House of Lords (Hereditary Peers) Bill

Baroness Browning Excerpts

Report stage
Wednesday 9th July 2025 Lords Chamber

[Lord Ashton of Hyde (Non-Afl)]

My Lords, in Committee, it was pretty much acknowledged that this amendment addressed a genuine problem and that the House as a whole would benefit from a solution. That problem, in a nutshell, is that the House of Lords Reform Act 2014 clearly states that a notice of resignation

“must … be signed by the peer and by a witness”.

Therefore, if a Peer has lost mental capacity and the Clerk of the Parliaments does not feel able to accept an attorney’s signature, there could be the perverse situation where a Peer’s attorney could arrange medical care or sell a Peer’s house but could not submit a notice of resignation on their behalf, thus leaving that Peer free to speak or vote in the House when they really should not. This is undignified for the Peer and bad for the reputation of the House.

Amendment 16 would amend the House of Lords Reform Act 2014 to allow a person holding a lasting power of attorney to sign a letter of resignation on a Peer’s behalf. Following the debate in Committee, I do not think the intention is controversial and I will not spend more time on it.

I thank the Leader of the House and the Clerk of the Parliaments separately for spending time with me to discuss this amendment. The Leader has done what she said she would do in Committee and has, together with the Clerk of the Parliaments, come up with a solution—the issue is whether it is the best one. In the decade or so since the passing of the 2014 Act, the Clerk of the Parliaments and his predecessors have accepted legal advice that it would not be lawful to accept a notice of resignation by a Peer’s agent or attorney. The Leader recently commissioned further advice from the Government Legal Department, which I am informed admits that there are good arguments on both sides but now advises that an attorney may submit a notice of resignation on behalf of a Peer.

Armed with the new government lawyers’ advice but conscious of the good arguments on both sides, the Clerk of the Parliaments has changed his mind and said that he is now prepared to accept the legal risk of accepting a resignation from an attorney, subject to certain safeguards. I emphasise that the unfortunate Clerk of the Parliaments is only implementing a system that we have created but is forced to take the legal risk by accepting the new advice instead of the previous advice. He may later be found to be correct in accepting the advice or he may not.

What would happen if a successor Clerk of the Parliaments disagreed with his interpretation of the advice? What would happen if a court found that the advice was incorrect? Why should we leave the Clerk of the Parliaments to bear the risk that we have created? Surely it would be better if we made the situation clear by amending the 2014 Act in the way the amendment suggests. The Government are already amending that Act in Clause 3(4).

As we all know, legislative time is at a premium, so adopting the amendment is a perfect opportunity for this House to do its duty to revise legislation and remove doubt. In the words of the Leader of the House when she was Leader of the Opposition,

“there is an obligation on us to do what we can to improve legislation. That is our role”.—[Official Report, 31/1/23; col. 636.]

[Baroness Browning (Con)]

Before my noble friend sits down, I fully understand why he is suggesting this and I have a lot of sympathy with it, but, for clarity, I would like to know about a detail in his discussions with the Clerk of the Parliaments. For the attorney to exercise an attorney’s power, they would have to make sure that the person they were representing had lost capacity. What steps have been included to assess that capacity? I served on the Mental Capacity Act committee for many years, and under the Act there is a procedure to assess someone’s capacity. Particularly in respect of very elderly people, sometimes people are deemed to have lost capacity when in fact they are suffering from things like urinary tract infections. For that power to be exercised legally, what has my noble friend agreed will be the way in which capacity is legally assessed?

[Lord Ashton of Hyde (Non-Afl)]

As far as I understand it, the Mental Capacity Act 2005 says that an attorney established under a lasting power of attorney must think about the code of practice within that Bill when they make decisions on the other person’s behalf, so they are under a duty to abide by the code of practice that is contained within that Bill.

[Baroness Browning (Con)]

Forgive me, but within that code of practice is a clear code of conduct for how capacity is assessed and by whom. There should be an assumption of capacity before that process starts.

[Lord Ashton of Hyde (Non-Afl)]

Exactly. The attorney under a lasting power of attorney has duties. If he or she was exercising that duty within the realm of the Act, they would be acting lawfully, and they would establish capacity using the advice that is contained in the code of practice. I beg to move.