HL Deb 22 June 1999 vol 602 cc870-88

(".—(1) Nothing in section I of this Act shall be taken to prevent sixteen peers in the peerage of Scotland from sitting and voting in the House of Lords.

(2)At the beginning of each Parliament, the peers of Scotland shall elect from amongst their number, by open election and plurality of votes, the said sixteen peers, who are to sit and vote in the House of Lords during that Parliament.

(3)In the case of the death or legal incapacity of any of the said sixteen peers, the peers of Scotland shall elect another of their number in place of the said peer.")

The noble Lord said: My Lords, in moving Amendment No. 28A I should like to speak also to Amendment No. 28B. The latter is but a minor variation of Amendment No. 28A. Just in case one or other contains a technical drafting defect, we have decided to carry out a belt-and-braces exercise in relation to these two amendments. However, both amendments cover exactly the same point. We return to something discussed at Committee stage: namely, the impact of the Bill on the Treaty of Union between Scotland and England and the two Acts, one passed by the Parliament of Scotland before it ceased to exist and one passed by the Parliament of England before that ceased to exist. I emphasise the reference to the Parliament of England as well as the Parliament of Scotland for reasons that I shall turn to in a moment.

The noble and learned Lord, Lord Falconer, as one would expect, gave full, interesting and useful answers, but, naturally—one would do the same in his place—only to those questions to which it was easiest to give such answers. He slightly slid away from one or two questions and others just slipped to the bottom of the note-taking pile. My noble friends and I thought that it was worth returning to the issue to give the Government the opportunity to discuss again the impact of this Bill on the treaty and whether or not it infringed articles within it.

One of the arguments of the noble and learned Lord was that if I was right and the Bill infringed the treaty, clearly so did the 1963 Act—because, presumably, the English Parliament agreed to the 16 Peers from Scotland in 1707 on the basis that that was a reasonable balance at the time— by upsetting the balance and introducing about 15 further Scottish Peers. When my noble friend Lord Gray speaks, he will have more detailed knowledge of that than I do, having been present at the time and having been an active player in the last election for the 16 Members of the Scottish Parliament.

The argument of the noble and learned Lord was that if I were right and the treaty could not be changed because the Parliament of England no longer existed, just as the Parliament of Scotland no longer existed, the 1963 Act could not have been passed and the remaining Scottish Peers who were not elected could not have come to your Lordships' House.

The point which I wish to draw to the noble and learned Lord's attention is that I do not believe that the decision by this Parliament in 1963 upset the principles on which the treaty was based. When the treaty was written, and the 16 were laid down, it was against the background of a smaller House of Lords. Therefore, adding 15 Scottish Members clearly did not infringe the Scottish Parliament's position. It wanted at least 16 to get, let us say, 30. It was not a breach of that. The noble and learned Lord argued that 30 was a breach of what the Parliament of England decided.

The fact is that the increase in membership of the House had changed the historical reasons for the balance which was laid down in the treaty and agreed between the governments of Scotland and England and then put into the two Acts of both Parliaments. Therefore I do not think that the position is the same as in 1963. Here we are removing the right of any of the Scottish peerage to sit in your Lordships' House; and on any reading that has to be a breach of the Treaty of Union. Article XXII is quite clear on that issue.

Related to that was the discussion on Lord Cooper's judgment in the case of Hamilton and MacCormick v. The Lord Advocate on the question of the style and title of Her Majesty the Queen. The argument which MacCormick and Hamilton put forward was that the Queen should be Elizabeth I of Great Britain and not Elizabeth II. Those of us alive at the time will remember that it was a live issue in Scotland. Pillar boxes received visits from explosives when they appeared with "EIIR" on them. It did not get much further than that, except to the court.

The court found against MacCormick and Hamilton. Mr Hamilton is still alive and, as I mentioned in Committee, he was a candidate for the Scottish National Party. He failed to be elected. The other person, John MacDonald MacCormick is now long dead. But, as I explained to the House, one of his sons, well known to the Lord Chancellor and perhaps to the noble and learned Lord, Lord Falconer, Neil MacCormick, was until the beginning of this month a serious professor in the Law Department at Edinburgh University. He is now a Member of the European Parliament having been elected by the amazing system the Government chose to deal with the European parliamentary elections. Professor MacCormick was number two on the SNP list and now joins the European Parliament. So there is an interesting link between today's politics and the politics of 1953.

