Case for the Lord Gray
1. The House of Lords has referred to the
Committee for Privileges the question 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.
2. The issues that are or may be raised,
are set out in the Statement of Facts and Issues.
3. The primary issue is whether the Bill
would breach Article XXII of the Treaty as enacted in the Union
with England Act 1707 and the Union with Scotland Act 1706.
4. The position of HM Government with respect
to this issue was set out on 22 June 1999 during the consideration
of amendments on the Report of the House on the House of Lords
Bill (602 HL Debs col 885). It was then suggested that Article
XXII of the Treaty of Union "explicitly envisaged that
the Parliament of Great Britain could amend or change the number
both of the Peers of Scotland and of the representatives of Scotland
who could sit in this House".
5. It is submitted, for the reasons hereinafter
set out, that the position of HM Government is rested upon an
erroneous interpretation of the wording of Article XXII of the
Treaty of Union.
6. It is material to the status of Article
XXII to ask this question:
While the Union of 1707 endures, may Parliament
lawfully enact that all Members of Parliament returned by Scottish
constituencies, and all Peers of Scotland, shall henceforth be
excluded from Parliament?
7. It is submitted that the answer is "No",
for these reasons:
(i) The Parliament of Scotland was entitled
to impose conditions when in 1707 it transferred power to the
Parliament of Great Britain;
(ii) The Parliament of Scotland did impose
conditions when in 1707 it transferred power to the Parliament
of Great Britain;
(iii) One condition imposed by the Parliament
of Scotland was the right provided by Article XXII for Scotland
to be represented in the House of Lords and in the House of Commons;
(iv) That right expresses a principle of
representative Government that has the same force today that it
had in 1707; and
(v) The terms of Article XXII do not explicitly
envisage that the Parliament of Great Britain could remove the
right of Scotland to be represented in the House of Lords.
8. In 1707 the Parliament of Scotland passed
the Act of Union with England (APS XI, 406, c 7), and the
Parliament of England passed the Act of Union with Scotland (6
Ann, c 11). The Acts give effect to the international Treaty
of Union the terms of which had been settled in July 1706, between
Commissioners appointed by the two kingdoms to negotiate a Union.
9. By virtue of the Personal Union of 1603,
Queen Anne held both the Crown of Scotland and the Crown of England.
The negotiation of the Legislative Union had its origin in 1705,
when the Parliament of Scotland passed an Act authorising the
Sovereign to appoint Scots Commissioners, and the Parliament of
England likewise passed an Act authorising Her Majesty to appoint
English Commissioners, so that the Commissioners might meet and
negotiate a Union (APS XI, 295, c 50, and 3 & 4 Ann,
10. The Scots Commissioners were nominated
by the Crown in February 1706, as were the English Commissioners
in April of that year. In the same month, the Commissioners began
their proceedings in London which concluded in July, 1706 with
agreement upon 25 Articles of Union. Upon jointly presenting the
Articles to the Queen, the senior English Commissioner, the Lord
Keeper of England, described them as "the Terms, or Conditions
upon which the intended Union is to take place". The senior
Scottish Commissioner, the Lord Chancellor of Scotland, described
them as "the Articles and Conditions of Union which we have
treated of and agreed upon" (The Minutes of the Proceedings
of the Commissioners appointed to treat for an Union betwixt the
Kingdoms of Scotland and England, APS XI, 162 at page 191).
11. The Queen then recommended the Articles
to the Parliament of Scotland, by whom they were first considered,
before their passage through the Parliament of England.
12. The Articles were debated in the Scottish
Parliament at Edinburgh between 3 October 1706 and 16 January
1707. On the latter date they received the Royal Assent as the
Act of Union with England. On 16 January 1707, Royal Assent was
also given to an Act for the security of the Church of Scotland
(the Protestant Religion and Presbyterian Church Act 1707, c
6, APS XI, 402), which was incorporated into the Act of Union
13. In England, Parliamentary consideration
of the Articles of Union began with the Queen's Speech to both
Houses of Parliament at Westminster on 28 January, and concluded
with the Royal Assent on 6 March 1707. The resulting Act of Union
with Scotland incorporated and approved the terms of the Protestant
Religion and Presbyterian Church Act.
