Select Committee on Privileges Second Report



My Lords,

  The question referred to the Committee, on the motion of the noble Lord, Lord Gray, is

  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.

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