While the court held against them as regards "EIIR", Lord Cooper made perfectly clear his view on the questions of the characteristics of the treaty, especially of the sovereignty of Parliament. I quoted the judgment in Committee. I shall quote it more succinctly by missing out some of the sentences that do not matter, as long as no one complains they are incomplete quotations.

In his judgment, Lord Cooper said: lest this case should go further, I shall briefly express my opinion. The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law. It derives its origins from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further. the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contains some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions. The Lord Advocate conceded this point by admitting that the Parliament of Great Britain 'could not' repeal or alter such `fundamental and essential' conditions.

I shall not read out some of the remainder that I read, but the question I pose again to the noble and learned Lord is this. Why is it that Article XXII does not fall to be considered along the lines of the Lord Cooper judgment? It is a simple question which the noble and learned Lord might like to address again to see whether he can convince me more than he succeeded in doing on the previous occasion. Those are my first and second points which the noble and learned Lord should try to answer this time.

The noble and learned Lord also failed to answer the point made by the noble and learned Lord, Lord Jauncey of Tullichettle. At col. 184 of the Official Report of 27th April, he pointed out, in endorsing the remarks of the noble Earl, Lord Mar and Kellie—I am sure that he will speak later—that, The effect of the Bill as drafted will be that, for the first time since 1707, there will be no statutory right of representation for Scotland in this House".

He continued: It is a matter that the Government should think worthy of consideration, even if not in the form of this amendment".

The noble and learned Lord did not address himself to the point that the noble and learned Lord, Lord Jauncey of Tullichettle, made. Nor did he address himself to my rather simpler question—not being a lawyer. It was straightforward. Why, as the Bill undoubtedly amends the Treaty of Union-we are agreed that it changes the Treaty of Union—was nothing put in this Bill similar to Section 37 of the Scotland Act which this Parliament passed just over a year ago? Section 37 boldly states: The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act".

If it were thought prudent to put that in the Scotland Act, I suggest to the Government that it might be prudent to put it in this Act, as quite clearly what is proposed by the Bill impinges not only on the two Acts but also on Article XXII of the treaty itself. It is true to say also that Article XXII was never repealed by the 1963 Act. So if the 1963 Act falls, there is an argument that we shall go back to the treaty. That is why my amendment takes us back to before the 1963 Act incorporating in this Bill the treaty itself so that 16 members of the peerage of Scotland can be elected to represent in part, along with those of us life Peers from Scotland, the position of Scotland within what is supposedly an equal partnership union. I beg to move.

9 p.m.

Lord Gray

My Lords, in rising to support the amendments of my noble friend Lord Mackay of Ardbrecknish, I shall speak to my Amendment No. 37, with which his are grouped.

Like my noble friend, I wish to raise some points which arose when I moved a not dissimilar amendment in Committee. My noble friend referred to 1963. In 1963 the representative Peer system was replaced, on a recommendation of the Joint Select Committee on House of Lords reform. The committee gave two reasons for its recommendation: first, the large increase in the membership of the House of Lords since the Union: secondly, the small number of non-representative Peers of Scotland. At that time, there were 15; today there would be 25.

The committee subsequently added a recommendation that the words in Article XXII of the Acts of Union governing the election of representative Peers should be repealed. Such repeal was, of course, necessary to implement the committee's primary recommendation, and was made with the passing of the 1963 Peerage Act.

It is beyond question that the intention and effect was to substitute all the Peers of Scotland for the representative 16, and sensibly to modernise and enhance Scottish representation in this House, in keeping with the age in which we live. Most certainly, it was not intended to remove specifically guaranteed representation.

In Committee, the noble and learned Lord, Lord Falconer of Thoroton, cited the repeal of the whole of Article XXII from both the Scottish and English Acts of Union as meaning that the provision was spent and that was an end of the matter. My reaction to that is to quote from Chapter 5 of Article XXV of the Union Acts to which my noble friend has just referred. It states: And it is hereby stated and ordained, That this Act of Parliament, with the Establishment therein contained, shall he held and observed in all Time coming, as a fundamental and essential Condition of any Treaty or Union to be concluded between the two Kingdoms, without any Alteration thereof or Derogation thereto in any Sort for ever". Surely to argue in the face of those words that Article XXII is spent and that is the end of the matter is extraordinary and ignores the nature of what was done in 1963.

