. From recollection—

The Earl of Erroll

My Lords, that was when England was England and Scotland was not part of the United Kingdom, so the reference could have been only to one Earl Marshal. I cannot believe that that Act referred to Scotland.

Lord Williams of Mostyn

My Lords, since it is necessarily 1539 followed by 1707, and there could not have been any ambiguity or difficulty, the words "of England" would not have been necessary at all in that context.

The question is: do we need to alter this Bill? I am the last person here not to have a consciousness of different traditions. I am grateful to accept what the noble Duke said about my experience in Wales, although I do not accept that either Scotland or Wales are remote parts of the United Kingdom and certainly not backward. The amendments are not incorrect, but they are not necessary and they are not of any real substance in the context of this Bill. They cannot affect precedence in Scotland, which is important; they have no relevance as to whether or not an attainder could be overturned; it is not a question of whether they are lawful or correct but of whether they are required in this Bill.

There is no possibility of the Earl Marshal (of England) attempting to impose or extend his jurisdiction to Scotland. I know that these are important historical matters and they are important matters of description and precedence in Scotland, but they do not bite upon the content of this Bill. Therefore, not being unsympathetic—I genuinely find these issues of interest—they are not of relevance in the context of this Bill.

The Duke of Montrose

My Lords, before the Minister sits down, perhaps I may explain that we are not trying to extend the influence of the Earl Marshal of England. It is simply that if someone claims the title of Earl Marshal of Scotland there will be two Earl Marshals. There is no indication which one is referred to in the Bill.

Lord Williams of Mostyn

My Lords, the noble Duke entirely mistakes my point. My reference to jurisdiction was in specific reference to the noble Earl's point, which was that unless one had the description in this Bill "Earl Marshal of England", there might be the prospect that the Earl Marshal of England might try to extend his jurisdiction to Scotland. My response was to the noble Earl's specific point that this description, or non-description, in the Bill would have no relevance in that context.

Everyone, with or without Pepper, or Hart, or both, knows perfectly well what is referred to. It is otiose, though of historic and heraldic interest, that they be included in the Bill, but this is not a vehicle for the protection of historic heraldic interests, which are rot impeached, impugned or attacked in the slightest way in this Bill.

The Earl of Erroll

My Lords, I do not know what to do. I find it quite ridiculous. I presume, therefore, we will now see the references to "of England" removed from the Roll of the House of Lords and "of England" removed from all future references to these hereditary great officers of state.

I find it quite incredible that the Government cannot get it right. This is not even in the words of their own Bill, which they produced from the Commons, but in an amendment inserted by Cross-Benchers and by agreement, so it does not even affect the position of the Government. I hear other words used strangely in this regard. People keep referring to the fact that I am "illegitimate" when I am quite legitimate here. What might be illegitimate is the fact that the wrong titles are used for two of the great officers of state. That is far more illegitimate than perhaps the fact that I may not be democratically representative which is what is normally meant when the world "illegitimate" is used to refer to me.

I know that sounds rather muddled. However, I do not suppose that, with the number of Government troops sitting behind the Front Bench, it is worth calling a Division. On the other hand, I feel for the sake of the Scots that I should.

Lord Marlesford

My Lords, before the noble Earl sits down or withdraws the amendment, I find it strange that the Government are not prepared to accept the amendment. Let us suppose that by chance a spelling mistake had crept into the Bill. It would be perfectly legitimate to say that there is no ambiguity, no confusion, that it does not really matter; yet I cannot believe that a spelling mistake would not be perfectly happily corrected. What is the problem with being accurate in legislation?

Lord Williams of Mostyn

My Lords, the legislation is not inaccurate; nor is it ungrammatical. The only grammatical errors that I have detected have been, on occasion, in amendments moved by some noble Lords on the Benches opposite, although I have not pointed them out on every possible occasion.

It is not a question of what is correct or incorrect. Both are correct, as Alice said, or should have said. There is no ambiguity and therefore one does not need to amend the Bill. However, I stress that it has nothing at all to do with attainders, possible revivers, historic precedence or anything to do with heraldry in Scotland. It is absolutely correct to say that it is of validity to say "The Earl Marshal" or "The Earl Marshal of England". We have chosen the phrase which is well known. Both the noble Duke and the noble Earl readily recognise this. There is no difficulty of understanding. There are alternatives. We have chosen the simpler and shorter, knowing that they would irresistibly, on those two grounds alone, commend themselves to your Lordships.

Viscount Mountgarret

My Lords, in order to help my noble friend on what he may or may not do about this, I would rather like to know the views of the noble Earl the Earl Marshal and the noble Lord the Lord Great Chamberlain. It may be relevant and helpful to know that. I certainly would not know which way to go if this was pressed to a Division. I take the point made by the noble Lord, Lord Marlesford. However, I see that the ambiguity is not perhaps as great as is made out. I think we should find out what the noble Earl the Earl Marshal has to say about this.

The Earl of Erroll

My Lords, I thank noble Lords for their interventions. I find it absolutely astonishing that we do not even try to get legislation accurate any more. I am afraid to say that I know that if I was to go to any of the proper legal authorities—forget about heraldic; this has nothing to do with heraldry; one is the Earl Marshal "of England" and the other is the Lord Great Chamberlain "of England"—there would be no two ways about it. To describe them as anything else is inaccurate and illegitimate. That is the illegitimacy. However, I shall not win a Division so there is no point in pressing it. It is quite late enough. I find it astonishing that we try to pass laws like this in which we are historically inaccurate. However, with those comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Lord Coleraine had given notice of his intention to move Amendment No. 20:

Page 1, line 12, at end insert—

("() Standing orders of the House shall provide that the excepted hereditary peers shall consist of the following categories—

1. (a)(i) 2 peers elected by Labour hereditary peers;
2. (ii) 42 peers elected by the Conservative hereditary peers;
3. (iii) 3 peers elected by the Liberal Democrat hereditary peers; and
4. (iv) 28 peers elected by the Cross-bench hereditary peers;
5. (b) 15 peers, elected by the whole House, from among those ready to serve as Deputy Speakers or in any other office as the House may require; and
6. (c) any peer holding the office of Earl Marshal or performing the office of Lord Great Chamberlain.")

The noble Lord said: My Lords, this is the last amendment tonight. Since I tabled it, I have been advised that in some respects it is defective. I propose to take it away, reconsider it and possibly bring it back at a later stage.

[Amendment No. 20 not moved.]

[Amendments Nos. 20A to 20D as manuscript amendments to Amendment No. 20 not moved.]

Lord Carter

My Lords, I beg to move that further consideration on Report be now adjourned.

House adjourned at half past midnight.