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Lord Elton: My Lords, I rise merely as one of the few English voices in this debate to ask the noble and learned Lord who is to reply not to lose sight of the cogent arguments with which my noble friend Lord Gray introduced his amendment and which go back to the treaty. It takes two sides to make a treaty and so far we have heard everything that Scots expect from their treaty. But it is our treaty too, and if one side loses its rights so does the other. That is something that the Government cannot afford to do either, because if they abrogate the treaty in any way they will soon find the Government of Spain requiring them to abrogate the provisions of the Treaty of Utrecht, with incalculable consequences for the nationality of Gibraltar. In law we need a cogent and sufficient answer to my noble friend's point.

9.45 p.m.

Lord Rowallan: My Lords, I am very grateful to the noble and learned Lord, Lord Simon of Glaisdale, for raising this matter. Many noble Lords may have forgotten that there is a huge difference between the Scottish Peers and the Peers of Scotland. In this group of amendments we are talking about the Peers of Scotland. I think there is an argument here. I must admit that when it comes to a Scottish Peer--of which I am one--domiciled in Scotland, there is a very difficult argument. In fact, I do not think there is a strong argument at all, especially in the light of the debate we have had about the Weatherill agreement and everything else today.

However, with the Peers of Scotland we have a very strong argument. Devolution is one thing but it deals only with devolved subjects; the sovereign Parliament is still Westminster. The Treaty of Union was quite clear when it set out the Union roll; it said that there would be 16 elected Members. That is extremely democratic; it cannot be anything else. It is certainly not any form of selection.

It is now very important that we ensure representation of Scottish Peers of Scotland in your Lordship's House--if for no other reason than that, with the new proposals brought forward by the noble and learned Lord the Lord Chancellor today, it will be very hard for people down here to know what Scottish Peers are doing in Scotland or to know what is going on up there. This means of getting some Scottish Peers of Scotland here is a very sensible idea.

My noble friend Lord Gray raised a very important point. It is quite clear in the Union roll and in the Union that Articles XXII and XXIII are never to be changed. My noble friend then raised a very important point when

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he moved on to Articles XXIV and XXV. We must look at this very carefully to ensure that we are not breaking a treaty of very long standing.

Lady Saltoun of Abernethy: Before the noble Lord sits down, to the best of my knowledge there are no such animals as Peers of Scotland; there are Scots Peers. There are English Peers, Scots Peers, Irish Peers, GB Peers and UK Peers, but Peers of Scotland are not animals that are known to me.

The Duke of Montrose: My Lords, many issues are not entirely clear at the moment. Perhaps I may say something in an attempt to add clarity to some of them. I am sure that the Front Bench opposite will give your Lordships some clarification; we shall be very interested to hear it. As my noble friend Lord Mackay of Ardbrecknish has introduced the opinion of the Lord Advocate Cooper into this matter and the fact that he was puzzled as to why two sovereign parliaments coming together would appear to have adopted purely the practices of one of them, I made some inquiries of the Library. The answer I received perhaps sheds a little light on the matter.

We are all familiar with the position that the Scottish Parliament was prorogued and not reconvened until the present institution was put in place. On 24th April 1707 the House of Lords and the House of Commons in Westminster were prorogued. On 30th April the Lords Commissioners read a proclamation from the Queen, which contained a declaration to the effect that Parliament should continue and would constitute the representation of England in the first Parliament of Great Britain. From this has perhaps slowly emanated the idea that most of the traditions carried on were those of the former English Parliament.

I hope noble Lords will forgive me if I hark back to something I referred to at Second Reading. As we consider the reconstitution of this Parliament, we should look at how it becomes the Parliament of the United Kingdom in every aspect and does not rely too much on the traditions of one other Parliament.

Perhaps I should mention the feelings of the noble Lord, Lord Taylor of Gryfe, about the opening of the Scottish Parliament. As far as I know, the guest list has been firmly in the control of the party opposite. No doubt some Peers, appointed or hereditary, would have attended had they been asked. Perhaps it is an interesting reflection on the way in which matters might turn out there. The guest list has not been based on proportional representation.

Lord Cochrane of Cults: My Lords, I hope that mine is a slightly independent voice. I have lived in Scotland for many years. I am a Peer of the United Kingdom. I feel that this debate, on points which even after a good deal of study seem somewhat arcane, should have been considered by the Government before the Bill was prepared. There is substance in them. I am indebted to the noble and learned Lord, Lord Simon of Glaisdale, for defining "domicile" so clearly, and to my noble kinsman on the Liberal Democrat Benches for

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describing what happened many years ago. But we are faced with today's situation. We must consider not what is best for any party, but what is best for the country. If, as is claimed, the treaty obligations are valid, they must be taken into account. I hope that in replying the Minister will feel able to deal with the points of substance that have been raised in many parts of the House, and not merely "dust them off" as trifling and inappropriate.

When I opposed the Bill earlier, I was described by the noble and learned Lord the Lord Chancellor as "castigating" it. That is quite a strong word. I hope that I was only infrequently castigated at school, but that is by the way. The Bill is not one that can be supported on the ground that it will make the lot of the people of this great country better; it seems unlikely to do so. Therefore, this point should be most carefully considered. The objections, points and problems that have been raised on all sides of the House must be considered. I hope that the noble and learned Lord who is to reply will accept that.