In 1963 Parliament respected and remained within the bounds of those words that I have just quoted by using the enabling words in Article XXII, which are: Until the Parliament of Great Britain shall make further provision therein". Parliament did make further provision therein. Scots Peers were treated as a group in 1707 and again in 1963. Section 4 of the 1963 Peerage Act quite clearly stands in place of the representative provision of Article XXII.

The wording of Section 4 treated Scots Peers as a group, and equating their rights therein with those of United Kingdom Peers was merely the most expedient method of achieving enfranchisement and should not be used now as a device to bring individual Peers of Scotland within the ambit of Clause 1 of the Bill and end the Union position.

It is perhaps worth commenting as an aside that resisting my arguments for those of my noble friend on the ground that Article XXII is spent, as was done on the last occasion, surely raises a question concerning another place, because the article also dealt with representation of Scotland in the House of Commons. In replying to a point made by my noble friend Lord Northesk during our Committee debate, the noble and learned Lord, Lord Falconer, said: I believe that I have set out the constitutional position, which is that this Parliament is sovereign in relation to all previous Acts of Parliament".—[Official Report, 27/4/99; col. 193.] No doubt that is generally speaking correct., but I do not believe that such a dictum can be applied against the words I quoted from Article XXV on the implementation of a treaty between sovereign states, which were surely intended to endure while the Union does.

Much was said in Committee about the current level and quality of Scottish representation in your Lordships' House. I made it clear that I accepted what was said, but that my concern is solely with the treaty principle.

However, in drafting my Amendment No. 37, I have taken note of other points made. The amendment this time restricts eligibility for election to Peers of Scotland who are domiciled there and extends the electoral college to all Peers domiciled in Scotland. I hope that this modernisation of the scheme will commend it. Information which I have gathered for this debate shows that there are 110 Peers who give a Scottish address; 70 of them are hereditary and 40 are life Peers. At this time, there are 41 Peers of Scotland only, one of whom is a minor. Of the remaining 40, I believe that approximately seven would be ruled ineligible on domiciliary grounds.

With devolution in place, it is important that we take care not to retract anything from the bargain which created the Union. I hope that my arguments and those of my noble friend will persuade the House and the Government that a case for an amendment such as this has been made.

Lord Taylor of Gryfe

My Lords, I am a proud and privileged member of the Scottish Peers Association because I believe that the Scottish Peers have made a notable contribution to the affairs of this House. They meet as a group to discuss Scottish affairs and try to reach a consensus on matters affecting the welfare of Scotland. I admire the tenacity of my fellow members of the association who seek to establish the rights of Scottish Peers in the arrangements for the future of the House of Lords. But I say to them quite seriously that if ever I heard a case for a lost cause, this is it.

During the debates in Scotland on devolution, I was not enthusiastic for a Scottish Parliament. I held my peace and occasionally spoke on the subject in the debates in Scotland. At town meetings in which I participated, I pointed out that one of the implications of devolution was the abolition of the House of Lords in Scotland on all matters which seriously affect the daily life of the people of Scotland; education, health and so forth.

However, during those meetings I found little concern for the abolition of the House of Lords and its rights to examine Scottish legislation. Indeed, that is emphasised by the list of people who are invited to the opening of the new Scottish Parliament, on which great occasion there are to be celebrations in the city of Edinburgh. I saw a notable list of football players, comics, singers and others who will join the festivities, but I failed to see a reference to any Member of the House of Lords who would be present at this execution of their powers.

The Scottish people are not rising up in anger about the prospect of Scottish Peers disappearing in the new arrangements. I do not believe that it is a matter of great concern to them. It is a matter of concern to me because I have a sentimental desire to see some of my good friends who are fellow Scottish Peers playing a part in this assembly. Nevertheless, the mere fact that we have enacted a Scottish Parliament and devolved great powers to it makes our special contribution rather irrelevant. I do not believe we can sustain a special place for Scottish Peers in the new arrangements.

