United Kingdom House of Lords Decisions

The question on Lord Gray's motion was considered by the Committee for Privileges, comprising Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Boston of Faversham, Lord Campbell of Alloway, Lord Mowbray and Stourton, Lord Nathan, Lord Stabogli and Lord Wigoder, on 20 October 1999. Eo die the committee announced that it would unanimously answer the question in the negative.

On 12 November 1999, the following opinions were delivered.

LORD SLYNN OF HADLEY—My Lords, The question referred to the Committee, on the motion of the noble lord, Lord Gray, is ‘Whether the House of Lords Bill (as amended on report) would, if enacted, breach the provisions of the Treaty of Union between England and Scotland.’

That Bill provides in cl 1, subject to exceptions specified in cl 2, that ‘no-one shall be a member of the House of Lords by virtue of a hereditary peerage’. By cl 7 of the Bill, cl 1 is to come into force at the end of the session of Parliament in which the Bill is passed, which explains why this matter has been treated as urgent.

The Government initially raised the preliminary question as to whether it was appropriate for the Committee to deal with this matter at all, but the Advocate-General, in her speech, accepted that the question referred should be dealt with on its merits.

For my part, I have no doubt that the Committee should, and indeed must, reply to the question. It has been referred by the House to one of its Committees and it does not seem to me to be appropriate or even possible for the Committee to challenge the vires of that reference. Such a challenge must, and here did, take place on the debate in the House as to whether there should be a reference.

Whether it is desirable, as opposed to possible, for such a reference to be made is a question for the House. It seems to me, however, (though the Committee does not have to decide the point) that there is force in the argument that questions as to the effectiveness of a Bill to achieve the Government's stated objective should not generally be referred to the Committee. That issue is a matter for the House to debate; if enacted, the terms of the Bill may fall to be considered by the courts if a challenge is brought there. In the present case, however, which concerns the composition of the House and the rights of existing members of the House, questions of constitutional importance, it is in my view appropriate that the questions should be dealt with at this stage.

The essential matter raised by the question referred is whether art XXII of the Act of 1707 of the Parliament of Scotland ratifying the Treaty of Union and the Act of Union of the Parliament of England of 1706 would be breached if the provisions of the Bill were enacted. That article provided 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, and Forty five the number of Representatives of Scotland in the House of Commons of the Parliament of Great Britain.’

It continued, in summary, that following a declaration by the Queen, a writ should be issued under the Great Seal of the United Kingdom, directed to the Privy Council of Scotland requiring them to cause 16 peers ‘who are to sit in the House of Lords to be summoned to Parliament and Forty five Members of the House of Commons of the Parliament of Great Britain according to the Agreement in this Treaty’. When the date and place of the meeting of the first Parliament of Great Britain was appointed by the Queen ‘a Writ shall be immediately issued under the Great Seal of Great Britain, directed to the Privy Council of Scotland, for the summoning of the Sixteen Peers and for Electing Forty five Members, by whom Scotland is to be Represented in the Parliament of Great Britain’.

Lord Gray's question raised important matters of both an historical and a constitutional nature. I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Hope of Craighead. He has traced the history of the Acts of Union and has analysed clearly and in depth the issues raised in arguments before the Committee. I do not think it assists to set these matters out again in detail and I gratefully refer to Lord Hope's analysis. I agree that the question should be answered as he proposes. I confine myself to stating briefly my conclusions.

In the first place, if the meaning of art XXII in the two Acts is treated as one of statutory construction, the position in my view is plain. The Parliament of Great Britain, and subsequently the Parliament of the United Kingdom, had power under the constitutional doctrine of parliamentary sovereignty (and whatever the position under the law of Scotland and England previously) to amend and to repeal the provisions of those Acts. The Acts have been amended from time to time, both in relation to the representation by the peers and in the House of Commons.

