It started five days after Lord Stansgate died. On 22 November 1960, Benn, Member of Parliament for Bristol South-East since 1950, signed an instrument of Renunciation of his Peerage and returned the Letters Patent to Buckingham Palace. On 29 November he petitioned the House of Commons, putting forward reasons why disqualification on account of the peerage should not attach and praying that a Select Committee be appointed to consider the issue.
The question was referred by the House to its Committee of Privileges whose 12 members included Rab Butler, the then Leader of the House and Hugh Gaitskell, Leader of the Labour Opposition. The Committee reported on 14 March 1961. It found that Benn was disqualified on 17 November, the day his father died, by succession to the title and that his Instrument of Renunciation had no legal effect. (“A peer cannot surrender or renounce his peerage” (para.29(b)).)
About half of the printed evidence attached to the Committee’s report dealt with the question whether it was bound by previous decisions of Committees of either House. Upon this question, the Committee of Privileges reached the conclusion that although the relevant law was “not to be found in any statute nor in decisions of the courts” and although the decisions of committees of either House were not binding “in the sense in which a judgment of a court of law is binding on an inferior court”, nevertheless the precedents created “settled law” that a peerage could not be renounced.
The Report of the Committee of Privileges was considered on 13 April 1961. The House, with the whips on, took three hours to decide that Benn should not be allowed to speak (221-152) and another three and a half hours to adopt the Committee’s Report that he ceased to be a member on 17 November 1960 (207-143).
A writ was moved for a by-election in Bristol South-East. With the official backing of the Labour Party, Benn stood as the Party’s candidate and on 4 May he was elected with a hugely increased majority. He had the editorial support of every national newspaper from The Times to The Daily Worker and according to a Gallup Poll, the support of 70% of the general public with only 10% actually opposed. On 8 May he duly presented himself at the House of Commons to take his seat but, on the Speaker’s orders, he was prevented from entering the Chamber. After a two-hour debate, the House, again with the whips on, upheld the Speaker’s decision “that he not be permitted to enter the Chamber” (254-160).
On the same day, Benn’s defeated Conservative opponent, Mr Malcolm St Clair, lodged an Election Petition with the Queen’s Bench Division to have him declared to be disqualified. The hearing in front of the two QB judges, Gorman and McNair JJ, sitting as the Election Court, began on 10 July. In the intervening two months Benn and I prepared his argument. For those weeks, with special permission from the Speaker, I worked mainly in the library of the House of Commons delving into dozens of peerage cases going back hundreds of years, whilst we assessed how best to present the case. Ashursts generously made me available full-time, in the event charging only a nominal £1,000.
The argument we eventually decided to present to the Election Court was based on three propositions: (i) disqualification from the Commons could only be based on incompatible duties in the Lords, (ii) attendance in the Lords required a Writ of Summons issued by the Monarch; and (iii) a Writ of Summons could only be issued on request. Ergo, if a peer did not apply for a Writ of Summons there was no incompatible duty justifying disqualification from the Commons.
On 9 July, a Sunday, with TV and newspaper cameramen in attendance, Mr Benn and I together with his two young sons, Stephen and Hilary, moved 98 tomes from the House of Commons Library to the courtroom, to which we had been given special access. Each volume was labelled and marked under an elaborate card-index system he had constructed. The Sunday Times that morning had written: “An articled clerk and a layman take on two eminent silks. When the two teams turn out tomorrow there will be a distinct impression of Gentlemen v Players.”
Litigant in person
Against my advice and that of several eminent Labour QCs, Benn had decided to present his own case. He had never been in a court before and had no legal training. I was the more concerned that he did not seem to me to be spending as much time on the preparation of the argument as I thought it needed.
My worries proved groundless. By the end of the 10-day hearing he had been on his feet for 22 hours. The transcript shows that he dealt with some 650 interventions and questions from the bench. He never put a foot wrong. He was never at a loss for an answer, couched in exactly the right, wholly professional, style. It was an impeccable, astonishing performance. The judges referred in their judgment to “the magnificent way he had presented his case”.
The argument for the petitioner was put by Sir Andrew Clark QC, a fashionable silk. His contention was that a peer was disqualified on succession to the title regardless of whether a Writ of Summons had been issued. The Crown could not refuse to issue him with a Writ of Summons. The entitlement to a seat, place and voice in the House of Lords was incompatible with the office of being an elected representative in the Commons. Upon succession a peer was bound to serve the state in the House of Lords, a duty that was incompatible with service in the Commons.
Benn had to persuade the court that the existing precedents, none of which were binding on the Election Court, could be set aside for failing to take account of the legal and constitutional position of the Lords, the Crown and the electorate. To expel a peer from the Commons because he had the right to request a Writ of Summons to the Lords was to punish the peer and his constituents for something he had not yet done. The answer to the argument that he had a duty to serve in the Lords was that there was no case in the previous 500 years of the issue of the writ, save upon the application by the heir to the title. Garter King of Arms’ Roll listed some 40 peerages in respect of which no claim to a writ of summons had ever been made. Since 1955, House of Lords Standing Orders said that a peer who did not reply to the Lord Chancellor’s enquiry about their intention was deemed to have applied for leave of absence and that they were then expected not to come to the House. The suggestion that there was a duty to serve in the Lords was clearly incorrect.
Balancing incompatible duties
The concept of peerage was one of privilege that could, but need not, be exercised. Someone who had been elected to serve in the House of Commons had infinitely more burdensome responsibilities than someone who had the right to serve in the Lords. If it came to a balancing of two incompatible duties, Benn urged the court to take account of the realities of the political situation, which at least since 1911 recognised the Commons as the dominant Chamber.
If, as Sir Andrew Clark argued, it was the mere fact of succession that explained the disqualification of a peer, Benn argued that it was constitutionally as improper for the Commons to judge whether he had succeeded to the title, as it would be for it to judge that he was a lunatic, a bankrupt or a criminal. The prerogative of determining succession to a peerage lay only with the Crown on an application for a writ of summons.
For the Commons the writ of summons represented the imposition of an incompatible duty without which there was no reason to disqualify; for the Lords it represented the ticket of admission; for the Crown it represented proof of succession.
There was a general assumption that Benn was bound to lose. But, as the legal argument went on, day after day, the word went around that there seemed to be a possibility that he could win. We were clear that the court had been provided with more than enough material on which to base a decision upholding his arguments. But we were also clear that such a decision probably required bolder judges than Gorman and McNair. Though disappointed we were therefore not surprised when on July 28 1961 they found that Benn was disqualified, that the votes cast for him in the by-election had therefore been thrown away and “that Mr Malcolm St Clair was duly elected at the said election”. (46 pages in the law report: In Re Bristol South East Parliamentary Election  2 QB 257.)
The Macmillan Government eventually decided to deal with the issue–to enable Lords Hailsham and Home to renounce their peerages. On 31 July 1963, shortly after 6pm, the Peerage Act 1963, allowing renunciation of peerages became law. At 6.22pm Benn became the first peer to renounce his title. Honourably fulfilling a promise he had made at the time of his election, Malcolm St Clair then accepted the office of Steward of the Manor of Northstead, thereby disqualifying himself from the House. After winning the resulting by-election in Bristol South-East, Benn returned to the Commons on 20 August 1963.
He served in the Commons for another 38 years, retiring in 2001, as he famously said, “to devote more time to politics”.
An edited version of this article first appeared in New Law Journal (www.newlawjournal.co.uk).