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Lord Jauncey of Tullichettle: This is a valuable amendment. I endorse the remarks of the noble Earl, Lord Mar and Kellie. The effect of the Bill as drafted will be that, for the first time since 1707, there will be no statutory right of representation for Scotland in this House.

It is true that, with the advent of the Scottish Parliament and the appropriation of many matters to it, the amount of work will be reduced. However, reserved matters affecting Scotland will remain, and will fall to be dealt with by this House. At a time when the major parties are anxious to preserve the Union, it seems unfortunate that the Bill should remove the right of statutory representation for Scotland in this place. It is a matter that the Government should think worthy of consideration, even if not in the form of this amendment.

Lord Gray: I merely wish to take up one point that was made by my noble friend Lord Elton. He said that the coming into force of the 1963 Act added a number of Scottish Peers to this House. If my memory is correct, I believe that the Act added four or five--the reason being that it referred only to those Peers who had their titles before the Act of Union.

Lord Mackie of Benshie: I can hardly believe some of the remarks made in this debate. It is true, as a number of speakers have said, that we need representation for Scotland which will cover reserved matters. At present, there is no logical way to achieve that. It is impossible that it should be through the hereditary Peers, given the whole aim of the Bill. While the Government are telling us about Scotland, they might touch on the point as to why on earth, in a Bill to abolish hereditary Peers, they want to preserve them while deciding how to reform this House.

The Earl of Northesk: I wish to take up points made by many noble Lords, and by my noble friend Lord Elton in particular. Put simply, my interpretation of the "audit trail" of the Bill runs along these lines. The Bill removes hereditary Peers. The repeal of Section 4 of the Peerage Act 1963 removes the statutory right of members of the Scottish peerage to sit; and the repeal of the relevant passages of the English and Scottish Act of Union of 1707, on the face of the 1963 Act, sorts out the issue of Scottish representation. On the surface, it is all very simple.

But I am less certain that the matter is so clear-cut. The audit trail that I have defined gives rise to a particularly thorny problem. One needs to return to the terms of the 1707 Act to begin to understand what could be made permissible by the enactment of this Bill. We should pay particular attention to the following passages of the 1707 Act; first:

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    Condition of any Treaty or Union to be concluded betwixt the two Kingdoms, without any Alteration thereof or Derogation thereto in any Sort for ever"; and, secondly:

    "And lastly, Her Majesty enacts and declares, That all Laws and Statutes in this Kingdom, so far as they are contrary to or inconsistent with the Terms of these Articles, as above-mentioned, shall from and after the Union cease and become void".

It is of course the case that the institution of the representative Peer system is qualified on the face of the 1707 Act with the phrasing,

    "until the Parliament of Great Britain shall make further provision therein". Equally, it is the case that "the Parliament of Great Britain" has indeed made subsequent "further provision therein"--not least in the 1963 Act. But the key words that flow from the two passages that I have cited are, in turn, "derogation" and "contrary and inconsistent".

Given the text, the presumption must be that, to be consistent with the terms of the treaty, all subsequent amendments to it must be on the side of enhancement, not diminution--that surely is the correct interpretation of the usage of "derogation" in its context. In fact, there is evidence of the validity of that view in some of the proceedings of this House. For example, it was observed by the noble and learned Lord, Lord Keith of Kinkel, in a debate in 1977 that:

    "Under Article 18 of the Treaty of Union it is provided that the laws of Scotland which concern private right are only to be altered by the United Kingdom Parliament for the 'Evident utility of the subjects within Scotland'".--[Official Report, 27/6/77; col. 902.]

Following that logic a little further, I do not seek to suggest that the Bill before the House today should "cease and become void" by virtue of being "contrary and inconsistent" with this. What I do say is that it will be freely available to anyone with a mind so to do--and we can be certain that such persons exist and may even now be actively preparing their case--to pursue an argument that the Bill, once enacted, has breached the terms of the Treaty of Union and that, therefore, the Union should cease. Referring back to the texts that I have quoted, the argument runs thus: it is a "fundamental and essential Condition" of the Union that there be no "Derogation thereto"; in the event--as with this Bill--that proposed statutory provisions give rise to such a derogation, they must be "contrary to or inconsistent with the Terms" of the treaty and Union; in turn, enactment of the inconsistency--

Lord Gordon of Strathblane: I thank the noble Earl for giving way. Does he agree that if, selectively, members of the hereditary peerage in Scotland alone were to lose the right to sit in the House of Lords, that would be a breach of the Act of Union; but if the rights of hereditary Peers throughout the United Kingdom are removed, there cannot be any derogation from the Act of Union? Indeed, it would be unfair if, selectively, Scottish hereditary Peers preserved the right to sit and English hereditary Peers lost that right.

