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Select Committee on Privileges Second Report


OPINIONS OF THE COMMITTEE

LORD HOPE OF CRAIGHEAD

My Lords,

  On 27 July 1999, after a brief debate on a motion in the name of Lord Gray, the House referred the following question to the Committee: "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". On 20 October 1999 the Committee, having heard counsel on behalf of Lord Gray and Her Majesty's Government, decided to report to the House that it was the unanimous opinion of the Committee that the House of Lords Bill (as amended on Report) would not, if enacted, breach the provisions of the Treaty of Union and that reasons for that decision would be given later. The following are the reasons which I would give for reporting to the House in these terms.

Background

  The House of Lords Bill was brought from the House of Commons on 17 March 1999. Clause 1 of the Bill provides that no-one shall be a member of the House of Lords by virtue of a hereditary peerage. Clause 2 of the Bill, as amended on Report (commonly referred to as "the Weatherill amendment"), makes provision for no more than 90 people together with the holder of the office of Earl Marshall and the person performing the office of Lord Great Chamberlain to be excepted from clause 1 by or in accordance with standing Orders of the House. It is to be noted that the Bill does not discriminate, as it treats all hereditary peers equally. The hereditary peers to whom these clauses apply include the peers of Scotland, whose peerages were created before the Union of 1707, as well as all other hereditary peers. And the peers of Scotland are eligible, along with all other hereditary peers, to be excepted from clause 1 under clause 2. But the Bill, as amended on Report, does not guarantee that any of the peers of Scotland would fall within that exception. Nor does the Bill guarantee the right of any other person to membership of the House by virtue of having a connection with Scotland. Clause 7 of the Bill provides that clauses 1 and 2, among other clauses, are to come into force at the end of the Session of Parliament in which the Bill is passed.

  The primary issue which the question raises is whether the Bill would, if enacted in these terms, breach Article XXII of the Acts of Union of 1706 and 1707 because it would remove the right of all the peers of Scotland to sit in the House after the end of the Session in which the Bill is enacted without guaranteeing the right of any of the peers of Scotland or of any other person having a connection with Scotland to membership of the House.

  A secondary issue which has been raised is one of competency. In its written case the Government submits that, as the Bill has not yet been enacted, the Committee should consider whether it is appropriate for it to give an opinion upon the effect of the Bill. This is because it has never been the practice of the Committee to advise on the effect of a Bill that is still in the process of passing through Parliament. The Advocate-General made it clear that she was content to deal with the primary issue on its merits, while reserving her position on the point of competency raised in the written case. For my part, I would not wish to do anything that might encourage a departure from the practice by which this Committee is not asked to advise on the effect of a Bill while it is still under consideration by Parliament. But I think that the circumstances of this case are so unusual that it was appropriate for the House to seek the advice of the Committee on Lord Gray's question. The House of Lords Bill will have a profound effect upon the future membership of this House of not just one but of all the peers of Scotland when it comes into force at the end of this Session. Furthermore it seems to me that it is a matter of legitimate concern to the House, in view of the constitutional significance of the Bill, to know whether the measure which it is being asked to pass is in breach of the Union Agreement of 1707. This makes it highly desirable that the question, which raises a serious and important issue that cannot responsibly be described as frivolous, should be answered at this stage.

The Treaty of Union

  The Union Agreement of 1707 has been described as only a stage, although certainly an important one, in the long story of Scotland's absorption into a wider Britain, which created an Anglo-Scottish common market that was the biggest customs-free zone in Europe and gave Scotland access to one of the largest empires in the world: T.C. Smout, A History of the Scottish People 1560-1830 (Collins, 1969), p. 215. Following the so-called Union of the Crowns in 1603 Scotland and England had remained separate states in international law. When James VI of Scotland acceded to the throne as James I of England a personal union of the crowns took place. But this was a temporary association rather than a permanent union, as the laws of each kingdom remained unaltered and the succession to the crown of each kingdom continued to depend upon the law of each kingdom: see Lord Murray's article, The Anglo-Scottish Union, 1961 S.L.T. (News) 161. A century later, following the accession to the thrones of both Scotland and England of Queen Anne, England expressed the wish to enter into a full union with Scotland. It appears that the primary motive for this was to avoid dangerous disputes over the succession to the throne when Queen Anne died: T.C. Smout, op. cit., p.216. A majority in Scotland would probably have preferred a federal union, but the English wish was for an incorporating Union of Parliaments. Faced with a choice between separation and incorporation, the Scottish Parliament decided in favour of a mutual incorporation of both England and Scotland into a new state to be known as Great Britain.