14. The Scots and English Acts of Union
thus give effect to the constitutional agreement reached by the
Commissioners and ratified by the two Parliaments. The ordinary
principles of construction require that, unless it is impossible
to do so, the agreement as a whole and its express terms should
be given effective content.
15. It was within the power of the Parliament
of Scotland to qualify the legislative authority that it was giving
to the new Parliament; it is only contingent that an instrument
that creates a new legislature empowers that new legislature to
amend the instrument itself. The Parliament of Scotland did qualify
the authority that it was giving to the Parliament of Great Britain.
This can be clearly discerned to have been the legislative intention
of the Parliament of Scotland. It can be found in the Articles
of Union. It has been acknowledged in the Parliament of Great
Britain, and has been the subject of judicial and extra-judicial
16. The Articles disclose an intention that
some provisions should be alterable by the Parliament of Great
Britain, and that some provisions should not be alterable by the
new Parliament; e.g., Article XIX with respect to the Court of
17. It was not explicitly envisaged that
the provisions of Article XXII with respect to the entitlement
of Scotland to be represented in the House of Lords and in the
House of Commons would be alterable by the Parliament of Great
18. The intention of the Parliament of Scotland
that some matters should not be alterable by the Parliament of
Great Britain is reflected in the Minutes of the Proceedings of
the Parliament of Scotland. For example:
(i) In respect of Article XIV, and the exemption
of Scotland from a tax on malt, the Minutes for 5 December 1706,
record that "after some further Debate, The Vote was stated,
"Whether the Exemption from any Imposition on Malt shall
be Temporary or Perpetual". Then the vote was put, . . .
and it carried "Temporary".
Thereafter, it was proposed, that the Exemption
shall be during this present War.
It was also proposed, that the exemption shall
be for a longer time. And after debate thereon, the vote was stated,
"Whether the exemption . . . shall be during this present
war, or for a longer time", and it carried "During this
(ii) The Minutes for 3 January 1707 record
a vote on whether, in Article XIX, the qualifications to be a
Lord of Session "`shall be alterable by the Parliament of
Great-Britain'; And after debate, it was put to the Vote, `Alterable'
or `not', and it carried `Alterable'".
19. Daniel Defoe was present during the
proceedings in the Scots Parliament, and in 1712 published a record
of the debates, interleaved with the official Minutes, in his
History of the Union. On 6 December 1706 the Scottish Parliament
continued to debate Article XIV, and Defoe records that:
"The debate of this day ran only upon the
affair mentioned before, viz Whether they should depend upon the
British Parliament maintaining a just and equal regard to the
good of the whole united island after the Union . . . or whether
they should pin them down in all time coming, that no other burdens
or taxes should be laid on than those already mentioned".
(History of the Union between England and
Scotland, 3rd edtn London, John Stockdale, 1786).
20. In respect of the earlier debate on
Article III, on 18 November 1706, Defoe records that:
To this it was answered, That the British Parliament
were absolutely bound up by the stipulations of this treaty; that
they being a subsequent power to the two respective Parliaments
of either kingdom, had no other or farther power to act than was
limited to them by the stipulations of both kingdoms . . . That
the Parliament of Britain, being the creature of the Union, formed
by express stipulations between the two separate Parliaments of
England and Scotland, cannot but be unalterably bound by the conditions
so stipulated, and upon which it received its being, name and
authority." (op cit).