But conclusively, in my view, sec 4 of the Peerage Act 1963 provides under the heading ‘Scottish peerages’: ‘4. The holder of a peerage in the peerage of Scotland shall have the same right to receive writs of summons to attend the House of Lords, and to sit and vote in that House, as the holder of a peerage and the peerage of the United Kingdom: and the enactments relating to the election of Scottish representative peers shall cease to have effect.’

In sched 2 to the 1963 Act there is listed amongst enactments repealed by that Act art XXII of the Treaty of Union so far as that article relates to peers of Scotland.

The Statute Law Revision (Scotland) Act 1964 repealed art XXII of the 1707 Act (the Scottish Act) as being one of the provisions of the Acts of the Parliament of Scotland which were ‘obsolete, spent or unnecessary or have been superseded by other enactments’. The Statute Law Repeals Act 1993 repealed art XXII of the 1706 Act (the English Act).

The terms of the proposed Bill could not, in any view, be in breach of the statutory provisions of art XXII.

The more complex question is whether the Bill, if enacted, would violate art XXII of a Treaty which is an entrenched part of the constitution of the United Kingdom. Whether there was a Treaty is a matter of interesting debate amongst academic lawyers. For my part, I would accept that there was an international treaty between England and Scotland (as it has often been so called in the past), but since neither state has existed as such since 1707 there is no party to the treaty which could enforce it. But the argument goes further—ie that whether or not there was a treaty in international law and whether or not it is capable of being, in some ways, still in force, the provisions of art XXII constitute a fundamental law of the constitution which is entrenched in the sense that Parliament cannot legislate in violation of it.

For my part, I doubt on the arguments which have been advanced whether a provision, even if regarded as fundamental and as part of the constitution, cannot be altered by Parliament. But assuming that the provision of the ‘Treaty’ of Union could be entrenched, the crucial question is whether art XXII is entrenched in the sense that it cannot validly or lawfully be altered by Parliament. It is not enough to say that some articles of the Treaty are fundamental and were intended to continue—thus art I provides that the two kingdoms shall ‘for ever after be United into One Kingdom by the Name of Great Britain’, by the provisions in arts XVIII and XIX to preserve laws creating private rights and the Court of Session. The sole question is whether art XXII itself was entrenched so as to be unalterable.

It is to be noted that art III provides that the United Kingdom of Great Britain shall be represented by ‘one and the same Parliament to be stiled the Parliament of Great Britain’. It might be thought that if that could be changed so could a provision relating to the composition of the Parliament. And clearly changes have been made. It is now the Parliament of the United Kingdom and there have recently been measures of devolution.

The object of art XXII was both (a) to provide for representation of peers chosen by the Privy Council of Scotland and members of the House of Commons who were to be elected and (b) to impose a limit on that representation in the light both of the number of peers of Scotland (then not far below that of England) and the number of electors in Scotland in relation to the number in England. Those numbers were chosen in the light of current conditions. The number of peers and the number of electors have since changed and the Privy Council of Scotland no longer exists. There were subsequently created peers of Great Britain which would affect the relative proportion of the peers of Scotland in the House. Then the 1963 Act substantially changed the position of those holding peerages of Scotland. Moreover, the second part of art XXII clearly contemplated procedural changes for the summoning of peers and for elected members of the House of Commons.

I do not regard it as conclusive that there are no specific words of entrenchment in art XXII as there are in some other articles. The context and the words might make that a necessary implication. But I am quite satisfied that this article was not intended, and is not to be read, as fixing for all time a representation of 16 or any other precise number of peers. It must have been intended that changes could be made with changed times, so long as Scotland was not discriminated against unfairly in comparison with England. I do not think that it has been established, or indeed seriously suggested, that there has been such discrimination. On the contrary, the 1963 Act increased the number of peers of Scotland who can sit in the House; there is a significant number of life peers from Scotland; the present Bill treats all peers currently entitled to sit in the House, whether created of England, Scotland, Great Britain or the United Kingdom equally. Most of the hereditary peers lose their seats, all are equally eligible to be elected under cl 2. Even if art XXII can be read as implying a legal obligation to provide for representation, or ‘adequate’ representation (which I do not consider that it can), it has not been established that in the changed circumstances and allowing for the presence of life peers there is a failure to provide such representation. I add that, unlike members of the House of Commons, it does not seem to me that the 16 peers were to represent the people or the nation of Scotland but, if truly representative at all (rather than selected from the peerage of Scotland) they represented that peerage.

