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Lord Acton: I thank the noble Lord for giving way. If, as the noble Lady, Lady Saltoun, has said, there are 60 Scottish-based life Peers, including three Mackays, does the noble Lord really think that Scotland will be marginalised?
Lord Mackay of Ardbrecknish: My noble friend Lord Henley says, "Not with three Mackays". But that would not be an argument for reducing the number to just the three Mackays. I am not sure how the noble Lady, Lady Saltoun of Abernethy, arrives at her 60. While a number of Scottish Peers appear often, as I said earlier, a fair number of my colleagues from Scotland play little part in the proceedings of the House.
Lady Saltoun of Abernethy: I thank the noble Lord for giving way. I arrived at my 60 by counting the number of life Peers in the membership of the Scottish Peers Association. I think that is fairly comprehensive.
Lord Mackay of Ardbrecknish: I thank the noble Lady. Indeed, one can go a little further: I think she will agree that there are a few members of the Scottish Peers Association whose links with Scotland are a little tenuous and that it has been quite a long time since the predecessors of some hereditary Peers have lived in Scotland. I will not take the point that has just been made to me.
The position of Scottish Peers is a real point. My noble friends have addressed it and no doubt the noble and learned Lord, Lord Falconer, will give us some advice on the matter--together with free tickets to the dome!
I wish now to address another and more important issue raised by the amendment of my noble friend Lord Gray. It is especially important at a time when there are to be elections to the Scottish Parliament and when there is a party in Scotland which seriously advances the cause of the breaking up of the Treaty of Union. We take this matter seriously in Scotland. Indeed, the governing party takes it so seriously that, along with its friends in the media, it has given the matter a huge amount of attention. It has rubbished the Scottish National Party quite successfully to date--sometimes with weapons which, when used by us, when we were in Government, caused us to be howled at by the very same Scottish press that is now using exactly the same ammunition. Politics is a funny old game; I should not complain. The result is that the Scottish National Party is not doing very well. But that does not mean to say that there will not come a day when it might do very well. Therefore it is important that we ensure that any legislation passed in the House is compatible with the Treaty of Union.
The Treaty of Union and the two Acts of Parliament--the Act of the English Parliament of 1706 and the Act of the Scottish Parliament of 1707--are arguably the three most important pieces of paper in the United Kingdom. They created Great Britain; they created the country in which we live. They are therefore hugely important. As my noble friend Lord Gray explained, Article XII of the Treaty of Union provides that 16 of the Peers of Scotland at the time of the Union should sit and vote in the House of Lords. That article provided that the Privy Council of Scotland should cause 16 of the Scottish Peers to be chosen in accordance with the provisions of another Act passed by the Scottish Parliament in the same year. I know it is harking back to the last debate, but it is interesting to see that Article XXII says,
That is not the position with the present Bill which actually takes away from all Scottish hereditary Peers the right to be one of the 16 Scots Peers who should sit in the House of Lords. In other words, it changes the Treaty of Union; it is a serious amendment to the treaty. Of course other legislation has amended the treaty. Last year we amended the treaty, I suppose, by the passage of the Scotland Act. But the Government thought it was so important to take account of the fact that they were amending the treaty and the two important Acts that in Section 37 of the Scotland Act they inserted these two lines:
My justification for raising these questions is to be found in a famous case in 1953 of John MacDonald MacCormick and Ian Robertson Hamilton v. The Lord Advocate on the question of whether or not Her Majesty could be styled Queen Elizabeth the Second or whether she ought not to be styled Queen Elizabeth the First. Ian Robertson Hamilton is still alive and kicking. He is a QC at the Scottish Bar and is standing for the Scottish National Party, without much chance of success, I suspect. John MacDonald MacCormick is long dead but his sons are certainly known to some of us and indeed to the noble and learned Lord the Lord Chancellor. One son, Neil MacCormick, is the Regius Professor of Public Law at the University of Edinburgh; and very prominent he is too. He is on the Scottish
"The Lord Advocate"-- at that time the Lord Advocate was Lord Clyde--
"conceded this point by admitting that the Parliament of Great Britain 'could not' repeal or alter such 'fundamental and essential' conditions. He was doubtless influenced in making this concession by the modified views expressed by Dicey in his later work entitled Thoughts on the Scottish Union, from which I take this passage ... After instancing the provisions as to Presbyterian Church government in Scotland with their emphatic prohibition against any alteration, the author proceeds: 'It represents the conviction of the Parliament which passed the Act of Union that the Act for the security of the Church of Scotland ought to be morally or constitutionally unchangeable, even by the British Parliament ... A sovereign Parliament, in short, though it cannot be logically bound to abstain from changing any given law, may, by the fact that an Act when it was passed had been declared to be unchangeable, receive a warning that it cannot be changed without grave danger to the Constitution of the country'".
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