21. Five years after the Union, Cobbett's
Parliamentary History records that, in the House of Lords
on 18 January 1712:
"The Court proposed that an expedient might
be found that the Peers of Scotland should not sit among them
by election, but by descent, in case the rest of the Peers of
that nation should consent to it. A debate followed concerning
the Articles of Union, which of them were fundamental and not
alterable; it was said, that by the Union no private right could
be taken away, but by the consent of the persons concerned; therefore
no alteration could be made in the right of the Peers of Scotland,
unless they consented to it". (Cobbett's Parliamentary
History of England, vol 6 (1702-1724)).
22. Of the Institutional writers, in 1752
Lord Bankton wrote that
"The supreme and legislative powers of two
nations, by it [sc, the Union] are transfused and united into
one common sovereignty"; but also that "The reservation
of their respective laws, touching private right . . . was most
necessary . . . by the treaty of union, our laws . . . concerning
private right are not to be altered, but for the evident utility
of the subjects within Scotland . . . Presbyterian church-government,
is secured to us by a separate act of parliament. As . . . Episcopal
government . . . in England by an act of their Parliament; both
which acts are declared to be fundamental articles of the union."
"By the union likewise, all our courts of
justice remain inviolate as before, except the privy-council .
. . and the court of exchequer . . ." (Institute,
23. Similarly Erskine (writing before 1768)
acknowledges Parliamentary sovereignty as a general principle
(Institutes, I, 1, 19 and I, 3, 8), but at the same time
"it must be observed, that nothwithstanding
the Treaty of Union in 1707, by which the kingdoms of England
and Scotland were made one nation, under one king and one parliament,
all the laws of Scotland concerning private right, whether statutory
or customary, are reserved entire, not to suffer any alteration,
but for the evident utility of the subject." (Institutes,
I, 1, 4).
24. In 1873 the Supreme Court of Appeal
Bill to create an Imperial Court of Appeal was replaced by the
Supreme Court of Judicature Bill in the face of the objection
that the former was inconsistent with the prohibition on appeals
from Scotland to the Courts in Westminster Hall in Article XIX
of the Act of Union; 210 HL Deb 1990 (30 April 1872); 214 HL Deb
1738 (11 March 1873).
25. Judicial opinion is apparent from
(i) The Memorial by the Senators of the College
of Justice to the House of Lords of 1807 concerning Article XIX
of the Articles of Union. The full text is in Laing MSS, Add 4/7,
but is quoted by JDB Mitchell, Constitutional Law (2nd
edition, 1968), page 73:
"We are of opinion that on fair bona
fide construction, as between two independent nations, it
cannot be held to have been in the contemplation of either, that
any law should, in future times, be considered as merely a regulation
for the better administration of justice which goes to subvert
the supreme jurisdication of the Court of Session, and to render
it subordinate to a new court, unknown to our ancestors".
(ii) In the case of Minister of Prestonkirk
v Heritors of Prestonkirk, 3 February 1808 (reported in Connell
on Tithes, Vol II, pages 112-123 and Vol III, Appendix
No CXVIII, page 310; affirmed by the House of Lords, 20 May, 1808
(Connell, Vol II, pages 122-123)), a Court of Thirteen Judges,
sitting as the Court of Teinds, was satisfied that there were
certain fundamental provisions of the Articles of Union which
were not alterable by Parliament.
(iii) In Earl of Kinnoull v Presbytery
of Auchterarder (The Auchterarder Case) (1838) 16 S 661 Lord
Moncrieff said that a breach of the ecclesiastical provisions
of the Union would be a direct breach of what was fundamental
and essential in the political state of the United Kingdom.
(iv) In the case of Laughland v Wansborough
Paper Co Ltd (1921) I SLT 341, the Court appears to have been
entirely satisfied that a statute might be invalid if it breached
Article XVIII of the Articles of Union.
(v) In the case of MacCormick v Lord Advocate,
1953 SC 396 (First Division), the Lord Advocate, Lord Clyde, on
behalf of the Crown expressly acknowledged that there were fundamental
and unalterable provisions of the Articles of Union which Parliament
could not legally repeal.
