Magazine article The Spectator

A Fundamental Howler from the Unpredictable Derry Irvine

Magazine article The Spectator

A Fundamental Howler from the Unpredictable Derry Irvine

Article excerpt

The Committee for Privileges of the House of Lords is not usually a forum for controversy. It normally meets to deliberate the arcana of peerage succession. But it is currently considering the succession question in a more basic sense: a final challenge has been issued to the government's legislation on House of Lords reform. If it succeeds, the entire process will be stymied; the government might be unable to proceed except by a new Bill. If it should fail, then in about a month from now, 800 years of history will be swept into the dustbin.

Even those who believe in House of Lords reform might also think it odd that the government should be forcing through this Bill two months before John Wakeham's commission is due to report. If it was worth appointing Lord Wakeham, it was surely worth waiting to see what he had to say.

The Privileges challenge turns on points of law, and the case will be decided by the three Law Lords who will sit on the Committee. Its other members will add weight and ceremony, but not, on this occasion, substance. Even though the judges will take the decision, however, the legal points at issue are within a layman's grasp.

The first concerns Scotland. The Act of Union of 1707 entrenched Scottish representation in both Houses at Westminster, and in the case of the Lords there were to be 16 representatives of the pre-1707 Scottish peerage. Since the late 1950s, all Scottish peers have been entitled to sit in the Lords, but that does not negate the guarantee contained in the Act of Union.

As Britain does not have a codified constitution, it could be argued that one Act of Parliament is as good as another and that there is nothing to prevent a new Bill from intruding on the Act of Union. But a small number of Acts of Parliament, such as the Act of Union and the Bill of Rights of 1689, have always been accorded the status of fundamental legislation, not lightly to be overridden.

The government could claim that its devolution legislation has already modified the Act of Union. But interestingly enough, though admittedly for reasons of political expediency in that they did not wish to abolish Scottish Labour constituencies, ministers did not address the matter of Scottish representation in the Commons. Now that there is once more a Scottish Parliament, the guarantees in the Act of Union - which have in practice always ensured that Scotland is overrepresented in the Lower House - might be thought to require modification. That would necessitate an explicit amendment to the Act of Union. But so should any move to restrict the rights of the Scottish peers, especially as the new Scottish Parliament, unlike its predecessor, has no upper chamber.

The second principal point at issue concerns the writ of summons. It is widely assumed that any hereditary peer is entitled to sit in the House of Lords. Not so; he or she is merely entitled to a writ of summons bidding them to sit in the House of Lords. Once issued, that writ lasts for life.

It would have been easy enough for the government to overcome that point. It would only have required a single clause in the current Bill, stating that as soon as it became law, writs of summons would have no further validity. But there is no such clause. Instead, the government claims in its submission to the Committee that writs of summons have no legal effect. That would appear to be nonsense: 'a fundamental howler' as one disinterested Lords official has described it in private. A peer requires his writ of summons just as a member of Parliament requires his returning officer to certify that he has been duly elected. …

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