Select Committee on Privileges Second Report



My Lords,

  In 1706 England and Scotland were two distinct states. England was ruled by Anne as Queen of England, and Scotland was ruled by Anne as Queen of Scotland. Each state had its own Parliament. On 1 May 1707 the two states were united into one state by the name of Great Britain. The new state had a single monarch, in the person of Queen Anne, and a single Parliament. On 27 July 1999 the terms on which this union took place were the subject of a reference made by your Lordships' House to the Committee for Privileges. The question referred by your Lordships' House was whether the enactment of the House of Lords Bill (as amended on report) would breach the provisions of the Treaty of Union between England and Scotland. The question raises points of historic and constitutional interest and importance.

  The first step is to identify the term of the Treaty of Union between England and Scotland which the noble lord, Lord Gray, contended would be breached. This is not altogether straightforward, because the union was not preceded by a formal document signed as a treaty of union on behalf of the two countries.

  What occurred was that on 22 July 1706 twenty five articles of union were agreed by commissioners nominated on behalf of Scotland and commissioners nominated on behalf of England. These articles were not binding upon either country. They were merely an agreed set of proposals. In January 1707 the estates of the Scottish Parliament `ratified, approved and confirmed' the articles of union as agreed by the commissioners, subject to some amendments. This Act of Union of the Scottish Parliament received the assent of Anne, as Queen of Scotland, on 16 January 1707. The Scottish Act of Union provided that it was not to be binding upon Scotland until the articles set out in the Act were approved by `her Majesty with and by the authority of the Parliament of England as they are now agreed to be approved and confirmed by her Majesty with and by the authority of the Parliament in Scotland'. The approval of the English Parliament was forthcoming two months later, on 6 March 1707. On that day an Act of Union of the English Parliament, approving articles of union identical to those set out in the Scottish Act of Union, received the assent of Anne as Queen of England.

  Thus, the terms on which union took place are to be found exclusively, not in a treaty as that expression is normally understood today, but in enabling legislation enacted separately by the two countries before they became `for ever . . . united into one kingdom' (article 1).

  Article 3 provided that the united kingdom of Great Britain should be represented by one and the same Parliament, to be styled `the Parliament of Great Britain'. Article 22 is the lynch-pin of Lord Gray's case. Article 22 provided for the composition of the `two Houses of the first Parliament of Great Britain'. Unlike the English Parliament, the Scottish Parliament consisted of only one House, in which peers of Scotland and commoners sat together. A straight transfer of the peers of Scotland to the upper House of the new Parliament of Great Britain was not acceptable to the peers of England. Your Lordships were informed that there were then 154 Scottish peers and 168 English peers. The English peers feared they might be swamped in the new Parliament. Under the political compromise worked out, article 22 provided that of the peers of Scotland at the time of the union, sixteen should be the number to sit and vote in the House of Lords and forty five the number of the representatives of Scotland in the House of Commons of the Parliament of Great Britain.

  I pause to observe that this legislation, considered solely as legislation, does not assist the arguments of Lord Gray. The reason is short, simple and conclusive: article 22 is no longer on the statute book. The Peerage Act 1963, section 4, provided that in future every holder of a peerage in the peerage of Scotland should be entitled to sit in the House of Lords, and that the enactments relating to the election of Scottish representative peers should cease to have effect. Section 7 repealed article 22, in both the Scottish Act of Union and the English Act of Union, so far as it related to peers of Scotland. For good measure, the whole of article 22 of the Scottish Act of Union was repealed, as spent or superseded, by the Statute Law Revision (Scotland) Act 1964, and the whole of article 22 of the English Act of Union was similarly repealed by the Statute Law (Repeals) Act 1993.

  Further, I should draw attention to the non-discriminatory nature of the House of Lords Bill. The object of the Bill is to restrict the membership of your Lordships' House by virtue of a hereditary peerage. In doing so the Bill draws no distinction between any group or class of hereditary peers. Peers of Scotland and peers with Scottish connections are treated the same as other peers. There is no question of the Bill being outside that part of article 18 of the Treaty of Union which envisages the laws concerning `public right, policy and civil government' being `made the same throughout the whole United Kingdom'.

  However, this is by no means the end of the matter. Mr. Keen Q.C., appearing on behalf of Lord Gray, submitted that upon the passing of the two Acts of Union, in January and March 1707, there came into being a treaty. By this treaty the two kingdoms bound themselves to proceed to enter into a union on 1 May 1707 on the terms set out in the two Acts. This treaty, counsel submitted, still subsists. It still subsists, even though the two parties to the treaty, the kingdoms of Scotland and England, have long since ceased to exist.

  I do not consider it is necessary to decide whether any such treaty, binding in international law, came into being before the union took place. Nor is it necessary to investigate whether, if there were such a treaty, there still subsists any treaty right or obligation which is currently justiciable, either under international law or domestic law. For present purposes it is sufficient to note that, especially in the Scottish Act of Union, the articles of union are referred to as articles of the `Treaty of Union'. Indeed, the title of the Scottish Act of Union is an `Act ratifying and approving the Treaty of Union of the two kingdoms of Scotland and England'. The inescapable fact, and this is what matters, is that the union took place on the basis of articles thus described. They were the conditions on which Scotland and England became united into `complete and entire Union'. The Committee for Privileges has now been charged by the House with the task of advising whether the enactment of the House of Lords Bill would breach the provisions of the Treaty, viz., would breach the terms on which the union took place. That is the question, and the only question, upon which the House is seeking advice from the Committee. If there would be a breach, the consequences which would or might ensue are a matter for the House, not the Committee.