(vi) This is a matter in respect of which
the Court have in later cases consistently reserved their opinions;
Gibson v Lord Advocate, 1975 SC 136, per
Lord Keith; Pringle, Petitioner, 1991 SLT 330, per
Lord President Hope.
26. The Articles of Union should be interpreted
in the flexibile manner appropriate to constitutional interpretation.
However, as Lord Sankey LC observed in Re the Regulation and
Control of Aeronautics in Canada (1932) AC 54 at 70:
"The process of interpretation as the years
go on ought not to be allowed to dim or whittle down the provisions
of the original contract upon which the federation was founded,
nor is it legitimate that any judicial construction of the provisions
of ss 91 and 92 should impose a new and different contract upon,
the federating bodies."
27. The Union of Scotland and England was
founded upon the agreement expressed in the Articles of Union.
The agreement qualified the legislative power of the Parliament
of Great Britain with respect to the Articles of Union. The Parliament
of the United Kingdom of Great Britain and Northern Ireland can
have no greater power than its author the Parliament of Great
28. Given that certain provisions in the
Articles were alterable by the Parliament of Great Britain, while
others are conditions of the Union, enacted to endure so long
as the Union endures, the question arises of the particular status
of Article XXII.
29. Article III of the Articles of Union
transferred authority to legislate for Scotland from the Parliament
of Scotland to the Parliament of Great Britain. Article XXII provided
that, in the new Parliament, Scotland would be represented in
the House of Commons and in the House of Lords.
30. It is apparent from the purpose of Article
XXII that the Parliament of Scotland did not intend the Parliament
of Great Britain to be able to alter it so as to remove Scotland's
representation. The numbers of Scots Peers and members had been
the subject of detailed negotiation by the Commissioners. Those
negotiations, and the debates upon their enactment into law by
the Scottish Parliament would have been rendered otiose had it
been granting the new Parliament power to remove Scotland's representation.
31. The first three Articles of Union contain
the essentials of the Union; the union of the two Kingdoms, Crowns,
and Parliaments. The purpose of the bulk of the following 22 Articles
is to protect Scottish interests. The comparative absence of a
perceived need to protect English interests is as apparent from
the Articles' silence on the point as it was from England's greater
size, population and wealth. Amongst the conditions inserted in
Scotland's favour, Article XXII had and has unique importance.
That is because a continuing right to representation in the Parliaments
of Great Britain and the United Kingdom is the sole guarantee
that representatives of Scotland may participate in the passage
of legislation on all of the matters over which Parliament has,
by virtue of Article III, authority to legislate for Scotland.
Indeed, as Lord Bankton observed (Institute, IV, 1,18), Article
XXII is almost the only provision by which England allowed any
alteration to its law and custom. The singular importance of Article
XXII is that its absence from the Articles would have reduced
Scotland to the position of a dependent territory.
32. The proposition that is being advanced
may be tested thus:
Was it intended by the Parliament of Scotland
when it enacted Article XXII, that immediately after 1 May 1707,
the new Parliament of Great Britain would be entitled to enact
that all Members of Parliament returned by Scottish constituencies,
and all Peers of Scotland, should henceforth be excluded from
To attribute to the Scottish legislators and
the words of Article XXII such a statutory intention is, to say
the least, highly improbable.
33. It follows that the reason why the House
of Lords Bill would, if enacted, breach the Act of Union, is because
it would infringe Scotland's right to representation in the House
of Lords. The fact that the Bill grants discretionary powers that
might be exercised so as to admit 16 peers from Scotland is irrelevant;
if Article XXII gave Scotland an entitlement; it is no answer
to say that that entitlement is fulfilled by a discretion that
might, or might not, be exercised in Scotland's favour.
