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The Earl of Mar and Kellie: My Lords, the noble Lord, Lord Gray, is correct when he says that this Bill kicks away the guaranteed representation of Scotland. However, I have a slightly different concern. There is no doubt that this Bill removes the special protection that was negotiated with such difficulty during the spring and summer of 1706 with the English Whig government--I say this perhaps with a degree of surprise--led by the Earl of Godolphin.

Earlier in our proceedings on this Bill I tabled an amendment which called for a replacement group--in fact the amendment called for 8 per cent of life Peers to be domiciled in Scotland. It was rejected by the Government. I can express my concern in a single question: how much more of the treaty can be violated before it folds? I can think of no more central part of the treaty than the representation. I suppose that my watchword should be "no legislation without guaranteed representation". I hope to hear that there will be new treaty negotiations in the light of the successful passage of the Bill.

Baroness Jay of Paddington: My Lords, I shall not detain the House long on the second Motion standing in the name of the noble Lord, Lord Gray. All that I have said in the previous debate about the dangerous precedent of the Motion moved by the noble and learned Lord, Lord Mayhew, applies even more to this Motion. Indeed, I suggest that it is in itself an example of the dangers of establishing the idea that recourse to the

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Committee for Privileges during the passage of a Bill should be accepted as part of the consideration of a Bill--

Viscount Cranborne: My Lords, I am most grateful to the noble Baroness for giving way and I apologise as the House wants to move on. The noble Baroness said that she had tried this argument out on the best minds of the Cabinet Office. That is a most impressive origin for this argument. But perhaps she might care to look at the argument again. After all, if I am right, she is implying that every Bill, no matter what its subject, would come within the remit of the Committee for Privileges if this precedent were followed. I thought that the remit of the Committee for Privileges was matters appertaining to Peerages in this House.

5.15 p.m.

Baroness Jay of Paddington: My Lords, although neither the noble Viscount nor I are lawyers, it is perfectly understandable to me--and I am sure that if it is understandable to me, it will be clear to him--that the role of the Committee for Privileges has heretofore been to consider individual claims of Peerage within the context of an existing law. The point relating to the present reference suggested by the Motion of the noble Lord, Lord Gray, is to establish the role of the Committee for Privileges in the legislative process and to consider a Bill, which, as I attempted to explain in my response to the noble and learned Lord, Lord Mayhew of Twysden, is unprecedented. I do not believe that that is a matter which I need to refer again to the Cabinet Office. I shall ask it once more, but I believe that that is fairly well established.

I would say to the noble Lord, Lord Renton, that one of the problems relating to the second Motion is that it begins to follow a precedent while the result of the Division which achieved the first reference to the Committee for Privileges is still hot off the press. To that extent, it is in a sense even more inappropriate. To add the reference to the Scottish Peers and to the points raised by the noble Lord, Lord Gray, in his comments on his Motion, cannot be easily added to the Committee for Privileges' consideration of the points made by the noble and learned Lord, Lord Mayhew of Twysden.

Lord Mayhew of Twysden: My Lords, I am most grateful to the noble Baroness. She keeps saying that this is in character a total departure from anything that the Committee for Privileges has been invited to do in the past. But I draw her attention to the Companion, which says that:


    "The Committee hears and makes recommendations upon any matter of privilege, or claim of peerage, referred to it by the House",

and on the preceding page, it states:


    "The following are aspects of privilege of Parliament: Freedom from interference in going to, attending at and going away from Parliament".

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I can think of no more substantial interference with that than being told that you are shut out by an Act the validity of which you question.

Baroness Jay of Paddington: My Lords, I am sorry that I am evidently being extremely unclear in my point on that matter. All the points referred to by the noble and learned Lord relate to individual claims and not to a Bill, or, potentially, a statute passed by the sovereign Houses of Parliament. As I said in reference in my previous reply to the case of the noble Marquess, Lord Bristol, it was specifically stated in the ruling on that particular case that any interpretation of peerage law could be overcome by a statute of the sovereign Parliament. That is a simple point and it is one on which I rest. I do not believe that the point made by the noble and learned Lord, Lord Mayhew of Twysden, about individual cases is relevant to that point.

