POLITICS

A fundamental howler from the unpredictable Derry Irvine

BRUCE ANDERSON

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 ques- tion in a more basic sense: a final challenge has been issued to the government's legisla- tion on House of Lords reform. If it suc- ceeds, 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 gov- ernment should be forcing through this Bill two months before John Wakeham's com- mission 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 Com- mittee. 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 repre- sentation in both Houses at Westminster, and in the case of the Lords there were to be 16 representatives of the pre-1707 Scot- tish peerage. Since the late 1950s, all Scot- tish peers have been entitled to sit in the Lords, but that does not negate the guaran- tee contained in the Act of Union.

As Britain does not have a codified con- stitution, 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 devo- lution 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 abol- ish Scottish Labour constituencies, ministers did not address the matter of Scottish repre- sentation in the Commons. Now that there is once more a Scottish Parliament, the guar- antees in the Act of Union — which have in

practice always ensured that Scotland is over- represented 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 pre- decessor, has no upper chamber.

The second principal point at issue con- cerns 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 fundamen- tal howler' as one disinterested Lords offi- cial has described it in private. A peer requires his writ of summons just as a mem- ber of Parliament requires his returning officer to certify that he has been duly elected. In that case, how can the writ be said to have no legal effect?

One might well ask why the government committed such a fundamental howler. There is a simple answer: the Lord Chan- cellor. When the writ point was raised in Committee, Derry Irvine dismissed it with scorn. This occurred late in the day, at an hour when his Lordship is often at his most unpredictable. At such moments, he can sometimes go astray. On this occasion, some observers felt that, fired up by the class resentments of his youth — there was an era when Lord Irvine would have claimed to model himself on Red Clydeside rather then on Cardinal Wolsey — he was in no mood to concentrate on legal niceties. Anyway, the government now feels stuck with his arguments, however arrived at.

That has an added piquancy, in that the government's leading counsel in front of the Committee will be Lord Williams of Mostyn. Gareth Williams's debating skills and legal powers command universal respect, not least from himself; modesty is not among his vices. From the beginning of this Parlia- ment, he has — usually discreetly — made

it clear that he believes that he should be Lord Chancellor. But there is already a Lord Chancellor, who has considerable pull with his former Bar pupil, 'young Blair', as Derry Irvine has been known to address the PM. Good temper is not among Lord Irvine's vices: his office can be stressful. So it is a tribute to Gareth Williams's abilities that he has not only survived in govern- ment, but was recently promoted to the Attorney-Generalship.

Gareth Williams's principal opponent will be Michael Beloff, an equally formidable silk, who is also President of Trinity, Oxford. In his final interview before becom- ing head of House, Mr Beloff was asked what he would do if Trinity's accounts sud- denly sprang a leak of two million quid. 'Hmmm,' he replied: 'if that happened, I suppose I'd have to go back to the Bar for a couple of years.' The debate will be of a high standard, and the outcome is unpre- dictable. But the Bill's opponents have one anxiety. As was revealed in the first round of Pinochet hearings, it would be naive to believe that Law Lords always arrive at their judgments on legal grounds alone. Politics can sometimes intrude, and there is a weight of politics behind this Bill.

On this occasion, however, three Law Lords of impeccable integrity have been chosen to sit; curiously enough, they do not include Lord Hoffman of Amnesty. The chairman, Lord Slynn of Hadley, brings another interesting dimension to these pro- ceedings, for Gordon Slynn formerly served as a judge in Europe, and has an interest in human rights. Throughout the civilised world, enfranchisement is now regarded as a basic human right. But if any hereditary peer had voted at the last general election, he would have been committing a criminal offence. He was, therefore, disfranchised in the Commons, in exchange for his member- ship of the Upper House. In that case, the membership ought clearly to last during the whole Parliament for which he was deprived of a democratic vote.

If the disfranchised group were tinkers rather than Tory peers, one suspects that today's judges would have found a legal lever to exert pressure on the executive. As for the peerage, we shall see. But a govern- ment which owes much of its power to a persistent refusal to engage in intellectual argument may find that the highest court operates by different principles.