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The Lord Chancellor: Perhaps we should address that matter when Amendment No. 121 is arrived at.

Lord Mackay of Ardbrecknish: We have had an interesting debate. At the risk of crossing swords with the noble and learned Lord the Lord Chancellor, I do not believe that these are arcane points. They are important. Equally, I do not believe that government Ministers, certainly in the past, took the attitude, "Even if we are wrong, it does not matter. We will make the issue clear from a Pepper v. Hart point of view and the courts will know what we mean the legislation to do and not what it says it does."

I make no apology for the amendment being brought before the Committee. The Government do not believe that it is necessary. That is fine. That is their view. It is your Lordships' right to question the detail of legislation and ask whether it does what the Government want it to do. I do not take the criticisms made earlier by some Government Back-Benchers that somehow or other that is an odd position for the Opposition to adopt. It has been the position not only of oppositions but also of Members on all sides to probe the Government and ask whether they have a clause or part of a Bill absolutely correct. We may not agree about the principles or objectives, but what is said on the face of the Bill should be totally consistent with what the Government want.

We all know what the Government want. At one stage, I wondered whether the Government should introduce a Bill which says, "The law will be whatever it says in the manifesto." I congratulate the noble and learned Lord the Lord Chancellor for not introducing the manifesto.

Noble Lords: He did; he did.

Lord Mackay of Ardbrecknish: Oh, did he? I am sorry. I must have been too busy trying to write a note about something he said previously. I do not know whether the manifesto is a document which will hold up in court. I think possibly not.

First, I should apologise for calling Mr. John Lofthouse a QC. I understand that in legal circles such matters are extremely important. I do not know about that; it is what I am told.

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I am not sure what the noble Lord, Lord Goodhart, brought to the party, so to speak, apart from--I hope I recorded it accurately--the tradition of the Bar writing a note which leads from a correct premise to a wholly fantastic conclusion. I am not in a position to argue about that. The noble Lord will know all about it. I wonder whether his clients know that that is in the tradition of the Bar.

Lord Goodhart: I have written many such opinions myself.

Lord Mackay of Ardbrecknish: Far be it from me to make any further comment. Our proposed new clause and Clause 4(2) work together. I find it odd that in Clause 1 the Government do not mention a Writ of Summons and yet in Clause 4(2) they home in on the Writ of Summons. From a layman's point of view, which I realise will fall far below the standards of the parliamentary draftsman, it seems to me that instead of bringing in the Writ of Summons Clause 4(2) could simply provide that anyone who claims membership of the House of Lords by virtue of a hereditary peerage shall not be a Member after that Session. Why is the Writ of Summons brought in in Clause 4(2) and yet it is not felt necessary to bring it in at the beginning? It seems to me that the noble and learned Lord the Lord Chancellor did not answer that question.

As my noble friend Lord Glenarthur pointed out, the noble and learned Lord did not answer the point made by the noble and learned Lord, Lord Jauncey, about the view of Lord Cranworth that what gives every noble Lord his right to sit here is not his Patent of Nobility but the Writ of Summons which he is entitled to in consequence of that Patent.

I do not wish to deal further with the argument. We have established from the noble and learned Lord the Lord Chancellor an extremely clear view which he has stated definitively, perhaps with a view to Pepper v. Hart, as regards the Government's intentions, almost regardless of what appears on the face of the Bill. We shall obviously study that with care.

I remember listening to an explanation from the noble and learned Lord, Lord Simon of Glaisdale, about the distinctions in court parlance between "with respect", "with the utmost respect" and "with the greatest respect". The more superlatives you used, the more rubbishy you thought the arguments were. I merely say, with, I think, great respect, that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Exclusion of hereditary peers]:

Lord Gray moved Amendment No. 11:

Page 1, line 5, at beginning insert ("Subject to section (Peers of Scotland)")

The noble Lord said: Amendment No. 11 is a paving amendment for Amendment No. 50 and Amendment No. 65 is consequential--

The Minister of State, Home Office (Lord Williams of Mostyn): Because of the movement and noise, it is impossible for us to hear, on all sides of the

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Committee, what the noble Lord is saying. That is not fair to the noble Lord and it is not helpful to the Committee.

Lord Gray: I am grateful to the noble Lord, Lord Williams of Mostyn. I shall recommence. Amendment No. 11 is a paving amendment for Amendment No. 50 and Amendment No. 65 is consequential. I hope that we are entering quieter and calmer waters than we have enjoyed in the last debate. This debate certainly promises to be less erudite.

The issue on which I now ask the Committee to focus is that of Scottish representation in the interim House. We have been much concerned with the generality of the Bill and its constitutional consequences. Here, in these amendments, we encounter an aspect which has a specific impact on the constitutional settlement, an impact on the Treaty of the Union.

On Second Reading, my noble friend Lord Reay reminded the House that from the Union of the Parliaments until 1963 Scotland was represented in your Lordships' House by 16 elected Peers. For noble Lords who may be unfamiliar with that representative peer scheme, I shall explain it in outline only because it is the source from which my amendments stem.