As a life Peer from Scotland, I am hopeful that life Peers present and to be appointed will play a continuing and notable part in the proceedings of this House. There is no reason why life Peers should not continue to play that part and keep an eye on matters of concern to Scotland. But I tell your Lordships that if you incorporate in this Bill special provision for so many Scottish hereditary Peers as such in this House, that will add to the backlash that is taking place in England now in relation to Scottish power in national affairs. After all, we do not so badly; out of 21 members of the British Cabinet, six are Scotsmen. That is a fair representation and proves the fact that Scotland's voice is being heard somewhere in the centres of power.

I suggest to my good friends that to push this matter and to demand a special category in the new arrangements in the new century, whatever the historical justification in the Act of Union, would be resented in England and would do us no good at all. In addition, I do not believe that the Scots are rising up in anger at the provisions of this Bill. Consequently, I regard the amendment as irrelevant and not acceptable.

Lady Saltoun of Abernethy

My Lords, although I am no longer secretary of the Scottish Peers Association and have not been for the past two or three months, I should like very much to correct the impression which I certainly gained from the noble Lord, Lord Taylor of Gryfe, that the Scottish Peers Association was in some way connected with this amendment. That is not the case. This amendment was spoken to by the noble Lord, Lord Gray, but there are no amendments on the Marshalled List sponsored by the Scottish Peers Association. I have risen to say that in a great hurry because I do not see any of the officers of the association present here tonight. It is very important that the matter stands corrected. Having said that, I entirely support the amendment spoken to by the noble Lord, Lord Gray. If he chooses to press it to a Division, I shall certainly support it.

9.15 p.m.

Lord Forbes

My Lords, I have a little difficulty with Amendment No. 28A. Whereas it follows the lines of the Treaty of Union that Scotland should be represented by 16 Peers of Scotland in your Lordships' House, that came about after a time when Scottish Peers crossed the Border only to slaughter the English. Before the Union, few had the temerity to live in England. Today, thanks to the Union, many Peers of Scotland are domiciled in England, even in London.

As things stand today, I believe that my Front Bench should put any weight that it may have behind the more appropriate amendments moved by my the noble Lord, Lord Gray. His amendments deal with persons of the peerage domiciled in Scotland representing Scotland in your Lordships' House.

Lord Monro of Langholm

My Lords, it is for the Government to indicate how there will be a reasonable representation of Scottish Peers in this House in the future. I have listened to the very powerful argument of the noble Lord, Lord Gray, and of my noble friend Lord Mackay of Ardbrecknish. It is right to say that at present a substantial number of Scottish hereditary Peers and a limited number of Scottish life Peers attend this House regularly.

I should like to know how the Government visualise that representation continuing in the future. They may well say that it is inconceivable that there will not always be a sufficient number of life Peers from Scotland domiciled in Scotland, which is the important word, to represent the Scottish view in this place.

We have to bear in mind what has happened over recent weeks. The Leader of the Scottish Parliament, Donald Dewar, has indicated that there will be United Kingdom legislation accepted in Scotland and passed in a rapid fashion by the Scottish Parliament. Whatever composition this House may have in the future, that means it will have an important part to play in the United Kingdom legislation that will affect Scotland. If the Government are then going to say, "You have a much less important part to play in Scotland now", how is it that they continue to support the idea of 72 Members of Parliament in Scotland who have comparatively little to do and yet receive very substantial financial support for running their constituencies? Of course, when that is doubled up with the large allowances given to the Members of the Scottish Parliament representing the same constituencies, by and large the taxpayers, whom we all represent, pay huge sums of money through double representation in Scotland and England relative to constituency offices and administration.

If the Government feel that the duties of this House will be much reduced, they must accept the principle behind the West Lothian question and that the duties of the Westminster Scottish Members of Parliament will also be substantially reduced. They must get on with asking the Boundary Commission to press ahead with resolving the number of constituencies in Scotland in the future. The general feeling is that the number will be cut from 72 at present to around the low 50s.

There appears to be no enthusiasm in the Government to get on with that. Indeed, we called fur that over a year ago. Had the Government listened to us then, they could have had the Boundary Commission organised in time for the next general election. As the Government rely on their huge Labour majority in Scotland to maintain their majority in Westminster, they are likely to be unenthusiastic about reducing the number of constituencies in Scotland.