Although Lord Gray has, in my respectful opinion, raised an important question of great interest the answer in the end is that the Bill if enacted would not breach the provisions of the Treaty of Union between England and Scotland.

LORD NICHOLLS OF BIRKENHEAD—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 25 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’ (art I).

Article III 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 XXII is the lynchpin of Lord Gray's case. Article XXII 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, art XXII provided that of the peers of Scotland at the time of the union, 16 should be the number to sit and vote in the House of Lords and 45 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: art XXII is no longer on the statute book. The Peerage Act 1963, sec 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 art XXII, 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 art XXII of the Scottish Act of Union was repealed, as spent or superseded, by the Statute Law Revision (Scotland) Act 1964, and the whole of art XXII 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 art XVIII 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. Senior counsel, 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 ‘one 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.

Counsel did not contend that the provision in art XXII, for 16 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 art XXII 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 art XXII 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 art XXII provision for the election of 16 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 art XXIII. Clear language, therefore, would be needed before art XXII could sensibly be interpreted as intended to preclude all change. Art XXII contains no such wording.

Counsel's contention, then, did not fasten onto the particular provision in art XXII. Instead, his submission focused on the purpose underlying the article. His submission was to the following effect. The underlying purpose of art XXII was that Scotland should be represented adequately in both Houses of the Parliament at Westminster. Article XXII 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 art XXII 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 art XXII of the Treaty of Union. Counsel 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 300 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 cl 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.

Counsel 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.

LORD HOPE OF CRAIGHEAD—My Lords, On 27 July 1999, after a brief debate on a motion in the name of Lord Gray, the House referred the following question to the Committee: ‘Whether the House of Lords Bill (as amended on report) would, if enacted, breach the provisions of the Treaty of Union between England and Scotland’. On 20 October 1999 the Committee, having heard counsel on behalf of Lord Gray and Her Majesty's Government, decided to report to the House that it was the unanimous opinion of the Committee that the House of Lords Bill (as amended on report) would not, if enacted, breach the provisions of the Treaty of Union and that reasons for that decision would be given later. The following are the reasons which I would give for reporting to the House in these terms.

The House of Lords Bill was brought from the House of Commons on 17 March 1999. Clause 1 of the Bill provides that no-one shall be a member of the House of Lords by virtue of a hereditary peerage. Clause 2 of the Bill, as amended on report (commonly referred to as ‘the Weatherill amendment’), makes provision for no more than 90 people together with the holder of the office of Earl Marshall and the person performing the office of Lord Great Chamberlain to be excepted from cl 1 by or in accordance with standing Orders of the House. It is to be noted that the Bill does not discriminate, as it treats all hereditary peers equally. The hereditary peers to whom these clauses apply include the peers of Scotland, whose peerages were created before the Union of 1707, as well as all other hereditary peers. And the peers of Scotland are eligible, along with all other hereditary peers, to be excepted from cl 1 under cl 2. But the Bill, as amended on report, does not guarantee that any of the peers of Scotland would fall within that exception. Nor does the Bill guarantee the right of any other person to membership of the House by virtue of having a connection with Scotland. Clause 7 of the Bill provides that cl 1 and 2, among other clauses, are to come into force at the end of the session of Parliament in which the Bill is passed.