  Mr. Keen did not contend that the provision in article 22, for sixteen Scottish peers to sit in the House of Lords, was set in stone and unalterable. He was right to do so. On its face the term of the Treaty embodied in article 22 is concerned with the composition of the first Parliament of Great Britain. In the course of time changes in the composition of this new Parliament would be inevitable. The constitutional arrangements of the newly-created kingdom of Great Britain could be expected to develop. Constitutional development was to be facilitated and encouraged, not stifled. It is, therefore, not in the least surprising to find that the parts of article 22 relating to Scottish MPs were removed a long time ago, starting with the major constitutional reforms of 1832: see the Representation of the People (Scotland) Act 1832. Indeed, the article 22 provision for the election of sixteen peers of Scotland would itself be bound, in time, to become outdated. The peers of Scotland were a closed and, over time, a diminishing class. In future, peerages would be peerages of Great Britain and not peerages of Scotland or England. This was envisaged in article 23. Clear language, therefore, would be needed before article 22 could sensibly be interpreted as intended to preclude all change. Article 22 contains no such wording.

  Mr. Keen's contention, then, did not fasten onto the particular provision in article 22. Instead, his submission focused on the purpose underlying the article. His submission was to the following effect. The underlying purpose of article 22 was that Scotland should be represented adequately in both Houses of the Parliament at Westminster. Article 22 was a means to that end. The need for such representation in your Lordships' House continues so long as this House discharges a function in the passage of legislation for Scotland. Although not expressly stated, it is implicit in article 22 that Scotland will always be guaranteed adequate representation in the British Parliament. There has always been such representation, ever since 1707. Now, for the first time, if the House of Lords Bill as amended on report were enacted, there would be no guarantee that Scotland will be adequately represented in the upper chamber. That would be a breach of the implied term underlying article 22 of the Treaty of Union. Mr. Keen disavowed any suggestion that representation must take the form of hereditary peers. In a reformed House of Lords representation might take the form of life peers, whether appointed or elected. The form which the guaranteed representation should take would be a matter for consideration by Parliament, once it was clarified that the absence of guaranteed representation would be a breach of the Treaty of Union.

  I am in no doubt that underlying the Treaty of Union was an intention by both countries that British subjects north of the border, just as much as those living in England and Wales, should be adequately represented in the Parliament at Westminster. Whether that intention can be elevated to the status of an implied condition of the Treaty of Union is a moot point. I rather doubt it, but I reserve my opinion on this point. More importantly, in my view the constitutional changes foreshadowed in the House of Lords Bill would not conflict with that underlying intention. What constitutes adequate representation is a matter of judgment, on which opinions may differ widely. Moreover, representation is an attenuated concept, and can be a misleading description, when applied to your Lordships' House. Unlike honourable members in another place, your Lordships are not `representatives' of those who live in a particular area or region, whether Scotland or anywhere else. Whatever may have been the position three hundred years ago, it is difficult now to regard a Scottish peer as `representing' Scotland in your Lordships' House in a way comparable to a Scottish MP's representation of his constituents in the House of Commons. Peers of Great Britain or, since 1927, peers of the United Kingdom lack even the formal nexus with Scotland possessed by peers of Scotland.

  Despite these changes, Scottish interests do not lack support in your Lordships' House. Many peers have Scottish connections and a particular and active interest in Scottish affairs. Many life peers fall into this category. Even if no hereditary peers of Scotland were elected as `Weatherill' peers (as the hereditary peers being excepted under clause 2 are colloquially known), for the foreseeable future there would still remain a formidable Scottish voice in the House, from the present Lord Chancellor downwards. This mode of representation of Scottish interests may be less formalised than in 1707, but this is the reality of political life today in your Lordships' House. There is no reason to doubt the adequacy of this form of representation.

  Mr. Keen did not contend otherwise. His submission was that the vice in the proposed legislation lies in the absence of any express guarantee of adequate representation for the future. The Bill makes no provision for any form of Scottish representation. In breach of the Treaty of Union, the Bill does not guarantee the right of persons having a connection with Scotland to sit in future sessions.

  I cannot accept this submission. As already noted, there is room for argument that the Treaty of Union would be breached if Scotland ceased to have adequate representation in both Houses of the United Kingdom Parliament. If that politically unthinkable event should ever happen, there would be scope to contend that this constituted a breach of a condition implicit in the Treaty. An implied term going thus far is arguable, but I can see no justification for implying into the Treaty a term going beyond this. What matters is sufficient representation in fact. I do not see how, so long as adequate representation exists, there can be any question of a breach of the Treaty of Union. Accordingly, I would answer `no' to the question referred by your Lordships' House.

  In its submissions the Government questioned whether it was appropriate for the Committee to give an opinion on the effect of the Bill. The Government submitted it has never been the practice of the Committee for Privileges to advise on the effect of a Bill still in process of passing through Parliament. In the light of these submissions I add a brief comment on the nature of the question referred to the Committee. The referred question concerns the effect a Bill would have if enacted. As your Lordships know, in general the authoritative interpretation of an Act of Parliament is a matter for decision by the courts of law, not the legislature. This is a constitutional convention with which your Lordships' House is familiar. The present reference was exceptional, as also was the reference on the motion moved by the noble Lord, Lord Mayhew of Twysden. Both references raised controversial issues of interpretation directly affecting the composition of your Lordships' House in the next session of the present Parliament. This is a matter of peculiar concern to your Lordships' House. There can be no question of either of these references departing from the established convention.

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