How will the Government ensure that there will be sufficient life Members of Parliament in this House to carry out such Scottish legislation as will come through the two Houses of Parliament in the future? I know that there will be a considerable number of hereditary Scottish Peers, led by my noble friend Lord Strathclyde, in the House, but there is nothing on paper that will guarantee that there will be full or adequate Scottish representation in the House if amendments such as that proposed by the noble Lords, Lord Gray and Lord Mackay, are not accepted. I look forward to hearing what the Government have to say to ensure that there will be sufficient representation here to fulfil our duties relative to Scotland in the future.

The Earl of Perth

My Lords, I speak partly for personal reasons. I must be the only remaining Peer of the 16 Scottish Peers who can still take part in this issue.

Lady Sartoun of Abernethy


The Earl of Perth

My Lords, I well recall how in 1953 I fought in a by-election and won by a close margin as there was a tie. It was a most spectacular affair. The event took place in public in the Long Room where portraits of all the Kings of Scotland are to be found—some of them historical and some of them, I dare say, imaginary—but it was a moving procedure. Perhaps I may be allowed one personal memory of that before turning to the main theme of my argument. The Lord Clerk Register, who was presiding, called on the various candidates in the election to say how they voted. I was the first one called upon because I happened to be an Earl and the other was a Lord. I said. "I vote for myself", whereupon the whole house, including a large number of the public, quite rightly broke out in laughter.

I have listened with the greatest interest to the legal arguments that have been put forward. They have impressed me. I was upset by the Act of 1963 because it seemed that it killed all our hopes of maintaining the idea of special Scottish Peers to represent Scotland. I and several others opposed becoming United Kingdom Peers for the reason that we foresaw just the sort of argument that we are having today. I for one tried very hard, but I did not have the full support of all the Scottish Peers and that was the cue for the Government—and it was a Conservative government—to say, "Well, you haven't got all your old troops with you." There it was.

I think the most important argument is that we do not know what is going to happen with the new Scottish Parliament and the English or the Westminster Parliament. It may well be that there is a real role for the equivalent of the Scottish Peers to play. I do not know in detail what form it should take, but it is not enough to know that there will probably be some Scottish Peers by the fact that they are life Peers unless it is somehow stated by the Government that they will ensure that this happens. That is my first point.

My second point is to ask the Government not to get involved in the legal arguments for or against. I do not fully understand them but I think they were powerfully put forward by the noble Lords, Lord Mackay and Lord Gray. I ask the Government not to overrule them, as it were, but to keep the situation open. I, for one, would hope that the Government might give us that assurance and say, "We are not going to commit ourselves one way or the other at the present time: we do not necessarily accept the arguments put forward by the noble Lords, Lord Mackay and Lord Gray, on the legal side, but we see the force of ensuring that there is some representation coming from the Scottish Parliament."

That, as we have heard from the noble Lord, Lord Taylor, is the part that we have all played in the Scottish Peers Association. We would wish to have something like that. I believe myself that in the years to come the Scottish Parliament itself would welcome some form of Scottish representation, whether by right or by the practice of ensuring that there are a certain number of life Peers. I do not know but as things stand it is perfectly possible that over a period of time there would be nobody to talk for Scotland, and that would be tragic.

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 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.

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 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 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.

Lord Elton

My Lords, I rise merely as one of the few English voices in this debate to ask the noble and learned Lord who is to reply not to lose sight of the cogent arguments with which my noble friend Lord Gray introduced his amendment and which go back to the treaty. It takes two sides to make a treaty and so far we have heard everything that Scots expect from their treaty. But it is our treaty too, and if one side loses its rights so does the other. That is something that the Government cannot afford to do either, because if they abrogate the treaty in any way they will soon find the Government of Spain requiring them to abrogate the provisions of the Treaty of Utrecht, with incalculable consequences for the nationality of Gibraltar. In law we need a cogent and sufficient answer to my noble friend's point.

9.45 p.m.

Lord Rowallan

My Lords, I am very grateful to the noble and learned Lord, Lord Simon of Glaisdale, for raising this matter. Many noble Lords may have forgotten that there is a huge difference between the Scottish Peers and the Peers of Scotland. In this group of amendments we are talking about the Peers of Scotland. I think there is an argument here. I must admit that when it comes to a Scottish Peer—of which I am one—domiciled in Scotland, there is a very difficult argument. In fact, I do not think there is a strong argument at all, especially in the light of the debate we have had about the Weatherill agreement and everything else today.