The Earl of Northesk: I take the noble Lord's point. However, there is the problem that the Act of Union says what the Act of Union says. The Act established as

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a fundamental and essential condition that the representative peerage system shall exist. So if there is a derogation from that, we are in slight difficulty.

To resume my argument, enactment of the inconsistency of such provisions gives effect to the statutory force, "That all Laws and Statutes in this Kingdom" shall "cease and become void". Of necessity--this is the fundamental point--that must apply to the Act of Union itself. In effect, the Bill could exist as a mechanism to deliver Scottish independence via the back door. Such is the nature of the law of unintended consequences.

Lord Norton of Louth: I apologise for interrupting the noble Earl. I merely wish to make two general points following remarks by my noble friends Lord Monro and Lord Waddington in support of the principle underlying the amendments, which is to ensure that different voices of the United Kingdom are heard in this House.

There is the positive argument that has been touched upon, that ensuring that those voices continue to be heard adds to the richness of debate in this House and contributes to the experience and expertise that is a feature of this House and makes it what it is, adding to the quality it brings to the political system. The other reason why I believe it to be important--a negative reason but one that is specific to the present--is this: because, as a result of devolution, there is to be an elected Parliament in Scotland and an elected Assembly in Wales, that strengthens the case for retaining some voice for different parts of the United Kingdom in this House. Otherwise, the tendency, once the elected assemblies are in place, will be for Scotland and Wales to become marginalised within the Westminster context. There is something of a precedent for that in Stormont. It is important that that is recognised. In order to prevent Scotland and Wales being marginalised as a result of those developments, it is important to look for some way to ensure that different parts of the United Kingdom are heard in this House.

I recognise that this amendment, because it is specific to Scotland, would not achieve that. Later amendments will address the point. As presently drafted, the Bill does not address the point. If the Government are minded to accept that some hereditary Peers are to remain in the House--I am wary about an over-formalistic approach--is there not a case for providing some mechanism that would at least ensure that the different parts of the United Kingdom have a voice in this House?

5.30 p.m.

Lord Mackay of Ardbrecknish: We have had a most interesting debate. There have been two strands in the debate. One strand was the whole question of Scotland's position in the House after the hereditary Peerage has been removed--especially against the background of a Scottish Parliament. The same question arose in respect of Wales and Northern Ireland, although perhaps not to the same extent because the Scottish Parliament certainly will have much greater powers and will look much more like one would think a parliament would look like than either the Assembly in Wales or

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the Assembly in Northern Ireland. It is important to raise the point of the position of Scottish Peers--not necessarily hereditary Peers--in your Lordships' House.

Some noble Lords may sometimes think that there are too many Scottish Peers in your Lordships' House. I read in the papers that the Prime Minister thinks that he has too many Scots in the Cabinet and that after the Scottish Parliament is set up there is to be some type of ethnic cleansing of the Scots in the Cabinet and in the Government. Some of us are taking little wagers as to who will go and who will stay. Any noble Lords who wish to see me about that later are welcome to do so--especially if they are in the Government and have some inside information! The keeper of the book always likes inside information. But there is a serious point about the different component parts of the United Kingdom being properly represented in the Parliament of the United Kingdom.

If one looks at the composition of the current House, while some of the Scots may be on their feet quite often, in purely numerical terms the Scots are not very well represented, especially by people with backgrounds in academia, medicine and the law, with the exception of the "professionals", if I may call them that, who get here by being Law Lords and politicians, and the lawyers who get here by being former Lord Advocates. The universities of Scotland, for example, are very badly represented in your Lordships' House. The medical Royal Colleges in Scotland are certainly of equal prominence to those in the south, but they are very badly represented here. Some of my noble friends have made the good point that after devolution there is a danger that Scotland will be marginalised at Westminster. That danger is underlined by the press reports that even the Prime Minister feels that he may have to remove some of the Scots from his Cabinet, not because they have done a bad job--although one or two, I suspect, have not done very well--but because they are Scots.

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