OPINIONS OF THE COMMITTEE
LORD NICHOLLS OF BIRKENHEAD
My Lords,
In 1706 England and Scotland were two distinct
states. England was ruled by Anne as Queen of England, and Scotland
was ruled by Anne as Queen of Scotland. Each state had its own
Parliament. On 1 May 1707 the two states were united into one
state by the name of Great Britain. The new state had a single
monarch, in the person of Queen Anne, and a single Parliament.
On 27 July 1999 the terms on which this union took place were
the subject of a reference made by your Lordships' House to the
Committee for Privileges. The question referred by your Lordships'
House was whether the enactment of the House of Lords Bill (as
amended on report) would breach the provisions of the Treaty of
Union between England and Scotland. The question raises points
of historic and constitutional interest and importance.
The first step is to identify the term of the
Treaty of Union between England and Scotland which the noble lord,
Lord Gray, contended would be breached. This is not altogether
straightforward, because the union was not preceded by a formal
document signed as a treaty of union on behalf of the two countries.
What occurred was that on 22 July 1706 twenty
five articles of union were agreed by commissioners nominated
on behalf of Scotland and commissioners nominated on behalf of
England. These articles were not binding upon either country.
They were merely an agreed set of proposals. In January 1707 the
estates of the Scottish Parliament `ratified, approved and confirmed'
the articles of union as agreed by the commissioners, subject
to some amendments. This Act of Union of the Scottish Parliament
received the assent of Anne, as Queen of Scotland, on 16 January
1707. The Scottish Act of Union provided that it was not to be
binding upon Scotland until the articles set out in the Act were
approved by `her Majesty with and by the authority of the Parliament
of England as they are now agreed to be approved and confirmed
by her Majesty with and by the authority of the Parliament in
Scotland'. The approval of the English Parliament was forthcoming
two months later, on 6 March 1707. On that day an Act of Union
of the English Parliament, approving articles of union identical
to those set out in the Scottish Act of Union, received the assent
of Anne as Queen of England.
Thus, the terms on which union took place are
to be found exclusively, not in a treaty as that expression is
normally understood today, but in enabling legislation enacted
separately by the two countries before they became `for ever .
. . united into one kingdom' (article 1).
Article 3 provided that the united kingdom of
Great Britain should be represented by one and the same Parliament,
to be styled `the Parliament of Great Britain'. Article 22 is
the lynch-pin of Lord Gray's case. Article 22 provided for the
composition of the `two Houses of the first Parliament of Great
Britain'. Unlike the English Parliament, the Scottish Parliament
consisted of only one House, in which peers of Scotland and commoners
sat together. A straight transfer of the peers of Scotland to
the upper House of the new Parliament of Great Britain was not
acceptable to the peers of England. Your Lordships were informed
that there were then 154 Scottish peers and 168 English peers.
The English peers feared they might be swamped in the new Parliament.
Under the political compromise worked out, article 22 provided
that of the peers of Scotland at the time of the union, sixteen
should 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.
I pause to observe that this legislation, considered
solely as legislation, does not assist the arguments of
Lord Gray. The reason is short, simple and conclusive: article
22 is no longer on the statute book. The Peerage Act 1963, section
4, provided that in future every holder of a peerage in the peerage
of Scotland should be entitled to sit in the House of Lords, and
that the enactments relating to the election of Scottish representative
peers should cease to have effect. Section 7 repealed article
22, in both the Scottish Act of Union and the English Act of Union,
so far as it related to peers of Scotland. For good measure, the
whole of article 22 of the Scottish Act of Union was repealed,
as spent or superseded, by the Statute Law Revision (Scotland)
Act 1964, and the whole of article 22 of the English Act of Union
was similarly repealed by the Statute Law (Repeals) Act 1993.
Further, I should draw attention to the non-discriminatory
nature of the House of Lords Bill. The object of the Bill is to
restrict the membership of your Lordships' House by virtue of
a hereditary peerage. In doing so the Bill draws no distinction
between any group or class of hereditary peers. Peers of Scotland
and peers with Scottish connections are treated the same as other
peers. There is no question of the Bill being outside that part
of article 18 of the Treaty of Union which envisages the laws
concerning `public right, policy and civil government' being `made
the same throughout the whole United Kingdom'.
However, this is by no means the end of the
matter. Mr. Keen Q.C., appearing on behalf of Lord Gray, submitted
that upon the passing of the two Acts of Union, in January and
March 1707, there came into being a treaty. By this treaty the
two kingdoms bound themselves to proceed to enter into a union
on 1 May 1707 on the terms set out in the two Acts. This treaty,
counsel submitted, still subsists. It still subsists, even though
the two parties to the treaty, the kingdoms of Scotland and England,
have long since ceased to exist.
I do not consider it is necessary to decide
whether any such treaty, binding in international law, came into
being before the union took place. Nor is it necessary to investigate
whether, if there were such a treaty, there still subsists any
treaty right or obligation which is currently justiciable, either
under international law or domestic law. For present purposes
it is sufficient to note that, especially in the Scottish Act
of Union, the articles of union are referred to as articles of
the `Treaty of Union'. Indeed, the title of the Scottish Act of
Union is an `Act ratifying and approving the Treaty of Union of
the two kingdoms of Scotland and England'. The inescapable fact,
and this is what matters, is that the union took place on the
basis of articles thus described. They were the conditions on
which Scotland and England became united into `complete and entire
Union'. The Committee for Privileges has now been charged by the
House with the task of advising whether the enactment of the House
of Lords Bill would breach the provisions of the Treaty, viz.,
would breach the terms on which the union took place. That is
the question, and the only question, upon which the House is seeking
advice from the Committee. If there would be a breach, the consequences
which would or might ensue are a matter for the House, not the
Committee.