However, with the Peers of Scotland we have a very strong argument. Devolution is one thing but it deals only with devolved subjects; the sovereign Parliament is still Westminster. The Treaty of Union was quite clear when it set out the Union roll; it said that there would be 16 elected Members. That is extremely democratic; it cannot be anything else. It is certainly not any form of selection.

It is now very important that we ensure representation of Scottish Peers of Scotland in your Lordship's House—if for no other reason than that, with the new proposals brought forward by the noble and learned Lord the Lord Chancellor today, it will be very hard for people down here to know what Scottish Peers are doing in Scotland or to know what is going on up there. This means of getting some Scottish Peers of Scotland here is a very sensible idea.

My noble friend Lord Gray raised a very important point. It is quite clear in the Union roll and in the Union that Articles XXII and XXIII are never to be changed. My noble friend then raised a very important point when he moved on to Articles XXIV and XXV. We must look at this very carefully to ensure that we are not breaking a treaty of very long standing.

Lady Saltoun of Abernethy

Before the noble Lord sits down, to the best of my knowledge there are no such animals as Peers of Scotland; there are Scots Peers. There are English Peers, Scots Peers, Irish Peers, GB Peers and UK Peers, but Peers of Scotland are not animals that are known to me.

The Duke of Montrose

My Lords, many issues are not entirely clear at the moment. Perhaps I may say something in an attempt to add clarity to some of them. I am sure that the Front Bench opposite will give your Lordships some clarification; we shall be very interested to hear it. As my noble friend Lord Mackay of Ardbrecknish has introduced the opinion of the Lord Advocate Cooper into this matter and the fact that he was puzzled as to why two sovereign parliaments coming together would appear to have adopted purely the practices of one of them, I made some inquiries of the Library. The answer I received perhaps sheds a little light on the matter.

We are all familiar with the position that the Scottish Parliament was prorogued and not reconvened until the present institution was put in place. On 24th April 1707 the House of Lords and the House of Commons in Westminster were prorogued. On 30th April the Lords Commissioners read a proclamation from the Queen, which contained a declaration to the effect that Parliament should continue and would constitute the representation of England in the first Parliament of Great Britain. From this has perhaps slowly emanated the idea that most of the traditions carried on were those of the former English Parliament.

I hope noble Lords will forgive me if I hark back to something I referred to at Second Reading. As we consider the reconstitution of this Parliament, we should look at how it becomes the Parliament of the United Kingdom in every aspect and does not rely too much on the traditions of one other Parliament.

Perhaps I should mention the feelings of the noble Lord, Lord Taylor of Gryfe, about the opening of the Scottish Parliament. As far as I know, the guest list has been firmly in the control of the party opposite. No doubt some Peers, appointed or hereditary, would have attended had they been asked. Perhaps it is an interesting reflection on the way in which matters might turn out there. The guest list has not been based on proportional representation.

Lord Cochrane of Cults

My Lords, I hope that mine is a slightly independent voice. I have lived in Scotland for many years. I am a Peer of the United Kingdom. I feel that this debate, on points which even after a good deal of study seem somewhat arcane, should have been considered by the Government before the Bill was prepared. There is substance in them. I am indebted to the noble and learned Lord, Lord Simon of Glaisdale, for defining "domicile" so clearly, and to my noble kinsman on the Liberal Democrat Benches for describing what happened many years ago. But we are faced with today's situation. We must consider not what is best for any party, but what is best for the country. If, as is claimed, the treaty obligations are valid, they must be taken into account. I hope that in replying the Minister will feel able to deal with the points of substance that have been raised in many parts of the House, and not merely "dust them off' as trifling and inappropriate.

When I opposed the Bill earlier, I was described by the noble and learned Lord the Lord Chancellor as "castigating" it. That is quite a strong word. I hope that I was only infrequently castigated at school, but that is by the way. The Bill is not one that can be supported on the ground that it will make the lot of the people of this great country better; it seems unlikely to do so. Therefore, this point should be most carefully considered. The objections, points and problems that have been raised on all sides of the House must be considered. I hope that the noble and learned Lord who is to reply will accept that.