  The process of negotiating a parliamentary union between the two states was delegated to thirty-one Commissioners nominated by the Parliaments of each country. They were expressly forbidden to conclude a treaty themselves. Their task was to negotiate provisional articles for a treaty of union for submission to the Queen and to the two Parliaments. On 22 July 1706 they signed an agreed draft in which the provisional articles for the union were set out. On 23 July 1706 the draft was presented to the Queen, who in her capacities as Queen of Scotland and Queen of England recommended them for approval by the two Parliaments. The articles were, with minor alterations, approved by the Parliament of Scotland and ratified by an Act of 16 January 1707: the Act ratifying and approving the Treaty of Union of the two Kingdoms of Scotland 1707, A.P.S., xi, 406, c.7. They were approved without further alteration by the Parliament of England on 6 March in the same year: the Union with Scotland Act 1706 (6 Anne c.11). The fact that the English Act bears a different date from that of the Scottish Act may be confusing at first sight. But it will be recalled that England, unlike Scotland and the rest of Europe, did not dispense with the Julian Calendar until 1752. So, while the New Year 1707 began on 1 January in Scotland, it did not begin in England until 25 March. The Union took effect on 1 May 1707, upon which date "and forever after", in terms of Article I of the Union Agreement, the two Kingdoms of Scotland and England were united into one Kingdom by the name of Great Britain.

  The description of the Union Agreement as a "Treaty" of Union has its origin in the enactments of the two Parliaments which nominated and appointed the Commissioners. The word "Treaty" appears in several places in the agreed Articles. For example, it is to be found in Article V, which provided that all ships belonging to Her Majesty's subjects in Scotland "at the time of ratifying the Treaty of Union of the two Kingdoms" in the Parliament of Scotland were to be British ships. It appears in the long title of the Act of the Scottish Parliament of 16 January 1707 and in the preamble to the English Act of 6 March 1707. The phrase "Treaty of Union" is still in common use. For example, in Walker Trustees v. Lord Advocate, 1912 S.C. (H.L.) 12 Lord Atkinson used the expression "the Treaty and Act of Union" at p. 17, which he abbreviated to the phrase "the Treaty of Union" at p. 18. And, much more recently, Brooke L.J. referred to "the Treaty of Union" in the course of his judgment in Reg. v. Manchester Stipendiary, ex parte Granada Television Ltd [1999] 2 W.L.R. 460, 468A-B. In The Laws of Scotland, Stair Memorial Encyclopaedia the Union Agreement has been listed as the "Treaty of Union between Scotland and England 1707" in its Table of Treaties and Conventions. There is therefore ample precedent for Lord Gray's use of the phrase in the question which he invited the House to refer to this Committee.

The effect of the Union Agreement

  Lord Gray's argument that the Bill would, if enacted, breach the provisions of the Treaty of Union is based upon the following five propositions. First, the Parliament of Scotland was entitled to impose conditions when in 1707 it transferred the power to legislate to the new Parliament of Great Britain. Secondly, the effect of the conditions which were imposed under the Union Agreement was to restrict the legislative power of that Parliament and of its successor, the United Kingdom Parliament. Thirdly, one of the conditions which was imposed was the right provided by Article XXII for Scotland to be represented in the House of Lords and the House of Commons. Fourthly, that right expresses a principle of representative government that has the same force today as it had in 1707. And fifthly, as the Bill, as amended on Report, would extinguish the right of Scotland to representation in the House of Lords in terms of Article XXII, it would be a breach of a fundamental condition of the Union for it to be enacted in these terms.

  Doubts have been expressed as to whether the Union Agreement ever had the status of a treaty in the sense in which that expression is used in international law and, if so, whether it can be said to have retained that status once the union took effect. Professor Sir Thomas Smith, Q.C. has been perhaps the leading contributor to this debate, although he himself was the first to acknowledge his debt to one of the most distinguished constitutional lawyers of his generation, Professor J.D.B. Mitchell of the University of Edinburgh: see the important paper which Professor Smith wrote on this subject, The Union of 1707 as Fundamental Law (1957) Public Law 99. In that paper he expressed the view that, although the Articles of Union agreed between the Commissioners could not be so regarded, the exchanged Acts of the two Parliaments did constitute a treaty jure gentium between Scotland and England. But, as the law of nations in international law is concerned only with states, and the states or kingdoms of Scotland and England ceased to exist on 1 May 1707, the Treaty became an executed, or spent, treaty on that date as by the merger the obligants under the treaty had ceased to exist. He referred in support of this view to Sir Hersch Lauterpacht's observation in Oppenheim's Peace, 8th edition, pp. 155-156: "A state ceases to be an international person when it ceases to exist . . . By voluntarily merging into another state, a state loses all its independence and becomes a mere part of another."

