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Lord Gray rose to move, That the Question whether the House of Lords Bill (as amended on Report) would, if enacted, breach the provisions of the Treaty of Union between England and Scotland be referred to the Committee for Privileges.
The noble Lord said: My Lords, in the course of consideration of the House of Lords Bill, we have debated amendments that address the question of the continuing statutory representation of Scotland in this House. None was acceptable to the Government, who argued that the right to such representation was spent.
I will not revisit the details of those discussions, but will briefly explain why I seek referral to the Committee for Privileges. There is a wholly reasonable case to answer. I submit that the House of Lords Bill breaches a fundamental element of the Union bargain. (That it may also deny the rights of individual Peers of Scotland is a subsidiary issue). The fundamental principle is the right of Scotland to continue to have specific representation in this House guaranteed by statute.
Without provision for Scottish representation in the Parliament of Great Britain there would have been no Union: hence provision was written into the Acts for both this House and another place. The mechanics of implementation were dealt with in subsidiary legislation which was, in turn, deemed to be part of the treaty. From
When amendments were debated mention was naturally made of Scots life Peers. At Report stage amendments were moved which called for a guaranteed minimum number of Scots life Peers resident in Scotland to continue the effect of the Acts of Union in the interim House. The Government were not persuaded to have such a guarantee on the face of the Bill. Faced with refusal to acknowledge Scotland's statutory right to representation, I have tabled this Motion.
The question is less a matter of which Act of Union provisions may or may not be specifically entrenched. It is rather the question as to what the architects of the Union intended should endure while the Union exists--the broad purpose approach as opposed to emphasis on actual words. Various passages of the 18th century legislation and their interplay indicate both permissiveness and permanence.
The Government case has been that Article XXII is spent, because it was repealed via legislative house-keeping after the passages relating to this House were superseded--but this is wholly irrelevant. The words are still there for us to read and interpret. Incidentally, Article XXII also dealt with representation of Scotland in another place. To argue that its repeal ended the right of representation in this House is to argue that it ended the statutory Scottish right to be represented by Members in the Commons, which is ridiculous.
I said earlier that without representation in the Westminster Parliament guaranteed by statute there would have been no Union. The negotiators were not thinking just about 1707, 1709 and 1710, but about an ongoing arrangement. At this stage of our constitutional settlement it is singularly important that we respect the Union and the Acts which created it, and singularly inappropriate that a fundamental provision should be swept away as a side-effect of the House of Lords Bill. I beg to move.
Moved, That the Question whether the House of Lords Bill (as amended on Report) would, if enacted, breach the provisions of the Treaty of Union between England and Scotland be referred to the Committee for Privileges.--(Lord Gray.)
Lord Renton: My Lords, to my mind, it is unthinkable that hereditary Peers of Scotland should be treated differently from all the other Peers who would be affected by this House of Lords Bill. But a very strange technical position arises, and I think that my noble friend Lord Gray is right to draw attention to the rather strange position, technically, of the Scottish Peers.
To my mind, that position is due to the fact that, although some provisions of the Act of Union have been repealed, especially the repeal resulting from the Peerage Act 1963, other provisions have not been repealed and which seem to indicate that the Scottish Peers have certain constitutional rights. I will not weary your Lordships with all the detail, but I think I should just make a brief reference to the articles concerned in what is technically called the Union with Scotland Act 1906. Article XXII was repealed, but not until the Statute Law Repeals Act 1993 got rid of it. Therefore, our minds are at ease on that matter.
