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Lord Acton: I thank the noble Lord for giving way. If, as the noble Lady, Lady Saltoun, has said, there are 60 Scottish-based life Peers, including three Mackays, does the noble Lord really think that Scotland will be marginalised?

Lord Mackay of Ardbrecknish: My noble friend Lord Henley says, "Not with three Mackays". But that would not be an argument for reducing the number to just the three Mackays. I am not sure how the noble Lady, Lady Saltoun of Abernethy, arrives at her 60. While a number of Scottish Peers appear often, as I said earlier, a fair number of my colleagues from Scotland play little part in the proceedings of the House.

Lady Saltoun of Abernethy: I thank the noble Lord for giving way. I arrived at my 60 by counting the number of life Peers in the membership of the Scottish Peers Association. I think that is fairly comprehensive.

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I have already pointed out that not all of them attend regularly. At least half, if not more, do not attend regularly.

Lord Mackay of Ardbrecknish: I thank the noble Lady. Indeed, one can go a little further: I think she will agree that there are a few members of the Scottish Peers Association whose links with Scotland are a little tenuous and that it has been quite a long time since the predecessors of some hereditary Peers have lived in Scotland. I will not take the point that has just been made to me.

The position of Scottish Peers is a real point. My noble friends have addressed it and no doubt the noble and learned Lord, Lord Falconer, will give us some advice on the matter--together with free tickets to the dome!

I wish now to address another and more important issue raised by the amendment of my noble friend Lord Gray. It is especially important at a time when there are to be elections to the Scottish Parliament and when there is a party in Scotland which seriously advances the cause of the breaking up of the Treaty of Union. We take this matter seriously in Scotland. Indeed, the governing party takes it so seriously that, along with its friends in the media, it has given the matter a huge amount of attention. It has rubbished the Scottish National Party quite successfully to date--sometimes with weapons which, when used by us, when we were in Government, caused us to be howled at by the very same Scottish press that is now using exactly the same ammunition. Politics is a funny old game; I should not complain. The result is that the Scottish National Party is not doing very well. But that does not mean to say that there will not come a day when it might do very well. Therefore it is important that we ensure that any legislation passed in the House is compatible with the Treaty of Union.

The Treaty of Union and the two Acts of Parliament--the Act of the English Parliament of 1706 and the Act of the Scottish Parliament of 1707--are arguably the three most important pieces of paper in the United Kingdom. They created Great Britain; they created the country in which we live. They are therefore hugely important. As my noble friend Lord Gray explained, Article XII of the Treaty of Union provides that 16 of the Peers of Scotland at the time of the Union should sit and vote in the House of Lords. That article provided that the Privy Council of Scotland should cause 16 of the Scottish Peers to be chosen in accordance with the provisions of another Act passed by the Scottish Parliament in the same year. I know it is harking back to the last debate, but it is interesting to see that Article XXII says,

"a writ shall be immediately issued under the Great Seal of Great Britain, directed to the Privy Council of Scotland, for the summoning [of] the sixteen Peers". I will not go back over that argument; there were to be 16 Peers of Scotland. There were also to be 45 Members of the House of Commons. The Peers were to number 16 out of 179 and the Members of the Commons were to number 45 out of 513. Article XXIII of the Treaty provided that the 16 Peers selected to sit in the House

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of Lords should have all the privileges of Parliament which Peers of England then had and which Peers of Great Britain would have after the Union. The article also provided that all the Peers of Scotland and all their successors to the honours and dignities should be Peers of Great Britain, enjoying all the rights of such Peers except the right of sitting in the House.

That remained the position until the Peerages Act 1963, Section 4, which amended the two Acts of the Scottish Parliament but not the treaty itself. In doing so, it took nothing away from the rights and privileges of the Peers of Scotland; on the contrary, it added to their rights. In no sense could it be suggested that the 1963 Act watered down the effect of the provisions of the Treaty of Union.

That is not the position with the present Bill which actually takes away from all Scottish hereditary Peers the right to be one of the 16 Scots Peers who should sit in the House of Lords. In other words, it changes the Treaty of Union; it is a serious amendment to the treaty. Of course other legislation has amended the treaty. Last year we amended the treaty, I suppose, by the passage of the Scotland Act. But the Government thought it was so important to take account of the fact that they were amending the treaty and the two important Acts that in Section 37 of the Scotland Act they inserted these two lines:

"The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act". It may be that Ministers should discuss with their friends in the Scottish Office, and the draftsmen should discuss with the draftsmen of the Scotland Act, why they thought it was necessary to put that small section in that Act whereas the Government do not think it necessary to put something similar in this Bill.

My final point is a rather complex one. It is to address whether any limits are placed on what this Parliament can do to alter the provisions of the Act of Union. If there are any limits, are they breached by the provisions of this Bill? That is the point I want to address and I am sure that the noble and learned Lord the Minister will address it. Perhaps I may say to the noble Lord, Lord Steel of Aikwood, that it is a good deal more important than he seemed to imply. The Government have to be satisfied that they have the power to amend this part of the treaty.

My justification for raising these questions is to be found in a famous case in 1953 of John MacDonald MacCormick and Ian Robertson Hamilton v. The Lord Advocate on the question of whether or not Her Majesty could be styled Queen Elizabeth the Second or whether she ought not to be styled Queen Elizabeth the First. Ian Robertson Hamilton is still alive and kicking. He is a QC at the Scottish Bar and is standing for the Scottish National Party, without much chance of success, I suspect. John MacDonald MacCormick is long dead but his sons are certainly known to some of us and indeed to the noble and learned Lord the Lord Chancellor. One son, Neil MacCormick, is the Regius Professor of Public Law at the University of Edinburgh; and very prominent he is too. He is on the Scottish

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National Party list to be elected to the Scottish Parliament. Another son, Mr. Iain MacCormick, was a Member of another place until I dispossessed him.

The point raised in the case concerned whether or not the Act of Union was being breached. In his judgment, Lord President Cooper said this:

"The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law ... Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions". The Lord President went on to say:


"The Lord Advocate"-- at that time the Lord Advocate was Lord Clyde--


"conceded this point by admitting that the Parliament of Great Britain 'could not' repeal or alter such 'fundamental and essential' conditions. He was doubtless influenced in making this concession by the modified views expressed by Dicey in his later work entitled Thoughts on the Scottish Union, from which I take this passage ... After instancing the provisions as to Presbyterian Church government in Scotland with their emphatic prohibition against any alteration, the author proceeds: 'It represents the conviction of the Parliament which passed the Act of Union that the Act for the security of the Church of Scotland ought to be morally or constitutionally unchangeable, even by the British Parliament ... A sovereign Parliament, in short, though it cannot be logically bound to abstain from changing any given law, may, by the fact that an Act when it was passed had been declared to be unchangeable, receive a warning that it cannot be changed without grave danger to the Constitution of the country'".

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