Lord Mackie of Benshie: My Lords, I have had a good dinner. I am therefore inclined to look at these amendments with a certain amount of sympathy--but really, they are nonsense! How can we expect an electorate of the Scottish Peers to be a base for any proper representation in this House? The idea is not up-to-date or sensible. There are a large number of Scottish Peers in this House. I am not sure whether I am included among them. For an electorate of that sort to think itself democratic in electing a number of Members of this House is total gibberish.

If we are to have proper representation in Scotland, any committee properly appointed should consider all the aspects of Scotland--industrial, agricultural and so on--and appoint people from Scotland, hereditary Peers or others, or people who will be promoted to become Peers. But to elect 16 Members from among the hereditary Peers in Scotland is not in the present context sensible.

Baroness Carnegy of Lour: My Lords, before the noble and learned Lord replies, will he bear in mind the point about which my noble friend Lord Monro reminded the House; namely, the large amount of business relating to Scotland that will continue to be taken in this House, which is reserved to Westminster, and which will require proper insight on the part of a number of Scots Peers?

I have recently spent a great deal of time on the Health Bill and the Tax Credits Bill. The Welfare Reform and Pensions Bill is before the House, and we have just considered the Water Industry Bill. Matters relating to health and water will not come before the House again because they are devolved, but others will.

We shall have trade and industry matters, employment legislation, and we shall continue to follow carefully the affairs of Kosovo where many Scots military personnel are serving. There will be mainstream scrutiny of the European Parliament's goings-on and of European

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legislation. We understand that there will be many problems with the Human Rights Act. Those are just some of the matters we shall have to discuss.

I hope that the noble and learned Lord will not joke that there will be enough of our life Peers. There will not be enough of our life Peers and I hope that whatever way the Government handle the appointment of people to the Parliament, we shall hear something about our concern about the hereditary Peers. If the noble and learned Lord does not accept the amendments, we wish to hear how the matter will be dealt with.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I do not for one moment doubt the sincerity of the noble Lord, Lord Gray, and the noble Earl, Lord Perth. The Conservative Front Bench has supported the amendment. Perhaps I may describe its effect. The amendment proposes that any Peer of Scotland--that means any hereditary Peer created before 1707, of which there are at present 42--can elect from their number 16 to sit in the House of Lords.

That is discriminatory against non-hereditary Peers, against Peers created after 1707, in the 18th, 19th and 20th centuries. The proposal is put forward as a way, first, of meeting the provisions of the Treaty of Union and, secondly, of providing appropriate representation in the House for the people of Scotland.

I deal first with the point about the Treaty of Union. We have not in any way sought to abrogate the Treaty of Union. It stands unabrogated. Articles XXII and XXV are the two articles relied on. Article XXII states:

    "That by virtue of this Treaty, of the Peers of Scotland, at the Time of the Union, sixteen shall be the Number to sit and vote in the House of Lords". Then follow some irrelevant words. The article continues:

    "and that when her Majesty, her Heirs or Successors, shall declare her or their Pleasure for holding the first or any subsequent Parliament of Great Britain, until the Parliament of Great Britain shall make further Provision therein, a Writ do issue under the Great Seal of the united Kingdom".

As is apparent from the words of the Treaty of Union, it was explicitly envisaged that the Parliament of Great Britain could amend or change the number both of the Peers of Scotland and of the representatives of Scotland who could sit in this House. There is therefore nothing in the Treaty of Union that prevented the 1963 Act being passed which changed the number of Peers who could sit in the House. There is nothing in the law of this country that prevents it because Article XXII was then repealed by a 1964 and a 1993 Act. Equally, there is nothing that prevents this Bill being turned into an Act of Parliament and changing or eradicating the right of the Scottish Peers to sit. There is absolutely nothing in the legal point.

To answer the noble Lord, Lord Cochrane of Cults, we carefully considered the points before we proposed the Bill in this form. We are quite satisfied that there is nothing in it.

A point was made by the noble Lord, Lord Mackay of Ardbrecknish, in support of the proposition that hereditary Peers created before 1707 should have an

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electorate to elect this House. Article XXV of the Treaty of Union states:

    "That all Laws and Statutes in either Kingdom, so far as they are contrary to, or inconsistent with the Terms of these Articles, or any of them, shall, from and after the Union, cease and become void, and shall be so declared to be, by the respective Parliaments of the said Kingdoms". When we read that, it is plain that it is stating that the Treaty of Union overrides any laws which exist at the time and which are inconsistent with the Treaty of Union.

The argument was put attractively by the noble Lord, Lord Mackay, as it was by the noble Lord, Lord Gray; but with the greatest respect to them, there is absolutely nothing in it whatever.

Then it is suggested that the way that one deals with the under-representation of the Scots is to have this somewhat unrepresentative group of people. I do not believe that the people of Scotland would be pleased to hear that their representation in the House of Lords was to be pepped up by this unique, perfectly worthy but not very representative group. Every time we have this debate, one looks around the Chamber and sees very eminent life Peers who will be more than able to represent the people of Scotland in the transitional House; and every time I mention names, that is regarded by the noble Baroness, Lady Carnegy of Lour, as a joke. I shall not mention any names, but it is perfectly clear that the Scots are well able to look after themselves. I do not think that there is anything more that I can usefully say about any of these amendments, save to say that now that we have gone through the detail of the matter, I respectfully ask that we do not have to return to it again.

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