Lord Mackie of Benshie

My Lords, I have had a good dinner. I am therefore inclined to look at these amendments with a certain amount of sympathy—but really, they are nonsense! How can we expect an electorate of the Scottish Peers to be a base for any proper representation in this House? The idea is not up-to-date or sensible. There are a large number of Scottish Peers in this House. I am not sure whether I am included among them. For an electorate of that sort to think itself democratic in electing a number of Members of this House is total gibberish.

If we are to have proper representation in Scotland, any committee properly appointed should consider all the aspects of Scotland—industrial, agricultural and so on—and appoint people from Scotland, hereditary Peers or others, or people who will be promoted to become Peers. But to elect 16 Members from among the hereditary Peers in Scotland is not in the present context sensible.

Baroness Carnegy of Lour

My Lords, before the noble and learned Lord replies, will he bear in mind the point about which my noble friend Lord Monro reminded the House; namely, the large amount of business relating to Scotland that will continue to be taken in this House, which is reserved to Westminster, and which will require proper insight on the part of a number of Scots Peers?

I have recently spent a great deal of time on the Health Bill and the Tax Credits Bill. The Welfare Reform and Pensions Bill is before the House, and we have just considered the Water Industry Bill. Matters relating to health and water will not come before the House again because they are devolved, but others will.

We shall have trade and industry matters, employment legislation, and we shall continue to follow carefully the affairs of Kosovo where many Scots military personnel are serving. There will be mainstream scrutiny of the European Parliament's goings-on and of European legislation. We understand that there will be many problems with the Human Rights Act. Those are just some of the matters we shall have to discuss.

I hope that the noble and learned Lord will not joke that there will he enough of our life Peers. There will not be enough of our life Peers and I hope that whatever way the Government handle the appointment of people to the Parliament, we shall hear something about our concern about the hereditary Peers. If the noble and learned Lord does not accept the amendments, we wish to hear how the matter will be dealt with.

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 follow 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 he 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 respectfully ask that we do not have to return to it again.

Lord Hughes

My Lords, before the noble and learned Lord 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 represented, 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.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the noble and learned Lord for his reply and for dealing with the actual issue of the Treaty of Union and not some of the surrounding issues that have arisen during the debate. We shall come to the question of Scottish representation in general terms in the next group of amendments. I am always cautious when the noble and learned Lord, Lord Simon of Glaisdale, asks me a question that sounds particularly legal, because I am sure that he knows the answer before he asks it. Therefore, I say to him that what I intend to suggest in my amendment, as to the Peers and peerage of Scotland, are those Peers who are solely Peers in the peerage of Scotland and not those Peers who have Scottish peerages and have obtained along the way, so to speak, or their ancestors have, peerages of either Great Britain or the United Kingdom. I hope that that answers that question.

I was interested in the intervention of the noble Lord, Lord Taylor of Gryfe. He described my arguments as a lost cause. I say to the noble Lord that it is a little like persuading his government to plant conifers in England—a lost cause in which we have both been involved to some extent.

As far as the opening of the new Scottish Parliament is concerned, I hesitate to say it, but my noble and learned friend Lord Mackay of Drumadoon and I seem to have received the invitations. We will therefore have a watching brief for the rest of your Lordships' House to make sure that it does not exceed its powers on its first day of sitting.

To return to the arguments of the noble and learned Lord, I think what he has said to me, if I can paraphrase it, is that although he does not disagree with Lord Cooper in his judgment, he is simply pointing out that the Articles XXII and XXV fall to be considered under those articles of the treaty which could be altered, could have subsequent modification, and were not unalterable in all time.

Lord Falconer of Thoroton

My Lords, does the noble Lord recall that in our debate in Committee I made it clear that the general view was that Lord Cooper's words, which were obiter—meaning that they were not necessary for the decision that he reached—were not regarded as representing the law? Indeed, they have not been followed in any subsequent cases. I provided a detailed answer to that point in Committee and I am surprised that the noble Lord has not come back with any detail to suggest that I was wrong on the previous occasion. Does he not recall that and does he not believe that he would be wrong to think that that was my position?

Lord Mackay of Ardbrecknish

My Lords, perhaps I may say that the noble and learned Lord explained it better today. At least I have understood it better, but that is probably my fault. We have had an interesting debate. I am persuaded, unless someone convinces me otherwise after they read what the noble and learned Lord has said, that what the Government are doing in the Bill does not infringe the Treaty of Union. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 28B not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 29: After Clause 2, insert the following new clause—