Mr. Keen did not contend that the provision
in article 22, for sixteen Scottish peers to sit in the House
of Lords, was set in stone and unalterable. He was right to do
so. On its face the term of the Treaty embodied in article 22
is concerned with the composition of the first Parliament of Great
Britain. In the course of time changes in the composition of this
new Parliament would be inevitable. The constitutional arrangements
of the newly-created kingdom of Great Britain could be expected
to develop. Constitutional development was to be facilitated and
encouraged, not stifled. It is, therefore, not in the least surprising
to find that the parts of article 22 relating to Scottish MPs
were removed a long time ago, starting with the major constitutional
reforms of 1832: see the Representation of the People (Scotland)
Act 1832. Indeed, the article 22 provision for the election of
sixteen peers of Scotland would itself be bound, in time, to become
outdated. The peers of Scotland were a closed and, over time,
a diminishing class. In future, peerages would be peerages of
Great Britain and not peerages of Scotland or England. This was
envisaged in article 23. Clear language, therefore, would be needed
before article 22 could sensibly be interpreted as intended to
preclude all change. Article 22 contains no such wording.
Mr. Keen's contention, then, did not fasten
onto the particular provision in article 22. Instead, his submission
focused on the purpose underlying the article. His submission
was to the following effect. The underlying purpose of article
22 was that Scotland should be represented adequately in both
Houses of the Parliament at Westminster. Article 22 was a means
to that end. The need for such representation in your Lordships'
House continues so long as this House discharges a function in
the passage of legislation for Scotland. Although not expressly
stated, it is implicit in article 22 that Scotland will always
be guaranteed adequate representation in the British Parliament.
There has always been such representation, ever since 1707. Now,
for the first time, if the House of Lords Bill as amended on report
were enacted, there would be no guarantee that Scotland will be
adequately represented in the upper chamber. That would be a breach
of the implied term underlying article 22 of the Treaty of Union.
Mr. Keen disavowed any suggestion that representation must take
the form of hereditary peers. In a reformed House of Lords representation
might take the form of life peers, whether appointed or elected.
The form which the guaranteed representation should take would
be a matter for consideration by Parliament, once it was clarified
that the absence of guaranteed representation would be a breach
of the Treaty of Union.
I am in no doubt that underlying the Treaty
of Union was an intention by both countries that British subjects
north of the border, just as much as those living in England and
Wales, should be adequately represented in the Parliament at Westminster.
Whether that intention can be elevated to the status of an implied
condition of the Treaty of Union is a moot point. I rather doubt
it, but I reserve my opinion on this point. More importantly,
in my view the constitutional changes foreshadowed in the House
of Lords Bill would not conflict with that underlying intention.
What constitutes adequate representation is a matter of judgment,
on which opinions may differ widely. Moreover, representation
is an attenuated concept, and can be a misleading description,
when applied to your Lordships' House. Unlike honourable members
in another place, your Lordships are not `representatives' of
those who live in a particular area or region, whether Scotland
or anywhere else. Whatever may have been the position three hundred
years ago, it is difficult now to regard a Scottish peer as `representing'
Scotland in your Lordships' House in a way comparable to a Scottish
MP's representation of his constituents in the House of Commons.
Peers of Great Britain or, since 1927, peers of the United Kingdom
lack even the formal nexus with Scotland possessed by peers of
Scotland.
Despite these changes, Scottish interests do
not lack support in your Lordships' House. Many peers have Scottish
connections and a particular and active interest in Scottish affairs.
Many life peers fall into this category. Even if no hereditary
peers of Scotland were elected as `Weatherill' peers (as the hereditary
peers being excepted under clause 2 are colloquially known), for
the foreseeable future there would still remain a formidable Scottish
voice in the House, from the present Lord Chancellor downwards.
This mode of representation of Scottish interests may be less
formalised than in 1707, but this is the reality of political
life today in your Lordships' House. There is no reason to doubt
the adequacy of this form of representation.
Mr. Keen did not contend otherwise. His submission
was that the vice in the proposed legislation lies in the absence
of any express guarantee of adequate representation for
the future. The Bill makes no provision for any form of Scottish
representation. In breach of the Treaty of Union, the Bill does
not guarantee the right of persons having a connection with Scotland
to sit in future sessions.
I cannot accept this submission. As already
noted, there is room for argument that the Treaty of Union would
be breached if Scotland ceased to have adequate representation
in both Houses of the United Kingdom Parliament. If that politically
unthinkable event should ever happen, there would be scope to
contend that this constituted a breach of a condition implicit
in the Treaty. An implied term going thus far is arguable, but
I can see no justification for implying into the Treaty a term
going beyond this. What matters is sufficient representation in
fact. I do not see how, so long as adequate representation exists,
there can be any question of a breach of the Treaty of Union.
Accordingly, I would answer `no' to the question referred by your
Lordships' House.
In its submissions the Government questioned
whether it was appropriate for the Committee to give an opinion
on the effect of the Bill. The Government submitted it has never
been the practice of the Committee for Privileges to advise on
the effect of a Bill still in process of passing through Parliament.
In the light of these submissions I add a brief comment on the
nature of the question referred to the Committee. The referred
question concerns the effect a Bill would have if enacted. As
your Lordships know, in general the authoritative interpretation
of an Act of Parliament is a matter for decision by the courts
of law, not the legislature. This is a constitutional convention
with which your Lordships' House is familiar. The present reference
was exceptional, as also was the reference on the motion moved
by the noble Lord, Lord Mayhew of Twysden. Both references raised
controversial issues of interpretation directly affecting the
composition of your Lordships' House in the next session of the
present Parliament. This is a matter of peculiar concern to your
Lordships' House. There can be no question of either of these
references departing from the established convention.
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