Lord Mackay of Clashfern rules OK

I have now started reading the House of Lords Privileges Committee report on the conduct of the four Members of the House.  Actually, there are two reports and it is the first that I have been through so far (I will probably save the 540 or so pages of the main report on conduct and the associated evidence until tomorrow).  The first report is on “The Powers of the House of Lords in respect of its Members” and its broad conclusion is that the House does not have the power to exclude a Member permanently but can suspend a Member for a period during the remaining life of this Parliament.

This may not sound like a very Earth-shattering conclusion, but it turns out not to be as straightforward as one might think.  The question turns on what powers the House of Lords already has, whether a House of Parliament can take extra powers upon itself without primary legislation and whether the House’s rules can over-ride the Monarch’s Writ of Summons to a Member.

What is interesting is that the Committee first took advice form the Attorney General, Baroness Patricia Scotland, the senior legal advisor to the Government.  However, when she concluded that the House did NOT have the power to suspend a Member, but could merely resolve to invite a Member to take “leave of absence” for a specified time, the Committee asked one of its members, the former Conservative Lord Chancellor, Lord Mackay of Clashfern, to give a second opinion.  When he gave his view that the House DID have the power to suspend, the Committee decided unanimously to accept his advice rather than that of the Attorney General.

The whole issue rests on the mystical significance of the Writ of Summons from the Queen, which each Member receives on first being appointed to the House and then on each occasion a new Parliament is called (ie after each General Election).  This was a big issue at the time of the House of Lords reform when all but 92 hereditary peers lost the right to sit in Parliament.  Could an Act of Parliament over-ride the Monarch’s Summons?  Parliament (and the Courts) eventually concluded that yes it could.

Intriguingly, according to John Wells in his book “The House of Lords“, this same issue was tested by Lord Tom Taylor (one of the four Members who are the subject of the other Privileges Committee report).  According to page xiv in the paperback edition I have, Tom Taylor “argued in the early 1980s that insanity should not prevent peers from attending”.  The book goes on: “He himself had been detained in a psychiatric hospital, where his wife would have preferred him to stay, but he secured his release by claiming parliamentary privilege and made his way back to Westminster.”

Patricia Scotland took her argument back to 1705 when both Houses of Parliament agreed that “neither House of Parliament hath power, by any Vote or Declaration, to create to themselves any new Privilege, that is not warranted by the known Laws and Customs of Parliament.”  She then argued that as the House had never suspended anyone since then to introduce a power of suspension now would indeed be a “new Privilege” contrary to the 1705 decision.

Lord Mackay’s contrary argument was that suspension would not interfere with the Writ of Summons itself.  The Writ of Summons does not confer a right or privilege; it is a command to fulfil a duty (ie attendance at Parliament) and the duty includes an obligation to perform the duty in accordance with the rules of Parliament.  It follows therefore that a breach of those rules is a failure properly to fulfil the duty and suspension might be an appropriate sanction.

Lord Mackay also argues that in any case the power to suspend already existed in 1705 – it had been used on 19th May 1642 when the House resolved that Lord Savile should not sit or vote for the remainder of that session.  Lord Mackay admits that the power has not been used since then, but the House would not be voting itself a “new Privilege” if it decides to suspend one or more Members.

The first thing the House will have to do next Wednesday when it considers the Privileges Committee’s reports will be to decide whether it backs the Mackay view or not (and by implication whether it is rejecting the advice of the Attorney General).  Then assuming the power of suspension is approved, decisions can be made about the two Members who the Committee is suggesting be suspended.  It will be interesting to see whether at that point anyone will raise the point that retrospective penalties are being applied (an issue that normally vexes many Members of the House when it is deemed that a piece of legislation has a retrospective effect).  It may be a long debate.

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