  Lord Murray has suggested that, upon closer analysis, the mutual incorporation of Scotland and England into Great Britain is not legally complete: The Anglo-Scottish Union, cit. supra. He refers to the recognition in Article XVIII that separate systems of public law would continue to exist after the union except as altered by the new Parliament - a process which clearly remains far from complete today and, following the devolution arrangements, seems unlikely ever to be completed - and to the preservation of the Scottish judicial system by Article XIX. But there is little support among the modern commentators for the view that the Union Agreement continues to have effect as a treaty in international law, and Mr. Keen Q.C. for Lord Gray did not seek to develop an argument along these lines. As Professor Mitchell has pointed out, for the purposes of law it is the Acts which must be looked at: Constitutional Law (2nd edition, 1968), p. 92. Mr. Keen's argument was based on the alternative proposition that, although the treaty was spent when Scotland and England ceased to exist as separate states upon their merger into the new state of Great Britain, the Union Agreement continues to have effect as fundamental law in that new state with the result that, in regard to certain provisions which were entrenched by that Agreement, the United Kingdom Parliament does not enjoy unlimited sovereignty.

  In his Short Commentary on the Law of Scotland (W. Green & Son, 1962), p. 55 Professor Smith proposed the following analysis of the documents by which the Union Agreement was constituted which encapsulates Mr. Keen' argument:

    "First, they constituted a treaty in international law between two sovereign states—the treaty being concluded not by the Parliaments, which did not exercise the prerogative treaty-making powers, but by Anne, Queen of Scotland, with Anne, Queen of England. This treaty, however, was executed on May 1, 1707, and can no longer be invoked qua treaty. Secondly, the respective Acts of the pre-Union Parliaments operated as ordinary legislation binding the subjects within the jurisdictions for which these Parliaments could competently legislate. Thirdly, the Union Agreement took effect as a skeletal, but nonetheless fundamental, written constitution for the new Kingdom of Great Britain when it came into being."

  The third proposition in this analysis is controversial. It can be supported by reference to the Institutional writers, to various judicial dicta and to other academic commentators. For the most part they take their stand on the high ground which is provided by Articles XVIII and XIX relating to the preservation of the laws of Scotland concerning private right and the Court of Session and by the Act for Securing the Protestant Religion and Presbyterian Church Government in Scotland 1707: A.P.S., xi, 402, c. 6: see Bankton's Institute, IV, 1, 16-19; Erskine's Institutes, I, 1, 4; Memorial by the Senators of the College of Justice to the House of Lords of 1807 concerning Article XIX of the Articles of Union, quoted by Professor J.D.B. Mitchell, Constitutional Law (2nd edition, 1968), p.73; Minister of Prestonkirk v. Heritors of Prestonkirk, 3rd February 1808, reported in Connell on Tithes, Vol. II, pp. 112-123 and Vol. III, Appendix No. CXVIII, per Lord Justice-Clerk Hope at pp. 310, 319-320 and Lord President Blair at p. 376. In MacCormick v. Lord Advocate, 1953 S.C. 396, Lord Advocate Clyde, who was later to become Lord President Clyde, expressly acknowledged on behalf of the Crown in the course of the argument that some provisions of the Treaty of Union were expressly made fundamental and unalterable and that Parliament could not legally repeal them, and Lord President Cooper followed the same line in his opinion at pp. 411-412.