34. It does not follow that the legislators
intended every word of Article XXII to be absolutely or perpetually
unalterable, or that that is the proper construction to be put
upon it. It is clearly the case that some of its provisions should
be alterable; for example, the passage from the words "And
that when Her Majesty . . ." to the end of the Article;
which was redundant once the Parliament of Great Britain had been
held and the Privy Council of Scotland abolished. This was recognised
by Parliament in the partial repeal of Article XXII by the Statute
Law Revision (Scotland) Act 1906 (6 Edw 7, c 38).
35. In respect of the opening words of the
Article a proper construction is one that preserves its content
so far as is consistent with the need for the constitution to
evolve as the nation evolves.
36. Applying the foregoing to Article XXII,
two points emerge:
Firstly, its purpose so far as Scotland is concerned
is to secure representation for Scotland in the Upper House. Such
need for that as there was in 1707, necessarily remains unchanged,
so long as (a) the Kingdoms of Scotland and England continue to
be acknowledged by the law to be distinct entities, and (b) the
House of Lords continues to have a function in the passage of
legislation for Scotland.
Secondly, the drawing of those representatives
from the hereditary peerage always had the potential to become
inconsistent with a changing society. Whilst any need for Scottish
participation in the legislative mechanism necessarily endures
unaltered so long as the Union endures, that might not be said
of the rights of the hereditary peerage.
37. It is thus evident on the face of Article
XXII that its provision for a hereditary element was contingent
upon the politics of the day, whereas the need in 1707 for a minimum
level of Scottish representations in both Houses of Parliament
remains unchanged as long as the Union endures.
38. Article XXII provided for hereditary
peers of Scotland to sit in the House of Lords because at that
time only Bishops and hereditary peers sat in the House. In Scotland
the established Kirk had no Bishops,so there was no question of
Scottish Lords spiritual. It followed that the Scots who would
sit in the House were drawn from the hereditary peerage.
39. Since 1707 the criteria for selecting
those to sit in the House have evolved. It is not suggested that
Article XXII should be construed as preventing such evolution.
40. What has not changed since 1707which
the legislators of 1707 could see would not changeis that
as long as the Union endures, Scotland has an interest in a guarantee
of representation in both Houses of the United Kingdom Parliament.
The Union legislation provides provision with respect to the House
of Lords that sixteen persons should sit "on the part of
Scotland" (Election Act 1707; Report from the Committee
for Privileges in the Petition of the Earl of Antrim and Others,
1966, per Lord Reid of Drem at page 66).
41. Article XXII can straightforwardly be
construed to have the flexibility needed for the development of
constitutional government, while also securing its central purpose;
it requires that Scotland has the right to representation in the
House of Lords.
42. It follows that there would be no breach
of the principle of representation in Article XXII, if the Bill
provided that sixteen seats would remain reserved for Scotland.
43. For so long he sits in this House, Lord
Gray is entitled to maintain that he is one of a class of Peers,
of whom no fewer than sixteen are entitled to sit in fulfilment
of Scotland's constitutional right, unless and until another criterion
is provided for selecting those who shall sit in virtue of Scotland's
right of representation. In the absence of any provision for what
shall come in place of the present arrangements for the representation
of Scotland the Bill would, if enacted, be a breach of the Articles
44. A construction of the Act of Union that
is impractical or unreasonable should be avoided. It is not, however,
impractical or unreasonable that a constitutional measure should
provide an unalterable protection for the principle of representation
in the legislature. Eg, in the constitution of the Federal Republic
of Germany, the Grundgesetz, article 79(3) prohibits amendment
to Articles 1 and 20. Article 20(1) and (2) guarantee the representative,
democratic nature of the German legislature. It is wholly consistent
with constitutional principle and legal policy that a smaller
nation entering into a Union with a larger nation should have
a right, unalterable so long as that union lasts, to a minimum
level of representation in the united legislature.
