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Lord Gordon of Strathblane: I thank the noble Lord for giving way. Despite his very interesting essay on Scottish jurisprudence and the interpretation of the Act of Union, I think I am right in saying that Her Majesty the Queen is still styled Queen Elizabeth the Second in Scotland and to that extent the case must have been lost.

Lord Mackay of Ardbrecknish: Yes, but I do not think it was lost on that point. Lord President Cooper introduced that part by saying:

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I wonder what the Government think. I look forward to hearing what the noble and learned Lord, Lord Falconer of Thoroton, thinks of this and of the view of Lord President Cooper. I want to know under which category the noble and learned Lord thinks Articles XXII and XXIII fall. Are they part of the treaty, where the power to amend is there and the British Parliament can make amendments; or are they part of the treaty which the British Parliament has no power to amend?

Those questions should be answered. They are important. As I said, I do not think the Treaty of Union should be amended without a great deal of thought and without making sure that it is legitimate to amend it especially, as I said at the beginning of my contribution, when there are people in Scotland who would very happily tear up the treaty. The noble and learned Lord and his colleagues on the government side and those of us on these Benches are absolutely opposed to that. I therefore think that it is beholden on us to ensure that nothing we do disturbs the fundamental principles of the treaty.

5.45 p.m.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): I shall restrict myself to the amendment. Two points underlie the amendment. First, it is said that without the amendment there would inadequate representation of the Scots in this House. Secondly, it is said that the Bill transgresses both the spirit and the letter of the Treaty of Union and/or the Act of Union. I shall deal with the first point first.

In my view, it is almost unarguable, having heard the brilliance of the speech of the noble Lord, Lord Mackay or Ardbrecknish, that the Scots will not be adequately represented in the transitional House. One has simply to name a few names to indicate that they will be adequately represented. The noble Lord, Lord Steel of Aikwood, will be able to come down. He is nodding enthusiastically; he will manage that without any difficulty. I think of the noble Lord, Lord Mackie of Benshie; the noble Baroness, Lady Carnegy of Lour; the noble and learned Lord, Lord Irvine of Lairg; the noble Lord, Lord Gordon of Strathblane; the noble Lord, Lord Macdonald of Tradeston; the noble Lord, Lord Sewel; the noble Lord, Lord Gray of Contin; the noble and learned Lord, Lord Jauncey, and the noble and learned Lord, Lord Mackay of Drumadoon, to name but a few. Those names are names of honour--people who have incredibly effectively represented Scotland throughout the time that their representation has been required.

My noble friend Lord Williams of Mostyn has handed me a list that he would regard as being of equal lustre in relation to the people of Wales. I would love to read it out but I do not have the time. It is, as one would expect from my noble friend Lord Williams of Mostyn, very, very long indeed.

The noble Lady, Lady Saltoun, gave us the statistic that there are 60 members of the Association of Scottish Peers who are life Peers. I do not know whether there are life Peers from Scotland who do not join that association. If the noble Lady is the secretary it is hard

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to imagine that they would not join. But let us assume that 60 is the minimum. That means that in the transitional House 60 out of the 500 life Peers will be Scottish. With the greatest respect to the noble Lord, Lord Gray, it is absurd to suggest that Scotland will not be adequately represented in the transitional House.

I take the amendment one stage further. The idea that the way one provides adequate representation is to take a random bunch of hereditary Peers and make them the people who represent Scotland seems absurd. What little history I know tells me that the sovereigns of this country did not appoint hereditary Peers on the basis of regional equality; where they came from was entirely random. With the greatest respect, I believe that the first basis on which this proposition is advanced does not stand any examination.

Lady Saltoun of Abernethy: Perhaps the noble and learned Lord will give way. I also pointed out that of those 60 life Peers a goodly number--well over half--never attended because they were otherwise occupied.