  But Colin R. Munro has pointed out that the argument that the Union legislation enjoys a special status, so that the United Kingdom Parliament is unable to alter some of its more important terms, is difficult to sustain in the face of the evidence as to what Parliament has done without objection and in the absence of any positive indication, when objection has been taken, that the Scottish Courts would be willing to regard such issues as justiciable: The Union of 1707 and the British Constitution, Hume Papers on Public Policy, Vol. 2 No. 2 (1994), p. 89; see also Gibson v. Lord Advocate 1975 S.C. 136; Sillars v. Smith 1982 S.L.T. 539; Pringle, Petitioner 1991 S.L.T. 330; Murray v. Rogers 1992 S.L.T. 221; and Fraser v. MacCorquodale 1992 S.L.T. 229. The fact is that, as the last three cases which concerned the legality of the legislation that introduced the community charge or poll tax in Scotland one year in advance of its introduction in England amply demonstrate, the court has always been able to find another route for the disposal of the argument, making it unnecessary to resolve the question whether there was a breach of the Union Agreement. Professor A.W. Bradley and Professor K.D. Ewing, Constitutional and Administrative Law (12th edition, 1998), p. 80, also mention the theoretical and historical difficulties which are inherent in the argument that the Union Agreement has the character of fundamental law. But they acknowledge at pp. 82-83 that the character of the Anglo-Scottish Union does not make the idea of a constitutional jurisdiction vested in the Court of Session with appeal to the House of Lords inherently absurd, and they conclude that it cannot be demonstrated from existing precedents that under no circumstances could the basic rule of legislative supremacy be qualified by judicial decision.

  I do not think that this issue is one which the Committee needs to resolve. The matter is ultimately one for the courts to decide. It is sufficient for present purposes to say that, leaving aside the question whether or not it is right to regard the treaty as having been executed when the Union Agreement took effect on 1 May 1707 and the two states which had entered into the treaty went out of existence, the argument that the legislative powers of the new Parliament of Great Britain were subject to the restrictions expressed in the Union Agreement by which it was constituted cannot be dismissed as entirely fanciful. That is the reasoning which lies behind the question proposed by Lord Gray, because he maintains that the Parliament of Scotland did not intend the Parliament of Great Britain to be free to exclude the representation in the House of Lords which was granted by Article XXII. Thus the essential and underlying question which is before your Lordships is whether the Bill as amended on Report would, if enacted, breach the provisions of Article XXII of the Acts of Union of 1706 and 1707.

Article XXII

  One of the leading provisions of the Union Agreement is to be found in Article III which provided that the United Kingdom of Great Britain was to be "represented by one and the same Parliament to be stiled the Parliament of Great Britain". Article XXII is closely linked to it, as it made provision for those who were to sit in the House of Lords and in the House of Commons on the part of Scotland, for the meeting of the first Parliament of Great Britain, for the duration of that Parliament and for the Oaths which were to be taken by every member of each House. It is not necessary for present purposes to quote the whole of the Article. The parts of it which are relevant to the question which the Committee has to decide appear at the beginning in the first few paragraphs. They are in these terms:

    "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 Representatives of Scotland in the House of Commons of the Parliament of Great Britain; 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, Directed to the Privy Council of Scotland, Commanding 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 . . .

And that if Her Majesty, on or before the first day of May next, on which day the Union is to take place shall Declare under the Great Seal of England, That it is expedient, that the Lords of Parliament of England, and Commons of the present Parliament of England should be the Members of the respective Houses of the first Parliament of Great Britain for and on the part of England, then the said Lords of Parliament of England, and Commons of the present Parliament of England, shall be the members of the respective Houses of the first Parliament of Great Britain, for and on the part of England; And Her Majesty may by Her Royal Proclamation under the Great Seal of Great Britain, appoint the said first Parliament of Great Britain to Meet at such time and place as Her Majesty shall think fit; which time shall not be less than fifty days after the date of such Proclamation; And the time and place of the Meeting of such Parliament being so appointed, a Writ shall be immediately issued under the Great Seal of Great Britain, directed to the Privy Council of Scotland, for the summoning the Sixteen Peers, and for Electing forty five Members, by whom Scotland is to be Represented in the Parliament of Great Britain . . ."

  The following points fall to be noticed about these paragraphs of the Article. The first is that words of entrenchment, such as the phrase "do after the Union and notwithstanding thereof remain in all time coming" which is to be found in Article XIX regarding the Court of Session, are absent from Article XXII. This then is not one of those Articles which were expressly made fundamental and unalterable. The first paragraph, which identifies the number of peers and the number of members of the House of Commons who are to sit on the part of Scotland, reflects the fact that there was plainly a need for a decision to be taken about numbers. At the time of the union there were 154 peers of Scotland, whose population was one fifth of that of England, while there were only 168 peers of England. But it does not address the question whether those numbers were to be fixed in all time coming or were to be subject to alteration in the future and, if so, how that alteration was to be made. The second paragraph, on the other hand, expressly contemplates that the new Parliament of Great Britain would make further provision as to the summoning of the peers who were to sit in the House of Lords and the members elected to sit in the House of Commons.

