Select Committee on Privileges Second Report


Hansard's Official Report of Proceedings in the House of Lords, vol 602 cols 885-6 (22 June 1999)


  The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I do not for one moment doubt the sincerity of the noble Lord, Lord Gray, and the noble Earl, Lord Perth. The Conservative Front Bench has supported the amendment. Perhaps I may describe its effect. The amendment proposes that any Peer of Scotland—that means any hereditary Peer created before 1707, of which there are at present 42—can elect from their number 16 to sit in the House of Lords.

  That is discriminatory against non-hereditary Peers, against Peers created after 1707, in the 18th, 19th and 20th centuries. The proposal is put forward as a way, first, of meeting the provisions of the Treaty of Union and, secondly, of providing appropriate representation in the House for the people of Scotland.

  I deal first with the point about the Treaty of Union. We have not in any way sought to abrogate the Treaty of Union. It stands unabrogated. Articles XXII and XXV are the two articles relied on. Article XXII states:

      "That by virtue of this Treaty, of the Peers of Scotland, at the Time of the Union, sixteen shall be the Number to sit and vote in the House of Lords".

  Then follows some irrelevant words. The article continues:

    "and that when her Majesty, her Heirs or Successors, shall declare her or their Pleasure for holding the first or any subsequent Parliament of Great Britain, until the Parliament of Great Britain shall make further Provision therein, a Writ do issue under the Great Seal of the United Kingdom".

  As is apparent from the words of the Treaty of Union, it was explicitly envisaged that the Parliament of Great Britain could amend or change the number both of the Peers of Scotland and of the representatives of Scotland who could sit in this House. There is therefore nothing in the Treaty of Union that prevented the 1963 Act being passed which changed the number of Peers who could sit in the House. There is nothing in the law of this country that prevents it because Article XXII was then repealed by a 1964 and a 1993 Act. Equally, there is nothing that prevents this Bill being turned into an Act of Parliament and changing or eradicating the right of the Scottish Peers to sit. There is absolutely nothing in the legal point.

  To answer the noble Lord, Lord Cochrane of Cults, we carefully considered the points before we proposed the Bill in this form. We are quite satisfied that there is nothing in it.

  A point was made by the noble Lord, Lord Mackay of Ardbrecknish, in support of the proposition that hereditary Peers created before 1707 should have an electorate to elect this House. Article XXV of the Treaty of Union states:

      "That all Laws and Statutes in either Kingdom, so far as they are contrary to, or inconsistent with the Terms of these Articles, or any of them, shall, from and after the Union, cease and become void, and shall be so declared to be, by the respective Parliaments of the said Kingdoms".

  When we read that, it is plain that it is stating that the Treaty of Union overrides any laws which exist at the time and which are inconsistent with the Treaty of Union.

  The argument was put attractively by the noble Lord, Lord Mackay, as it was by the noble Lord, Lord Gray; but with the greatest respect to them, there is absolutely nothing in it whatever.

  Then it is suggested that the way that one deals with the under-representation of the Scots is to have this somewhat unrepresentative group of people. I do not believe that the people of Scotland would be pleased to hear that their representation in the House of Lords was to be pepped up by this unique, perfectly worthy but not very representative group. Every time we have this debate, one looks around the Chamber and sees very eminent life Peers who will be more than able to represent the people of Scotland in the transitional House; and every time I mention names, that is regarded by the noble Baroness, Lady Carnegy of Lour, as a joke. I shall not mention any names, but it is perfectly clear that the Scots are well able to look after themselves. I do not think that there is anything more that I can usefully say about any of these amendments, save to say that now that we have gone through the detail of the matter, I respectively ask that we do not have to return to it again.

  Lord Hughes: My Lords, before the noble and learned Lords sits down, may I ask him, having regard to his opening words about the Treaty of Union, whether he believes that, so long as there are at least 16 life Peers living in Scotland, the spirit if not letter of the treaty would be fulfilled?

  Lord Falconer of Thoroton: My Lords, all I am saying is that neither the Treaty of Union, nor any law which has followed it, has required the Peers of Scotland—that is, the Peers created before 1707—to have 16 of their number in this House.

  The Earl of Perth: My Lords, perhaps I may ask one question. Do I take it that since here and now the Scots are well presented, that will go on and the Government will make sure that they will be well represented one way or another? That is all I am interested in.

  Lord Falconer of Thoroton: My Lords, I feel that the people of Scotland are extremely well represented in the House at the moment, even without the pre-1706 Peers. Their departure would be a loss. It would be for each individual political party, as it nominates people, to make sure that that continues in the transitional House.

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