While various enactments over the years dealt with detail, the principle of elected representation was enshrined in the Treaty of Union. Article XXII of the Acts of Union established the basis for representation of Scotland in the Westminster Parliament. That article laid down that that representation should include 16 of the Peers of Scotland, with the words:

    "16 shall be the number to sit and vote in the House of Lords".

Further, it expressly stated that they were to represent Scotland, with the words:

    "by whom Scotland is to be represented". They were elected to represent Scotland, not themselves, as other hereditary Peers did and do.

Those who stood for election by their fellows were Peers of Scotland only, while the electorate included, additionally, those Peers of Scotland who also held dignities in the peerage of England, and later on, in the peerages of Great Britain and the United Kingdom. Election was for the duration of a single parliament and, when necessary, by-elections were held. Election was by open ballot and after each election this House was notified of the result. The list of those chosen was read out here, after which the representative Peers could take their seats.

The system ended with the passing of the Peerages Act 1963. By virtue of Section 4 of that Act, all Peers of Scotland became entitled to a Writ of Summons. With Clause 3 of this Bill, the Government propose to repeal that 1963 enfranchisement. I have doubts as to the effectiveness of the proposed repeal which I shall raise later when we come to Amendment No. 28.

In seeking to repeal the 1963 provision, the Government are effectively proposing to abrogate a fundamental provision of the Treaty of Union. They offer nothing in lieu, although they will be well aware,

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I am sure, of the effect of their proposed repeal. Amendment No. 50 suggests a way of avoiding such an undesirable consequence.

It is important to recognise that when, in 1963, Parliament voted to increase Scottish representation in your Lordships' House, that decision enhanced the Union Treaty provision and detracted nothing from the significance of the representative scheme. That there were repeals of some wording in Article XXII and of some later enactments was neither here nor there. They were merely consequential and necessary to enable the enlargement of Scottish representation in this House. Expanding the franchise was in line with the increase in Scottish Members of another place since it was set at 45 by Article XXII, 293 years ago.

The salient point, central to my argument, is that the decision taken by Parliament in 1963 was one which preserved and strengthened the Union in terms of its significance for your Lordships' House--and Scotland.

The Government should not attempt to undermine or destroy that now. They need to think again and we should make them do so. As on account of past repeals we cannot simply turn back the legislative clock, I suggest that Amendment No. 50 is a simple and straightforward way of entrenching an important element of Scottish representation here during the lifetime of the interim House. It cannot completely re-enact the 1963 provision, but it goes as close as I think can be achieved in this Bill.

For the avoidance of doubt, I have included the word "only" in my draft. It might otherwise have been interpreted as enfranchising every hereditary Peer with a Scottish title rather than those who are Peers of Scotland alone.

At a time when devolution is shortly to become fact, it is surely not the moment to draw back from a link between this House and Scotland forged at the making of the Treaty of Union. The Government have repeatedly stressed their support for the United Kingdom's continuance. It seems singularly contradictory and rash to seek to legislate in a way which sends out such a very different signal. I beg to move.

4.45 p.m.

Lord Gordon of Strathblane: I hope that the noble Lord, Lord Gray, will not press the amendment. I am as anxious as he is to ensure that Scotland is adequately and, frankly, even over-represented in this House, but I do not think that this is the way to do it.

This amendment would preserve the automatic link between birth and the right to be a Member of this House of Parliament. That, therefore, goes against the whole thrust of the Government's Bill. There are other ways of ensuring that Scotland is adequately represented in this House. I find my Scottish compatriots who are hereditary Peers even more agreeable than the other hereditary Peers in this House. I am quite sure that their ability is such, if the Weatherill amendment is passed, that they will stand more than an even chance of being chosen as the survivors. Quite apart from that, I hope that subsequent governments will always pay attention

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to the undoubted talents that lie within the ranks of the hereditary peerage in selecting life Peers. However, the important point is that they will be in this House on their merits, not on the merits of ancestors and sometimes, frankly, on the demerits of ancestors.

Harking back to the Act of Union ignores the fact that much has happened since then. I refer, for example, to the Reform Act 1832 and the growing power of the House of Commons. Scotland is represented in Parliament primarily through the House of Commons. The noble Lord referred to the growth in the number of Scottish seats. It is equally possible that in future the number of Scottish seats may decrease. I, for one, would not regard that as contrary to the Act of Union.

It is important to ask oneself why we should make a special example of the Scots. Are we really envisaging a situation where we have 16 Scottish hereditary Peers here and absolutely no English hereditary Peers? That, surely, would be equally contrary to the Act of Union.

I believe that any government (or any other nominating body which may be empowered to nominate) will be anxious in future to ensure not only a geographical spread of Peers nominated to sit in this Chamber, but a spread of interest groups as well so that this House can continue to serve the nation well by being able to draw on a reservoir of experience in all fields. I respectfully suggest that the Scottish life Peers will still be Members of this House and that their number can be added to. I therefore hope that the noble Lord's concerns about adequate representation for Scotland can be easily taken care of without recourse to this amendment.

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