  Taken as a whole, the purpose of the Article appears to have been this: first, to settle the number of peers of Scotland who were to sit with all the Lords of Parliament of England in the House of Lords; secondly, to settle the number of members who were to sit on the part of Scotland with the Commons of the existing Parliament of England in the House of Commons; and, thirdly, to make the necessary arrangements for the first meeting of the new Parliament of Great Britain.

  It seems unlikely that it was the intention of the Commissioners that the numbers mentioned in the first paragraph were to be treated as fixed in all time coming. Article XXIII, which deals with the privileges which the peers were to have in the Parliament, refers not only to the Sixteen Peers of Scotland and the Peers of England but also to Peers of Great Britain after the Union. So it is clear that it was envisaged from the outset that the composition of the House of Lords would change over time as new peers of Great Britain were created. Moreover it has never been suggested by any of the academic writers on this subject that the provisions of Article XXII regarding the right of the sixteen representative peers of Scotland to sit and vote in the House of Lords has the character of fundamental law. In his article on Fundamental Law in the Stair Memorial Encyclopaedia, Vol. 5, Constitutional Law (1987), para. 347 Professor Smith said that it seemed probable that the most likely issues to be tested in the context of fundamental provisions of the Union Agreement were in relation to the church, the courts and laws which concern private right. The most that can be said, as Professor J.D.B. Mitchell, Constitutional Law (2nd edition, 1968), p. 96 has explained, is that Article XXII gave effect to a basic principle of the Union that Scotland was to be assured of adequate representation in the Parliament of Great Britain.

  But this principle was not expressed anywhere in the Union Agreement. It lacks any words of enactment. I would find it difficult to regard it as having the character of fundamental law in these circumstances. The constraints imposed by this principle with regard to the alteration of the arrangements set out in the Article are best seen as a matter for political judgment, to be resolved from time to time according to the facts and circumstances.

  The second point which falls to be noticed about these paragraphs is that the wording of the Article is unclear as to whether the Peers of Scotland were to be elected to represent Scotland on the one hand or the peerage of Scotland on the other. The Minutes of the Parliament of Scotland for 7 January 1707 indicate that when Article XXII was being debated its purpose was seen as being to regulate the calling of "the Representatives from Scotland" to the Parliament of Great Britain and the way and manner of choosing "the Representatives of Scotland" who were to sit and vote that Parliament. The preamble to the Scottish Representative Peers Act 1707, 6 Anne c. 78, which was passed by the Parliament of Great Britain as envisaged by Article XXII to make further provision for the election and summoning of the Sixteen Peers, refers to "the Sixteen Peers and Forty five Members to represent Scotland in the Parliament of Great Britain". On the other hand, the Representative Peers (Scotland) Acts 1847 and 1851 refer to the election of the Sixteen Peers as being "to represent the Peerage of Scotland". As for the wording of Article XXII itself, in Earl of Antrim's Petition [1967] A.C. 691, 715 Lord Reid said that he did not find any very clear indication in the phraseology of the Acts of Union that the sixteen Scottish representative peers were to represent Scotland rather than the peerage of Scotland. The opening paragraph of Article XXII describes the sixteen as the number "of the Peers of Scotland" who were to sit and vote in the House of Lords. It uses the words "Representatives of Scotland" only in regard to the forty five who were to sit and vote in the House of Commons. The question whether the reference to those by whom Scotland was to be represented in the last paragraph of the passage quoted above applies to the sixteen as well as to the forty five can be answered either way, depending on the view one takes of the punctuation of that paragraph.

  On the whole it seems to me that the argument that the effect of the Union Agreement was that the peers of Scotland were to represent Scotland in the Parliament of Great Britain is less than convincing. I shall return to this point at a later stage in this opinion.

