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Baroness Ramsay of Cartvale: My Lords, I beg to move that the House do adjourn during pleasure until 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.39 to 8.45 p.m.]

House of Lords Bill

Further consideration of amendments on Report resumed.

[Amendment No. 28 had been withdrawn from the Marshalled List.]

Lord Mackay of Ardbrecknish moved Amendment No. 28A:

After Clause 2, insert the following new clause--


(" .--(1) Nothing in section 1 of this Act shall be taken to prevent sixteen peers in the peerage of Scotland from sitting and voting in the House of Lords.
(2) At the beginning of each Parliament, the peers of Scotland shall elect from amongst their number, by open election and plurality of votes, the said sixteen peers, who are to sit and vote in the House of Lords during that Parliament.
(3) In the case of the death or legal incapacity of any of the said sixteen peers, the peers of Scotland shall elect another of their number in place of the said peer.")

The noble Lord said: My Lords, in moving Amendment No. 28A I should like to speak also to Amendment No. 28B. The latter is but a minor variation of Amendment No. 28A. Just in case one or other contains a technical drafting defect, we have decided to carry out a belt-and-braces exercise in relation to these two amendments. However, both amendments cover exactly the same point. We return to something discussed at Committee stage; namely, the impact of this Bill on the Treaty of Union between Scotland and England and the two Acts, one passed by the Parliament of Scotland before it ceased to exist and one passed by the Parliament of England before that ceased to exist. I emphasise the reference to the Parliament of England as well as the Parliament of Scotland for reasons that I shall turn to in a moment.

The noble and learned Lord, Lord Falconer, as one would expect, gave full, interesting and useful answers, but, naturally--one would do the same in his place--only to those questions to which it was easiest to give such answers. He slightly slid away from one or two questions and others just slipped to the bottom of the note-taking pile. My noble friends and I thought that it was worth returning to the issue to give the Government the opportunity to discuss again the impact of this Bill on the treaty and whether or not it infringed articles within it.

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One of the arguments of the noble and learned Lord was that if I was right and the Bill infringed the treaty, clearly so did the 1963 Act--because, presumably, the English Parliament agreed to the 16 Peers from Scotland in 1707 on the basis that that was a reasonable balance at the time-- by upsetting the balance and introducing about 15 further Scottish Peers. When my noble friend Lord Gray speaks, he will have more detailed knowledge of that than I do, having been present at the time and having been an active player in the last election for the 16 Members of the Scottish Parliament.

The argument of the noble and learned Lord was that if I were right and the treaty could not be changed because the Parliament of England no longer existed, just as the Parliament of Scotland no longer existed, the 1963 Act could not have been passed and the remaining Scottish Peers who were not elected could not have come to your Lordships' House.

The point which I wish to draw to the noble and learned Lord's attention is that I do not believe that the decision by this Parliament in 1963 upset the principles on which the treaty was based. When the treaty was written, and the 16 were laid down, it was against the background of a smaller House of Lords. Therefore, adding 15 Scottish Members clearly did not infringe the Scottish Parliament's position. It wanted at least 16 to get, let us say, 30. It was not a breach of that. The noble and learned Lord argued that 30 was a breach of what the Parliament of England decided.

The fact is that the increase in membership of the House had changed the historical reasons for the balance which was laid down in the treaty and agreed between the governments of Scotland and England and then put into the two Acts of both Parliaments. Therefore I do not think that the position is the same as in 1963. Here we are removing the right of any of the Scottish peerage to sit in your Lordships' House; and on any reading that has to be a breach of the Treaty of Union. Article XXII is quite clear on that issue.

Related to that was the discussion on Lord Cooper's judgment in the case of Hamilton and MacCormick v. The Lord Advocate on the question of the style and title of Her Majesty the Queen. The argument which MacCormick and Hamilton put forward was that the Queen should be Elizabeth I of Great Britain and not Elizabeth II. Those of us alive at the time will remember that it was a live issue in Scotland. Pillar boxes received visits from explosives when they appeared with "EIIR" on them. It did not get much further than that, except to the court.

The court found against MacCormick and Hamilton. Mr Hamilton is still alive and, as I mentioned in Committee, he was a candidate for the Scottish National Party. He failed to be elected. The other person, John MacDonald MacCormick is now long dead. But, as I explained to the House, one of his sons, well known to the Lord Chancellor and perhaps to the noble and learned Lord, Lord Falconer, Neil MacCormick, was until the beginning of this month a serious professor in the Law Department at Edinburgh University. He is now a Member of the European Parliament having been

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elected by the amazing system the Government chose to deal with the European parliamentary elections. Professor MacCormick was number two on the SNP list and now joins the European Parliament. So there is an interesting link between today's politics and the politics of 1953.

While the court held against them as regards "EIIR", Lord Cooper made perfectly clear his view on the questions of the characteristics of the treaty, especially of the sovereignty of Parliament. I quoted the judgment in Committee. I shall quote it more succinctly by missing out some of the sentences that do not matter, as long as no one complains they are incomplete quotations.

In his judgment, Lord Cooper said:

    "lest this case should go further, I shall briefly express my opinion.

    "The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law. It derives its origins from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contains some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions.

    "The Lord Advocate conceded this point by admitting that the Parliament of Great Britain 'could not' repeal or alter such 'fundamental and essential' conditions".

I shall not read out some of the remainder that I read, but the question I pose again to the noble and learned Lord is this. Why is it that Article XXII does not fall to be considered along the lines of the Lord Cooper judgment? It is a simple question which the noble and learned Lord might like to address again to see whether he can convince me more than he succeeded in doing on the previous occasion. Those are my first and second points which the noble and learned Lord should try to answer this time.

