LORD SLYNN OF HADLEY
My Lords,
The question referred to the Committee, on the
motion of the noble Lord, Lord Gray, is
"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."
That Bill provides in clause 1, subject to exceptions
specified in clause 2, that "no-one shall be a member of
the House of Lords by virtue of a hereditary peerage." By
clause 7 of the Bill, clause 1 is to come into force at the end
of the Session of Parliament in which the Bill is passed, which
explains why this matter has been treated as urgent.
The Government initially raised the preliminary
question as to whether it was appropriate for the Committee to
deal with this matter at all, but the Advocate General, in her
speech, accepted that the question referred should be dealt with
on its merits.
For my part, I have no doubt that the Committee
should, and indeed must, reply to the question. It has been referred
by the House to one of its Committees and it does not seem to
me to be appropriate or even possible for the Committee to challenge
the vires of that reference. Such a challenge must, and here did,
take place on the debate in the House as to whether there should
be a reference.
Whether it is desirable, as opposed to possible,
for such a reference to be made is a question for the House. It
seems to me, however, (though the Committee does not have to decide
the point) that there is force in the argument that questions
as to the effectiveness of a Bill to achieve the Government's
stated objective should not generally be referred to the Committee.
That issue is a matter for the House to debate; if enacted, the
terms of the Bill may fall to be considered by the courts if a
challenge is brought there. In the present case, however, which
concerns the composition of the House and the rights of existing
members of the House, questions of constitutional importance,
it is in my view appropriate that the questions should be dealt
with at this stage.
The essential matter raised by the question
referred is whether Article XXII of the Act of 1707 of the Parliament
of Scotland ratifying the Treaty of Union and the Act of Union
of the Parliament of England of 1706 would be breached if the
provisions of the Bill were enacted. That Article provided 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, and Forty five the number
of the Representatives of Scotland in the House of Commons of
the Parliament of Great Britain;"
It continued, in summary, that following a declaration
by The Queen, a Writ should be issued under the Great Seal of
the United Kingdom, directed to the Privy Council of Scotland
requiring them to cause Sixteen Peers "who are to sit in
the House of Lords to be summoned to Parliament and Forty five
Members to be elected to sit in the House of Commons of the Parliament
of Great Britain according to the Agreement in this Treaty."
When the date and place of the meeting of the first Parliament
of Great Britain was appointed by The Queen "a Writ shall
be immediately issued under the Great Seal of Great Britain, directed
to the Privy Council of Scotland, for the summoning of the Sixteen
Peers and for Electing Forty five Members, by whom Scotland is
to be Represented in the Parliament of Great Britain."
Lord Gray's question raised important matters
of both an historical and a constitutional nature. I have had
the advantage of reading in draft the opinion of my noble and
learned friend, Lord Hope of Craighead. He has traced the history
of the Acts of Union and has analysed clearly and in depth the
issues raised in arguments before the Committee. I do not think
it assists to set these matters out again in detail and I gratefully
refer to Lord Hope's analysis. I agree that the question should
be answered as he proposes. I confine myself to stating briefly
my conclusions.
In the first place, if the meaning of Article
XXII in the two Acts is treated as one of statutory construction,
the position in my view is plain. The Parliament of Great Britain,
and subsequently the Parliament of the United Kingdom, had power
under the constitutional doctrine of Parliamentary Sovereignty
(and whatever the position under the law of Scotland and England
previously) to amend and to repeal the provisions of those Acts.
The Acts have been amended from time to time, both in relation
to the representation by the peers and in the House of Commons.
But conclusively, in my view, section 4 of the
Peerage Act 1963 provides under the heading "Scottish peerages"
4. The holder of a peerage in the peerage
of Scotland shall have the same right to receive writs of summons
to attend the House of Lords, and to sit and vote in that House,
as the holder of a peerage in the peerage of the United Kingdom;
and the enactments relating to the election of Scottish representative
peers shall cease to have effect.
In schedule 2 to the 1963 Act there is listed
amongst enactments repealed by that Act Article XXII of the Treaty
of Union so far as that article relates to peers of Scotland.