The repeal of Article XXII and its effect

  There is no doubt that it has been assumed ever since 1707 that the Parliament of Great Britain, and subsequently that of the United Kingdom, had power to alter or amend Article XXII. First, there were the Union with Scotland (Amendment) Act 1707 which abolished the Scottish Privy Council, the Scottish Representative Peers Act 1707 and the Representative Peers (Scotland) Acts of 1847 and 1851. Then there was an extensive body of legislation commencing with the Representation of the People (Scotland) Act 1832 which increased the number of Scottish Members of Parliament from 45 to 53 and set out the constituencies. As a result of subsequent legislation increasing their numbers and re-organising the constituencies the number of Scottish Members of Parliament has been increased to 72. Then there were the Promissory Oaths Acts of 1868 and 1871. And lastly, and for present purposes the most important, there were the Peerage Act 1963, the Statute Law Revision (Scotland) Act 1964 and the Statute Law (Repeals) Act 1993.

  Section 4 of the Peerage Act 1963 provides:

    "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 electing of Scottish representative peers shall cease to have effect."

  Schedule 2 to the 1963 Act includes among the enactments which were repealed by that Act the Union with Scotland Act 1706, 6 Anne c.11, and the Act of the Parliament of Scotland ratifying and approving the Treaty of Union of the two Kingdoms of Scotland and England 1707, c. 7. The extent of the repeal in each case is given in the Schedule as "Article XXII of the Treaty of Union so far as that Article relates to peers of Scotland; and Article XXIII of that Treaty except the words from `that all peers of Scotland' to `enjoy the same'." The Statute Law Revision (Scotland) Act 1964 took this process one step further. The whole of Article XXII was repealed by that Act, which listed this Article of the Act of 1707 as one of the provisions of the Acts of the Parliaments of Scotland which, in terms of section 1 of the Act, "are obsolete, spent or unnecessary or have been superseded by other enactments". The Statute Law (Repeals) Act 1993 contains a corresponding repeal of Article XXII in the Union with Scotland Act 1706.

  The conclusion which must be drawn from these various enactments, as Mr. Hodge Q.C. for the Government pointed out, is that the right of the peers of Scotland to sit and vote in the House now depends entirely upon section 4 of the Peerage Act 1963, and that Article XXII of each of the two Acts which constituted the Union Agreement has been repealed. Mr. Keen for Lord Gray submitted that it was ultra vires of Parliament to repeal Article XXII. But I do not think that it is open to us in this Committee to take that view, for the following reasons. First, there is the doctrine of sovereignty of Parliament. Whatever view a court might form on the matter, as to which I express no opinion, I do not think that it is open to this Committee to question the extent and application of the doctrine of sovereignty. Secondly, for the reasons already given, I consider that article XXII lacks the character of fundamental law, which is an essential prerequisite for the argument that Parliament went out with its powers when it enacted these repeals.

Other considerations

  There are however a number of other substantial reasons for rejecting the argument that the House of Lords Bill would breach the provisions of Article XXII of the Union Agreement. They all concern, in one way or another, the issue of representation which in the end of the day lies at the heart of Lord Gray's argument.

  It is first necessary to consider the meaning of the word "representation" in this context. In the context of the work of the legislature it is the representation of the people of Scotland as a whole that is in issue—of their rights, interests and aspirations. It is not acceptable, when one talks of the principle that Scotland should be represented in the new Parliament, to discriminate between one class or group of people and another. So it will not be enough, if Lord Gray's argument is to succeed, for it to be shown that the sixteen representative peers of Scotland were to sit and vote in the House of Lords on behalf of the peerage of Scotland. It must be shown that the function of the sixteen representative peers was to represent the people of Scotland as a whole in this House.

  Prior to the Union of 1707 the Scottish Parliament, which had only one chamber, consisted of three estates: the bishops, the nobility and the burgesses: Stair Memorial Encyclopaedia, vol. 16 (1995), Peerages, para. 1306. After the episcopacy was abolished in 1689, the titled nobility or peerage constituted an estate by themselves, distinct from that which consisted of the commissioners of the shires who represented the lesser baronage. The structure and traditions of that Parliament were such that it would be impossible to assert that the peerage sat in that assembly as representatives of the people of Scotland or that they were there on behalf of any interest other than their own.

  The entry into an incorporating union with England in which there was to be a new Parliament of two Houses according to the pattern of the English Parliament meant that a new arrangement had to be devised. It was never in doubt that, as members of the nobility, the peers of Scotland would sit not in the House of Commons but in the House of Lords, and that they would sit there together with the peers of England and any peers of Great Britain who might, as Article XXIII envisaged, be created after the Union. In that sense the sixteen representative peers were to sit "on the part of Scotland" in your Lordships' House. They were to constitute the Scottish element in the House of Lords when the new Parliament of Great Britain came into existence. But it is less obvious that the sixteen peers of Scotland were to represent the people of Scotland as a whole when they sat and voted in the House and, if so, whether this was to be a permanent arrangement to ensure Scotland's representation there.