The noble and learned Lord also failed to answer the point made by the noble and learned Lord, Lord Jauncey of Tullichettle. At col. 184 of the Official Report of 27th April, he pointed out, in endorsing the remarks of the noble Earl, Lord Mar and Kellie--I am sure that he will speak later--that,

    "The effect of the Bill as drafted will be that, for the first time since 1707, there will be no statutory right of representation for Scotland in this House". He continued:

    "It is a matter that the Government should think worthy of consideration, even if not in the form of this amendment".

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    The noble and learned Lord did not address himself to the point that the noble and learned Lord, Lord Jauncey of Tullichettle, made. Nor did he address himself to my rather simpler question--not being a lawyer. It was straightforward. Why, as the Bill undoubtedly amends the Treaty of Union--we are agreed that it changes the Treaty of Union--was nothing put in this Bill similar to Section 37 of the Scotland Act which this Parliament passed just over a year ago? Section 37 boldly states:

    "The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act". If it were thought prudent to put that in the Scotland Act, I suggest to the Government that it might be prudent to put it in this Act, as quite clearly what is proposed by the Bill impinges not only on the two Acts but also on Article XXII of the treaty itself. It is true to say also that Article XXII was never repealed by the 1963 Act. So if the 1963 Act falls, there is an argument that we shall go back to the treaty. That is why my amendment takes us back to before the 1963 Act incorporating in this Bill the treaty itself so that 16 members of the peerage of Scotland can be elected to represent in part, along with those of us life Peers from Scotland, the position of Scotland within what is supposedly an equal partnership union. I beg to move.

9 p.m.

Lord Gray: My Lords, in rising to support the amendments of my noble friend Lord Mackay of Ardbrecknish, I shall speak to my Amendment No. 37, with which his are grouped.

Like my noble friend, I wish to raise some points which arose when I moved a not dissimilar amendment in Committee. My noble friend referred to 1963. In 1963 the representative Peer system was replaced, on a recommendation of the Joint Select Committee on House of Lords reform. The committee gave two reasons for its recommendation: first, the large increase in the membership of the House of Lords since the Union: secondly, the small number of non-representative Peers of Scotland. At that time, there were 15; today there would be 25.

The committee subsequently added a recommendation that the words in Article XXII of the Acts of Union governing the election of representative Peers should be repealed. Such repeal was, of course, necessary to implement the committee's primary recommendation, and was made with the passing of the 1963 Peerage Act.

It is beyond question that the intention and effect was to substitute all the Peers of Scotland for the representative 16, and sensibly to modernise and enhance Scottish representation in this House, in keeping with the age in which we live. Most certainly, it was not intended to remove specifically guaranteed representation.

In Committee, the noble and learned Lord, Lord Falconer of Thoroton, cited the repeal of the whole of Article XXII from both the Scottish and English Acts of Union as meaning that the provision was spent and that was an end of the matter. My reaction to that is to quote

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from Chapter 5 of Article XXV of the Union Acts to which my noble friend has just referred. It states:

    "And it is hereby statuted and ordained, That this Act of Parliament, with the Establishment therein contained, shall be held and observed in all Time coming, as a fundamental and essential Condition of any Treaty or Union to be concluded betwixt the two Kingdoms, without any Alteration thereof or Derogation thereto in any Sort for ever". Surely to argue in the face of those words that Article XXII is spent and that is the end of the matter is extraordinary and ignores the nature of what was done in 1963.

In 1963 Parliament respected and remained within the bounds of those words that I have just quoted by using the enabling words in Article XXII, which are:

    "Until the Parliament of Great Britain shall make further provision therein". Parliament did make further provision therein. Scots Peers were treated as a group in 1707 and again in 1963. Section 4 of the 1963 Peerage Act quite clearly stands in place of the representative provision of Article XXII.

The wording of Section 4 treated Scots Peers as a group, and equating their rights therein with those of United Kingdom Peers was merely the most expedient method of achieving enfranchisement and should not be used now as a device to bring individual Peers of Scotland within the ambit of Clause 1 of the Bill and end the Union position.

It is perhaps worth commenting as an aside that resisting my arguments for those of my noble friend on the ground that Article XXII is spent, as was done on the last occasion, surely raises a question concerning another place, because the article also dealt with representation of Scotland in the House of Commons. In replying to a point made by my noble friend Lord Northesk during our Committee debate, the noble and learned Lord, Lord Falconer, said:

    "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".--[Official Report, 27/4/99; col. 193.] No doubt that is generally speaking correct, but I do not believe that such a dictum can be applied against the words I quoted from Article XXV on the implementation of a treaty between sovereign states, which were surely intended to endure while the Union does.

Much was said in Committee about the current level and quality of Scottish representation in your Lordships' House. I made it clear that I accepted what was said, but that my concern is solely with the treaty principle.

However, in drafting my Amendment No. 37, I have taken note of other points made. The amendment this time restricts eligibility for election to Peers of Scotland who are domiciled there and extends the electoral college to all Peers domiciled in Scotland. I hope that this modernisation of the scheme will commend it. Information which I have gathered for this debate shows that there are 110 Peers who give a Scottish address; 70 of them are hereditary and 40 are life Peers. At this time, there are 41 Peers of Scotland only, one of whom is a minor. Of the remaining 40, I believe that approximately seven would be ruled ineligible on domiciliary grounds.

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With devolution in place, it is important that we take care not to retract anything from the bargain which created the Union. I hope that my arguments and those of my noble friend will persuade the House and the Government that a case for an amendment such as this has been made.

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