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Lord Rowallan: I am pleased that the noble Baroness the Leader of the House replied to the amendment in such detail and I thank her. I accept everything that she and my noble friend Lady Carnegy have said. One has to have a starting point somewhere. I should have preferred my amendment to have been dealt with before Amendment No. 31, as was intended, but I wished to

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put across my point about spending a great deal of time when we could shorten the proceedings considerably by being a little more "user friendly".

This was a probing amendment and I never intended to divide the Committee on it. I shall watch with interest what happens to Amendment No. 31 when the Bill has been recommitted and it is subject to amendments. In the light of everything that has been said in Committee, I might return to the matter on Report, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 53:

After Clause 1, insert the following new clause--


(" .--(1) During the period in which this Act remains in force, the Prime Minister shall ensure that at any one time the number of members of the House of Lords whose primary residence is in Scotland shall be no less than 40.
(2) If at any time the requirement in subsection (1) is not fulfilled, the Prime Minister shall recommend to Her Majesty that additional persons whose primary residence is in Scotland are recommended to Her Majesty for conferment of life peerages under the Life Peerages Act 1958.")

The noble Earl said: I believe that this is the first amendment to be moved which does not attempt to save the hereditary peerage in any form. I believe that I have found an unintended consequence of the Bill and I humbly submit that it is the classic work of a second Chamber to look for unintended consequences in legislation.

Amendment No. 53 is primarily a probing amendment, but that is not to say that it is not a significant issue. The amendment requires the Prime Minister to ensure that throughout the whole of the indefinite stage one there will always be a minimum of 40 Peers domiciled in Scotland. The Scots law concept of "domicile" has been translated by the Public Bill Office into "has his primary residence in". I regret the need for the translation.

The purpose of the amendment is two-fold. The first is to ensure that United Kingdom Bills with Scottish content, and often Scots law content, are liable to scrutiny by Peers from Scotland. That I consider to be one of the higher measures of commitment: liability to the Scottish provisions. Secondly, there is a constitutional issue capable of exploitation by those who recommend that Scotland should leave the United Kingdom. Articles 22 and 23 of the Treaty of Union established statutorily guaranteed representation from Scotland in both Houses of the Union Parliament: 45 in the Commons and 16 representative Peers in the Lords. Both of those numbers have been increased by statute and by the creation of Great Britain and United Kingdom peerages and life peerages.

The statutorily guaranteed representation from Scotland is about to come to an end with the unamended passage of this Bill. History will recall that Scotland was deprived of its 292 year-long statutory representation in the Upper Chamber in 1999. What is more, it will be the result of constitutional carelessness rather than design.

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I am working on the assumption that the Government remain committed to Scotland's inclusion in the British Union.

I am mindful of the debacle over the Peers of Ireland who were ultimately excluded from this House by accident. I refer to the disappearance of the post of Lord Chancellor of Ireland, the returning officer for the Irish representative Peers elections. The Lord Chancellor of Ireland disappeared amidst the fraught negotiations over the Irish Free State Treaty in 1921. The subsequent constitutional and illogical exclusion of Irish Peers who live in Northern Ireland sums up the error.

I fully accept that the inevitably hereditary peerage of Scotland is being sent home by this Bill. I believe that a new statutorily guaranteed group of life Peers from Scotland should be identified and that the constitutional position be maintained; that is, Scotland's position as a sovereign partner in a reformed British Union.

That will be easy to do. There are just over 40 life Peers and Law Lords who qualify. They are domiciled in Scotland. Adopting the amendment will not create a difficult task for the Government. Failing to adopt the amendment will create resentment in Scotland. It will certainly be difficult to explain why there is a virtue in depriving Scotland of a guaranteed opportunity to scrutinise reserved powers legislation. What will be the merit of doing that? I will find it more than difficult to explain this loss of opportunity for legislative scrutiny.

Forty Peers from Scotland in the interim House represents 8 per cent of the membership. Scotland has 8 per cent of the United Kingdom population. The constitution of the United Kingdom should not be put into unnecessary jeopardy. I beg to move.

Lord Gray: The noble Earl is to be congratulated on tabling an amendment which addresses the question of Scottish representation in your Lordships' House during the interim period, the more so perhaps when one bears in mind the dictum from his Front Bench that they want the Bill, the whole Bill and nothing but the Bill.

Some noble Lords may recollect that I moved amendments earlier in Committee which sought to preserve Scottish representation, especially at a time when the Union may well come under great strain. Unlike the noble Earl, I took a hereditary route. It is perhaps interesting, purely as an aside, that my Amendment No. 50, which still stands on the Marshalled List although we did not debate it this afternoon, would have produced 41 peers at this time.

Obviously one hopes that the Government will address this question, and I hope that we may hear something from them this evening in response to the noble Earl, Lord Mar and Kellie. Certainly, when we have devolution in Scotland and the opportunity for problems arising is great, we must take care about how we proceed. I do not know quite how--within the constrictions imposed by the scheme of things for the interim House in view of the debates we had this

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afternoon--the noble Earl will manage to achieve a balanced representation from his 40. I shall be interested to hear what the Government have to say.

Lord Sempill: I stand to support my noble friend Lord Mar and Kellie. As I am sure some noble Lords are aware, we have both just returned from fighting in the Scottish elections. Unfortunately, neither of us was successful. However, we learnt some interesting things on the doorsteps. In supporting my noble friend, it is perhaps worth mentioning some of the issues I picked up on the doorsteps, primarily in Edinburgh North and Leith. I believe we have to accept that the Government's constitutional programme has already created a distancing in the attitude of many Scots in their relationship to Westminster. That is an area of concern.

Noble Lords will not be surprised that one issue which did not arise on the doorsteps was the reform of your Lordships' House. Having said that, equally concerning--I have to be honest, primarily among the supporters of our party, as in the Scottish Conservative Party--was a strong feeling over the potential or possible break up of the Union. The reason I am happy to support my noble friend in the amendment, which is a paving amendment, is because I feel that a Scottish contingent within this House should be kept up to maximum strength.

I draw to the attention of noble Lords a series of newspaper articles which were printed, probably in the last two to three weeks of the election. They highlighted the fact that the Government may be faced with a situation where they might have to drop the Scottish presence in their Cabinet because of the reality of Scotland having its own Parliament and also the reality of having a further 72 MPs at Westminster.

Therefore, I maintain that at the moment we are in the process of substantial constitutional change. As I have mentioned, the Scots are already beginning to distance themselves in their relationship to Westminster. I believe that retaining a strength in this House would be of benefit to the future of the Union.

7.15 p.m.

The Earl of Erroll: I rise briefly to say that I believe it is important that there should be a minimum representation, not just a maximum one. The strength of the amendment is that it guarantees one that is proportionate to the populations in the two countries. That is not the case in another place, which is probably why it will come under review there at some time.

Many people tend to forget that Scotland's devolved Parliament is a subsidiary legislative body and that the Parliament at Westminster is not just a Parliament for England; it is also the sovereign Parliament for Scotland. It can take back any powers at any time it wants. I notice, for instance, that the papers are already saying that there may be some conflict of interest between Scotland and England over tuition fees and therefore there might be a case for repatriating that in order to solve the problem. That highlights the fact that this is still the sovereign Parliament of Scotland as well as England. We forget that at our peril. There must

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therefore be some entrenched constitutional protection for the Scottish people here in the second, revising Chamber as well as in another place.

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