I should like to continue with a number of points I have to make relating to the Motion moved by the noble Lord, Lord Gray. The first point is that we have extensively debated the issues which he now seeks to refer to the committee, both in Committee and on Report. We have calculated that we have already spent some four and a half hours discussing the question of the rights of Scottish Peers in relation to your Lordships' House. I must say that, having listened with attention to the points made this afternoon both by the noble Lord and from the Opposition Front Bench, I have not heard novel points which were not considered during those debates.

That form of debate is, of course, the right and legitimate way of raising those issues, as I have already commented in relation to the Motion in the name of the noble and learned Lord, Lord Mayhew. I am certainly not complaining about that. However, I should remind the House that we have not only exhaustively debated the question, but we have voted on it. The noble Lord, Lord Gray, moved one of his amendments to a Division. It began with the words,


    "In order to continue the effect of Article XXII of the Treaty of Union".

Are we now to establish a situation by these types of Motion where noble Lords who dislike the decision of the House, whether in Committee, on Report or at another stage of the Bill, are to be permitted to seek an opinion of the Committee for Privileges in an attempt to overturn a decision by the House?

Secondly, the reference in the Motion is extremely broad. At least the Motion which we discussed before, in the name of the noble and learned Lord, Lord Mayhew, had the advantage of being fairly specific about the question which the Committee for Privileges was to discuss. The Motion from the noble Lord, Lord Gray, simply asks whether the Bill as a whole is compatible with the treaty as a whole.

I believe that that unwarrantedly stretches the jurisdiction for the Committee for Privileges. It asks the committee of this House to decide whether a proposed piece of legislation is compatible with a treaty. He may say--and indeed, he did so--that the point on which that turns is on the rights of a branch of the peerage,

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although my recollection from our earlier debates is that the noble Lord has been very insistent that the rights of the Scottish Peers to membership of your Lordships' House have always been statutory and not established by custom or common law. But that is not the question which he seeks to put to the committee. He is effectively seeking a ruling from the committee of this House that this Parliament is not sovereign.

My noble and learned friend Lord Falconer has explained at length, and on several occasions during the four and a half hours in which we have debated these points, that the Government are entirely confident that the Bill does not breach the Treaty of Union, and certainly cannot breach the Acts of Union, as the relevant provisions of those two Acts of Parliament have been repealed. It is interesting that the noble Lord, Lord Mackay of Ardbrecknish, said on 22nd June that he was persuaded that what the Government are doing in the Bill does not infringe the Treaty of Union. On that basis, he withdrew an amendment in his name and that of the Opposition Front Bench. I am interested that he has now changed his mind on the matter. I wonder whether that goes back to the points which I was making earlier about the intent behind the Motions which we have before us this afternoon.

If the noble Lord, Lord Gray, insists on pressing his Motion to a Division, I hope that on this second occasion your Lordships will see the sense of not burdening the Committee for Privileges with the matter and will not support the Motion.

Lord Renton: My Lords, before the Minister sits down, if I heard her correctly, she was saying that the treaty between England and Scotland in 1706 was a treaty between two countries, but not an Act of Parliament. But in the Union with Scotland Act of 1906 which I have obtained, as amended, from Volume 10 of Halsbury's Statutes, on constitutional law, we find that the treaty is embodied in that statute and is therefore still part of the law of the United Kingdom. We cannot escape that fact.

Baroness Jay of Paddington: My Lords, as I said when replying to the original points made, I am not a lawyer. I hear precisely what the noble Lord says. But I and the Government Front Bench are advised--it is a point we have made consistently throughout the nearly five hours of discussion on this issue throughout the stages of the Bill--that the relevant Acts and treaties are not inapplicable in relation to the Bill.


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