The Statute Law Revision (Scotland) Act 1964
repealed Article XXII of the 1707 Act (the Scottish Act) as being
one of the provisions of the Acts of the Parliament of Scotland
which were `obsolete, spent or unnecessary or have been superseded
by other enactments'. The Statute Law (Repeals) Act 1993 repealed
Article XXII of the 1706 Act (the English Act).
The terms of the proposed Bill could not, in
any view, be in breach of the statutory provisions of Article
XXII.
The more complex question is whether the Bill,
if enacted, would violate Article XXII of a Treaty which is an
entrenched part of the constitution of the United Kingdom. Whether
there was a Treaty is a matter of interesting debate amongst academic
lawyers. For my part, I would accept that there was an international
treaty between England and Scotland (as it has often been so called
in the past), but since neither state has existed as such since
1707 there is no party to the treaty which could enforce it. But
the argument goes further — i.e. that whether or not there
was a treaty in international law and whether or not it is capable
of being, in some ways, still in force, the provisions of Article
XXII constitute a fundamental law of the constitution which is
entrenched in the sense that Parliament cannot legislate in violation
of it.
For my part, I doubt on the arguments which
have been advanced whether a provision, even if regarded as fundamental
and as part of the constitution, cannot be altered by Parliament.
But assuming that the provision of the "Treaty" of Union
could be entrenched, the crucial question is whether Article XXII
is entrenched in the sense that it cannot validly or lawfully
be altered by Parliament. It is not enough to say that some articles
of the Treaty are fundamental and were intended to continue —
thus article 1 provides that the two kingdoms shall "for
ever after be United into One Kingdom by the Name of Great Britain",
by the provisions in Articles XVIII and XIX to preserve laws creating
private rights and the Court of Session. The sole question is
whether Article XXII itself was entrenched so as to be unalterable.
It is to be noted that Article III provides
that the United Kingdom of Great Britain shall be represented
by "one and the same Parliament to be stiled the Parliament
of Great Britain." It might be thought that if that could
be changed so could a provision relating to the composition of
the Parliament. And clearly changes have been made. It is now
the Parliament of the United Kingdom and there have recently been
measures of devolution.
The object of Article XXII was both (a) to provide
for representation of peers summoned by the Privy Council of Scotland
and members of the House of Commons who were to be elected and
(b) to impose a limit on that representation in the light both
of the number of peers of Scotland (then not far below that of
England) and the number of electors in Scotland in relation to
the number in England. Those numbers were chosen in the light
of current conditions. The number of peers and the number of electors
has since changed and the Privy Council of Scotland no longer
exists. There were subsequently created peers of Great Britain
which would affect the relative proportion of the peers of Scotland
in the House. Then the 1963 Act substantially changed the position
of those holding peerages of Scotland. Moreover, the second part
of Article XXII clearly contemplated procedural changes for the
summoning of peers and for elected members of the House of Commons.
I do not regard it as conclusive that there
are no specific words of entrenchment in Article XXII as there
are in some other Articles. The context and the words might make
that a necessary implication. But I am quite satisfied that this
article was not intended, and is not to be read, as fixing for
all time a representation of sixteen or any other precise number
of peers. It must have been intended that changes could be made
with changed times, so long as Scotland was not discriminated
against unfairly in comparison with England. I do not think that
it has been established, or indeed seriously suggested, that there
has been such discrimination. On the contrary, the 1963 Act increased
the number of peers of Scotland who can sit in the House; there
is a significant number of life peers from Scotland; the present
Bill treats all peers currently entitled to sit in the House,
whether created of England, Scotland, Great Britain or the United
Kingdom equally. Most of the hereditary peers lose their seats,
all are equally eligible to be elected under clause 2. Even if
Article XXII can be read as implying a legal obligation to provide
for representation, or "adequate" representation (which
I do not consider that it can) it has not been established that
in the changed circumstances and allowing for the presence of
life peers there is a failure to provide such representation.
I add that, unlike members of the House of Commons, it does not
seem to me that the sixteen peers were to represent the people
or the nation of Scotland but, if truly representative at all
(rather than selected from the peerage of Scotland) they represented
that peerage.
Although Lord Gray has, in my respectful opinion,
raised an important question of great interest the answer in the
end is that the Bill if enacted would not breach the provisions
of the Treaty of Union between England and Scotland.
