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The Earl of Dundee: My Lords, I support this grouping of amendments proposed by my noble friends, particularly in so far as they focus upon Scottish electoral colleges. From these amendments three points stand out clearly. First, there is consistency with the Treaty of Union of 1707. Secondly, there is consistency with the terms of this Bill and with the objectives of

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stage one of Lords reform in 1999. Thirdly, there is the consistency of these proposals with the objectives of stage two of Lords reform.

The first point requires no elaboration at all. It is self-evident from Article XXII of the Treaty of Union. This article is not spent, as my noble friend Lord Gray correctly asserted. It stated a number which was, and still is, a minimum of Scottish representation within the United Kingdom second Chamber.

Secondly, the amendments conform to the purpose of the present Bill on its recommitment. This is to restrict membership of the hereditary peerage within the transition House. The Bill also seeks to achieve approximate voting parity between the main parties within the transition House.

Thirdly, there is the consistency of these amendments with current arrangements for the consideration of stage two of Lords reform. The task of my noble friend Lord Wakeham is to make recommendations in order to improve the quality and function of the second Chamber. One obvious priority is to preserve and, if possible, to enhance its present quality of independence.

In regard to Scottish representation as a component of the reformed Chamber, that is exactly what my noble friend's amendments accomplish. They do so through the selection which comes from an electoral college; and they do so also as the elections proposed would take place every Parliament. Not least do they add value by avoiding party politics. That is so where an electoral college might consist of Scottish Members of this House, domiciled in Scotland as the amendment of my noble friend Lord Gray proposes.

Stage two may well produce a wholly elected second Chamber. However, if instead it should produce an appointed Chamber, to some extent electoral colleges ought to become a feature of the new system. There should be a Scottish electoral college which elects 16 Members every Parliament. In previous debates on this subject on the Bill, among a number of misapprehensions expressed, one in particular should perhaps be singled out. It has been asserted that, as matters stand, there are already more than 16 Scottish Members of this Chamber. That is true. Yet it has been contended that no other expedient at all--let alone a Scottish electoral college--becomes necessary to ensure a statutory minimum of Scottish representation. Yet that argument overlooks its own converse; that is, that an electoral college can improve further the quality of Scottish representation only if it guarantees to elect a statutory minimum number every Parliament.

The Scottish electoral college which functions every Parliament constitutes a useful model within the reform of the second Chamber. That is particularly the case if that Chamber consists of appointed Members in the first place. Therefore, my noble friend Lord Wakeham should not be prevented from including that option. Instead, he should be encouraged to advance it. Clearly the best way to give that encouragement now is to incorporate within this Bill the substance of these amendments.

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9.30 p.m.

The Earl of Mar and Kellie: My Lords, this House will continue to make significant laws for Scotland and those laws must be scrutinised by people from Scotland. To give the most obvious and simple example within the world of social security legislation, cold weather payments are something about which Scottish representatives know a lot.

However, this debate about the future of Scottish representation has got slightly caught up in the formulae used in the 1706 negotiations. Your Lordships are familiar with the two significant formulae of those negotiations which were that the relative taxable values of England and of Scotland were in a ratio of 38:1 and that the population difference was in the ratio of 5:1. That led to the treaty negotiators agreeing to there being 45 MPs and 16 Peers. I should add that the 45 MPs was a reduction from 330 Members of Parliament for Scotland, and for the Peers, of whom there were 160, it was a 10 per cent retention scheme. We have clearly heard of that scheme. I should note also that there were 180 Peers of England at that time, so I can see why they were anxious not to be overrun by the whole of the peerage of Scotland.

I move on to the need for today's formula, which must be population based. Scotland constitutes 8 per cent of the UK's population. Therefore, in a House of approximately 600 that gives us 40 Members who must be domiciled in Scotland--by which I mean that they genuinely live there. The slogan for that must be, "No legislation without a guaranteed representation"; or perhaps I ought to modify that for the benefit of the noble Lord, Lord Taylor of Gryfe, to, "No reserved powers legislation without guaranteed and fair representation".

Lord Simon of Glaisdale: My Lords, I am very pleased to follow the noble Earl because, on the referendums Bill, I believe he proposed the revival of the old Scottish Parliament and made a moving and erudite case for it. That was particularly appropriate from him as one whose ancestor had served in the last Scottish Parliament. I am afraid that the proposal had no support because it was not supported by the Scottish Constitutional Convention. Therefore, even his own party, much less the government party, opposed it. But that was the most logical and sensible conclusion of the problem that your Lordships have been facing in this debate.

I have been sitting here all day while the tides of partisanship have been washing over my head. But now that they have subsided and I can come up for air, perhaps I may ask two purely technical questions on these amendments; but that is not to minimise in any way the importance of the political issues that your Lordships have been discussing. I should like to ask about the phrase in Amendments Nos. 28A and 28B, which refers to,


    "sixteen peers in the peerage of Scotland". As your Lordships well know, and as was indicated by my noble friend Lord Perth, a number of Scottish Peers have English titles or United Kingdom titles. I do not

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    know whether that phrase is meant to extend to them. I believe that the phrase is taken from the Act of Union; is it not? But things were very different at that time and your Lordships have heard from my noble friend that the circumstances in which there were elections under the Act of Union are now matters of history. So that is the first question on which I should be very grateful for guidance from the government spokesman, and from the noble Lord, Lord Mackay, when he replies.

My second question arises out of Amendment No. 37, tabled by the noble Lord, Lord Gray. That amendment refers specifically to,


    "sixteen Peers of Scotland only who are domiciled in Scotland". That phrase appears again and again in the next group of amendments. "Domicile" is a highly technical word in private international law. It merely denotes the legal connection of an individual with a territory, which has its own peculiar system of law. It can be acquired in two ways. By far the most common is by a domicile of birth, which I am afraid, if I may use the phrase, is largely hereditary: one acquires it from one's parents at birth. Generally speaking, it subsists until it is changed by the other type of domicile; namely, a domicile of choice.

One can have a Scottish domicile. I imagine that most of your Lordships who have spoken tonight are domiciled in Scotland, although I imagine that many are resident in England. A few may have acquired a domicile of choice in England by choosing that that should be the country with which they have the closest connection. But I venture to think that the phrase in the amendment of the noble Lord, Lord Gray, and in the subsequent amendments of the group is misleading. There is another phrase which is much safer and more illuminating in Amendment No. 31 which states,


    "the part of the United Kingdom with which they have the closest connection". That is a phrase that is perfectly well understood by lawyers and I think it is probably much closer to what is intended by the noble Lords, Lord Mackay of Ardbrecknish and Lord Gray, and other noble Lords who have spoken in support of these amendments. I ask for illumination on those two points: the meaning of the peerage of Scotland in the light of the fact that many Scottish Peers have, and indeed sit in your Lordships' House by virtue of, an English or United Kingdom peerage, and whether "domiciled in Scotland" is the most appropriate phrase or whether it would not be better to refer to the country with which they have the closest connection.

The Earl of Lauderdale: My Lords, before the noble and learned Lord sits down, I hope he can help us a little more. He referred to domicile at some length. Can he explain in language which laymen can understand the difference between domicile and residence?

Lord Simon of Glaisdale: My Lords, I am afraid that I did not catch the first part of the noble Earl's question. There is a clear distinction between domicile and residence. You cannot acquire a domicile of choice except by residence in some place which you choose as your home. But domicile is quite different from

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residence in the way I have tried to explain; namely, that you can acquire a domicile by birth without any residence at all. The classic example was in the days of the Raj where one member of a family after another was born in India and lived in India but still kept their English domicile. As I say, domicile is quite different from residence.


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