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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