  Several factors, when taken together, indicate that the better view is that the function of the Scottish representative peers in the House of Lords was to represent the peerage of Scotland in the new Parliament. Two features of the arrangement which were present from the outset seem to me to favour that view. The first is the absence of any residence or any other qualification to ensure that each of the representative peers had a continuing connection with Scotland, in addition to their membership of the peerage of Scotland, so as to equip them for the task of representing the people of Scotland. One of the most obvious consequences of the Union was the opening up of the border in order to establish a common market between the two countries. It must have been anticipated that some at least of the Scottish peers would be likely to move south and establish themselves in England and that, in doing so, they might relinquish their links with Scotland. Yet the process which was set up for the election of the sixteen representative peers made no provision to ensure that only those who remained in Scotland or who retained estates in Scotland would be eligible.

  The second is that it was understood from the outset that all new peerages created after the Union would be as peers of Great Britain. This was bound to have the result that the relative importance of the peers of Scotland as against that of all other peers would diminish over time. Yet no provision was made in the Union Agreement to enable the balance to be restored in favour of Scotland as time went on by increasing the number of Scottish representative peers. The absence of any such arrangement suggests that the function of the sixteen Scottish representative peers was to represent the peerage of Scotland in the House of Lords in due proportion to the peerage of England in this House, and that it was assumed for the future that, as all new peerages would be of Great Britain and thus drawn from both countries, no further adjustment would be necessary.

  So far as the people of Scotland and their representation in the new Parliament of Great Britain was concerned, therefore, this is to be found in the arrangements that representatives of Scotland were to sit in the House of Commons. The opening words of Article XXII support this approach, as those who were to sit in the House of Lords are described there as "the Peers of Scotland". The expression "the Representatives of Scotland" is used to describe those who were to sit in the other place. Furthermore, as it is part of Lord Gray's argument that the principle of representation has the same force today as it had in 1707, it is proper to take into account the changes which have affected our Parliamentary system since that date. The important reforms which were introduced in 1832 and the introduction during this century of the principle of universal suffrage have served greatly to reinforce the argument that the principle of representation is satisfied by the election of Members of the House of Commons by voters in the Scottish constituencies. It is true that no condition of residence must be satisfied to entitle a member of the other place to represent a Scottish constituency. But the connection between each member and the constituency by which he or she has been elected is, for sound practical reasons, a substantial and continuing one. Furthermore the adjustments as to the relative functions of the two Houses following the Parliament Acts have strengthened still further the position of the House of Commons as the representative House of Parliament based on its universal democratic mandate. In the light of these developments the idea that the peers of Scotland still have a mandate under Article XXII to sit and vote in the House of Lords on behalf of the people of Scotland seems now to be quite out of touch with reality.

  It should also be noted that in practice many of those hereditary peers whose peerages were created after 1707, and those who have been made life peers under the Appellate Jurisdiction Act 1876 and the Life Peerages Act 1958, regard themselves as Scottish peers because they live in Scotland or have other important and continuing connections with that country. Therein lies the significance of the fact that the Bill, as amended on Report, does not discriminate against the peers of Scotland or Scottish peers generally but applies equally to all hereditary peers. Those hereditary peers having connections with Scotland, including peers of Scotland, who are excepted from Clause 1 under clause 2 of the Bill together with the Scottish life peers will continue to take an interest in Scottish affairs and thus, in a practical way, to represent the interests of Scotland in your Lordships' House. So there is no reason to think that the ending of the right of the peers of Scotland to sit and vote in the House will deprive Scotland of a continuing and effective representation in this part of the legislature.

  Nothing that I have said in the preceding paragraphs is intended to cast doubt on the valuable contribution which the peers of Scotland have made to the work of the House on matters affecting Scotland over so many years. That however is not the issue before this Committee. The answer to the question which is before us does not depend upon an analysis of the importance of their contribution, or of the effect upon the discussion of issues affecting Scotland of the removal from the peers of Scotland of their right to sit and vote in the House. Its answer must be found in the questions of law which I have discussed, and for the reasons which I have given I consider that the question before the Committee must be answered in the negative.


 
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