As far as concerns Article XXIII, that was only partially repealed. The heading refers to the privileges of the 16 Peers of Scotland. Since the Peerages Act 1963, the number has not been limited to 16. Without troubling your Lordships with all the detail, Article XXIII of the 1706 Act preserves various privileges for Peers of Scotland. The two other relevant provisions are contained in paragraphs VI and VII of Article XXV of that Act. The sidenote reads:
If the Committee for Privileges had not been required anyway to consider the Motion that has just been passed by a majority of your Lordships, I would have been reluctant to support my noble friend Lord Gray. But as that committee is to consider the matter, perhaps even during the Summer Recess when it will have plenty of time to do so, it is only right that it should consider the unusual position, technical though one may think it to be, of the Peers of Scotland under the Act of Union of 1706. For that reason, I support my noble friend. The Committee for Privileges may well reach the conclusion that there should be introduced into the House of Lords Bill a schedule to repeal those parts of the Act of Union to which I have referred.
Lord Mackay of Ardbrecknish: My Lords, we have discussed the issue of Scottish Peers and the interplay between the Bill to abolish the right of hereditary Peers to sit in your Lordships' House and the Treaty and Act of Union. My noble friend Lord Renton has just explained that in 1963 some provisions of the Act of Union were repealed, but I believe I am right in saying that there can be no repeals of the provisions of the treaty since the two bodies which were party to that
One of the questions that must be asked is to what extent the words in the treaty were entrenched. In the treaty and the two Acts which followed it, one passed by the Scottish Parliament--the Union with England Act--and the other passed by the English Parliament--the Union with Scotland Act--some matters were certainly entrenched; some were clearly not entrenched; and on other matters there is silence on whether or not they are entrenched.
Previously, I quoted the judgment of Lord President Cooper in MacCormick v. Lord Advocate. I shall not recite all that I have quoted before because I do not believe that to be necessary. However, it is worth reminding noble Lords, and the Government Front Bench, of one sentence in the judgment of the Court of Session in 1953:
When we discussed this matter previously, the Government's case was that the provision for the 16 Scottish Peers was not entrenched. Interestingly, one can argue that the first part of Article XXII, which refers to the 16 Peers, is not related directly by non-entrenchment to the second part which is concerned with the method of election. Clearly, the method of election was not entrenched. One can argue that the first part dealing with the 16 Peers was entrenched.
The noble and learned Lord, Lord Falconer, who argued these matters so well at Committee and Report stages--I am glad that there is a measure of agreement from the Government Front Bench--pointed out that if the position of Scottish Peers had been entrenched, the 1963 Act would not have been possible. But the 1963 Act did not remove the right of Scottish Peers to sit here; it extended the right from 16 to whatever number then existed. There were not many more than 16 at that time, but the number was certainly greater than 16. Therefore, there was not a reduction, but an increase, in the number of Scottish Peers in your Lordships' House.
In this Bill we are faced not only with a reduction but the removal of that right in the Treaty of Union. There is no doubt that the Scottish Parliament would not have agreed to the Treaty of Union if the position of Scottish Peers in this House and of Members of Parliament in the other place had not been entrenched.
There are lots of Scottish life Peers in your Lordships' House. No doubt whoever answers the debate will point out that there are more than enough of us--perhaps sometimes too many--but that is not a very good argument. A future government may simply allow the Scottish resident life Peers to wither on the vine and may have a second Chamber composed wholly of Peers from England and Wales. I do not suggest that that will happen, but it could.
In conclusion, the Treaty and Acts of Union are not dull old documents of interest only to the noble Earl, Lord Russell, and a few other historians; they are the foundation stones of this kingdom and Parliament. We must ensure that we do not breach them. A powerful party in Scotland, represented in considerable numbers in Labour's Scottish Parliament, is determined not only to breach them, but to tear them up. We must not give those people any succour. They will not go away and will continue to be argued with.
We should put beyond doubt the impact of the present Bill on the Treaty of Union and the Acts of Union. As my noble friend Lord Renton said, because other matters are to come before the Committee for Privileges, it seems right and proper that noble Lords should agree with my noble friend Lord Gray and ask that committee to look also at this matter and to reach a judgment so that we may all know that the Bill is entirely consistent with the important building block that makes up the United Kingdom.
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