Lord Falconer of Thoroton: I remembered that. The 500 I have taken represents every single life Peer. I have reason to believe from what I have been told that there are some English, Welsh and Northern Irish life Peers who do not attend either. Therefore, one is comparing like with like.

I turn to the second basis of the argument; namely, the immutable nature of the Act of Union. The noble Lord, Lord Mackay of Ardbrecknish, treated us to a disquisition on Scottish law. He pointed out that the quote from Lord Cooper indicated that the Treaty of Union was made between the sovereign Parliaments of Scotland and England. He said that therefore Lord Cooper was suggesting that bits of it could never be changed. He spoke about the part dealing with the representation of Scottish hereditary Peers. That would mean that one could not increase or decrease the number. If one increased the number it would, as I understood the argument of the noble Lord, offend against the deal done on behalf of the English Parliament. That is the necessary effect of the argument advanced by Lord Cooper.

The case to which reference was made predated 1963. By 1963 it was constitutional convention accepted by all that the UK Parliament was sovereign and that there were no entrenched provisions. That was reflected in the 1963 amendment to the Act of Union which changed the basis on which Scottish hereditary Peers sat in this House. It was changed effectively from an elected system, to which the noble Lord, Lord Forbes, referred, to one in which every Scottish hereditary Peer had the right to sit. With the greatest respect to the noble Lord, Lord Mackay of Ardbrecknish, it has been accepted by constitutional lawyers that that point has gone. It is on that basis that the Bill has been drafted.

I make one final point on the spirit and letter of the Act of Union. Noble Lords have rightly been referred by the noble Lord, Lord Mackay of Ardbrecknish, to the provisions of the Treaty of Union which provide that Scottish hereditary Peers shall be treated just the same as English, Northern Irish and Welsh hereditary Peers.

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As everybody knows, English, Northern Irish and Welsh hereditary Peers will lose their right to sit and take part in these proceedings; in accordance with the Treaty of Union, so should Scottish hereditary Peers.

The Earl of Caithness: Can the noble and learned Lord provide any other examples of breaches of the articles of the Treaty of Union, and when?

Lord Falconer of Thoroton: It is not a question of the provisions being breached. The particular example that I have given is precisely that which has been relied on in this matter; namely, the provision relating to the election of hereditary Peers. It is not a question of providing examples but demonstrating that this one is changeable.

The Earl of Caithness: With respect, the noble and learned Lord has not answered my question. I heard exactly what he said. He referred to the particular point raised by my noble friend Lord Mackay of Ardbrecknish. Does the noble and learned Lord know of any other cases where there has been a breach of the Treaty of Union, and when?

Lord Falconer of Thoroton: I do not believe that the noble Earl understands my point. I do not accept that there is any breach. What is the relevance of other examples when we can see that the very provision relied on has already been amended and was repealed by the Statute Law Reform Act 1993?

Lord Elton: If the noble and learned Lord rests his case on parity of treatment between the hereditary Peers, how does that fit with the Weatherill amendment?

Lord Falconer of Thoroton: Scottish hereditary Peers, like all other Peers, will be entitled to stand for election.

The Earl of Northesk: Perhaps the noble and learned Lord can clarify one matter. Notwithstanding anything else, does the appearance of the word "derogation" on the face of the Act of Union have any substance left to it?

Lord Falconer of Thoroton: I believe that I have set out the constitutional position, which is that this Parliament is sovereign in relation to all previous Acts of Parliament.

Lord Mackay of Ardbrecknish: The noble and learned Lord certainly made a nice point, as his colleagues would describe it, about the 16. But does he agree with me that there is a difference between increasing the number, which was what happened--it was not a significant increase because by that time there were not many left--and decreasing it? I would have thought that his argument would have held a lot more water had the 1963 Act led to less than 16. The fact that it kept the 16 and added to them indicates that that did not breach the Act. If I accept for the moment the argument of the noble and learned Lord, why have

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the Government not put something like Section 37 of the Scotland Act into this Bill to put the issue beyond peradventure?

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