45. The Articles of Union are the conditions
of the Anglo-Scottish Union. They were referred to as such at
the time of their enactment. They are not a perpetual restraint
on Parliament. They are the conditions of the present Union, which
was created by Article I. If the Union is dissolved, the conditions
in the Articles cease to have effect.
46. The United Kingdom Parliament can dissolve
the Union. Article I is not entrenched. That is apparent (1) because
the Articles only bind Parliament as conditions of the Union established
by Article I; and (2) because it would be contrary to common sense
to argue that the English and Scottish peoples could never by
a lawful route democratically decide upon independence from one
47. Comparison with membership of the European
Union is apt. So long as the European Communities Act 1972 is
in force, the conditions of membership of the European Union fetter
Parliament's legislative powers (R v Secretary of State for
Transport, ex parte Factortame Ltd  2 AC 85 (HL); 
1 AC 603 (ECJ and HL)). The effect of European Union law is that
Parliament cannot legislate inconsistently with the EC treaty,
short of the United Kingdom leaving the Union by Act of Parliament.
48. There is a constitutional route to reform
of the Articles. It is the explicit dissolution of the Union by
an Act of Parliament repealing Article I. What would follow would
be a situation which is familiar to Parliament, because it has
granted independence to many other territories for which it formerly
49. Absent an express repeal of Article
III, the United Kingdom Parliament would retain authority to legislate
for England and Scotland after the dissolution of the Union. It
would of necessity have to have and exercise that authority, so
as to legislate for what should replace it. In this way Section
1 of the Canada Act 1982 (c11) provided a constitution
for Canada in place of Parliament's former sovereignty over that
country, which Section 2 extinguished.
50. This has already happened in the United
Kingdom. The effect of the Irish Free State (Agreement) Act 1922
was to dissolve the Kingdom of Ireland which had entered into
the Union of 1801 with Great Britain (Petition of the Earl
of Antrim and Others, supra, per Lord Reid of Drem). The effect
was not, however, to extinguish this Parliament's authority to
legislate for Ireland.
51. Article I of the Union of England and
Scotland, and the conditions attached thereto, can both be repealed.
In enacting such a repeal, Parliament would inevitably make provision
for the constitutional position thereafter. This could involve
the independence of the two countries or the settlement of the
terms of a new Union of the two countries.
52. Section 4 of the Peerage Act 1963 (c.48)
provided that all of the Peers of Scotland should have the right
to sit in the House of Lords. Schedule I to the Act purported
to repeal Article XXII in consequence of that provision.
53. There is no reason why Scotland's representation
should not be thus have been increased. That was not in conflict
with the essential requirements of Article XXII. However the purported
repeal of Article XXII in consequence of the provisions of the
1963 Act not only went further than was necessary for the purposes
of the 1963 Act, but was ultra vires.
54. In the circumstances Lord Gray respectfully
submits that the question which the House has referred to the
Committee should be answered in the affirmative. In doing so Lord
Gray relies on the following among other:
1. Because when the Parliament of Scotland
transferred power to the Parliament of Great Britain it was possible
for it to impose restrictions on that power as a condition of
2. Because the Parliament of Scotland did
not intend the Parliament of Great Britain to be free to exclude
the representation granted to Scotland by Article XXII.
3. Because the present Parliament of the
United Kingdom of Great Britain and Northern Ireland has no greater
power than its author, the Parliament of Great Britain.
4. Because the House of Lords Bill, as amended
on Report, would if enacted extinguish the right of Scotland to
representation in the House of Lords in terms of the Articles
5. Because the Bill, as amended, would purport
to repeal a fundamental condition of the Union without dissolving
6. Because the Bill, as amended, would not
provide Scotland with a right to representation in the House of
7. Because when the Parliament of the United
Kingdom of Great Britain and Northern Ireland passed the Peerage
Act 1963 it had no power to repeal Article XXII to the extent
of denying Scotland the right to representation in the House of
Richard S Keen, QC
Michael G J Upton, Advocate