The primary issue which the question raises is whether the Bill would, if enacted in these terms, breach art XXII of the Acts of Union of 1706 and 1707 because it would remove the right of all the peers of Scotland to sit in the House after the end of the session in which the Bill is enacted without guaranteeing the right of any of the peers of Scotland or of any other person having a connection with Scotland to membership of the House.

A secondary issue which has been raised is one of competency. In its written case the Government submits that, as the Bill has not yet been enacted, the Committee should consider whether it is appropriate for it to give an opinion upon the effect of the Bill. This is because it has never been the practice of the Committee to advise on the effect of a Bill that is still in the process of passing through Parliament. The Advocate-General made it clear that she was content to deal with the primary issue on its merits, while reserving her position on the point of competency raised in the written case. For my part, I would not wish to do anything that might encourage a departure from the practice by which this Committee is not asked to advise on the effect of a Bill while it is still under consideration by Parliament. But I think that the circumstances of this case are so unusual that it was appropriate for the House to seek the advice of the Committee on Lord Gray's question. The House of Lords Bill will have a profound effect upon the future membership of this House of not just one but of all the peers of Scotland when it comes into force at the end of this session. Furthermore it seems to me that it is a matter of legitimate concern to the House, in view of the constitutional significance of the Bill, to know whether the measure which it is being asked to pass is in breach of the Union Agreement of 1707. This makes it highly desirable that the question, which raises a serious and important issue that cannot responsibly be described as frivolous, should be answered at this stage.

The Union Agreement of 1707 has been described as only a stage, although certainly an important one, in the long story of Scotland's absorption into a wider Britain, which created an Anglo-Scottish common market that was the biggest customs-free zone in Europe and gave Scotland access to one of the largest empires in the world: T C Smout, A History of the Scottish People 1560–1830 (Collins, 1969), p 215. Following the so-called Union of the Crowns in 1603 Scotland and England had remained separate states in international law. When James VI of Scotland acceded to the throne as James I of England a personal union of the crowns took place. But this was a temporary association rather than a permanent union, as the laws of each kingdom remained unaltered and the succession to the crown of each kingdom continued to depend upon the law of each kingdom: see Lord Murray's article, ‘The Anglo-Scottish Union’, 1961 SLT (News) 161. A century later, following the accession to the thrones of both Scotland and England of Queen Anne, England expressed the wish to enter into a full union with Scotland. It appears that the primary motive for this was to avoid dangerous disputes over the succession to the throne when Queen Anne died: T C Smout, op cit, p 216. A majority in Scotland would probably have preferred a federal union, but the English wish was for an incorporating Union of Parliaments. Faced with a choice between separation and incorporation, the Scottish Parliament decided in favour of a mutual incorporation of both England and Scotland into a new state to be known as Great Britain.

The process of negotiating a parliamentary union between the two states was delegated to 31 Commissioners nominated by the Parliaments of each country. They were expressly forbidden to conclude a treaty themselves. Their task was to negotiate provisional articles for a treaty of union for submission to the Queen and to the two Parliaments. On 22 July 1706 they signed an agreed draft in which the provisional articles for the union were set out. On 23 July 1706 the draft was presented to the Queen, who in her capacities as Queen of Scotland and Queen of England recommended them for approval by the two Parliaments. The articles were, with minor alterations, approved by the Parliament of Scotland and ratified by an Act of 16 January 1707: the Act ratifying and approving the Treaty of Union of the two Kingdoms of Scotland and England 1707, APS, xi, 406, c 7. They were approved without further alteration by the Parliament of England on 6 March in the same year: the Union with Scotland Act 1706 (6 Anne c 11). The fact that the English Act bears a different date from that of the Scottish Act may be confusing at first sight. But it will be recalled that England, unlike Scotland and the rest of Europe, did not dispense with the Julian Calendar until 1752. So, while the New Year 1707 began on 1 January in Scotland, it did not begin in England until 25 March. The Union took effect on 1 May 1707, upon which date ‘and forever after’, in terms of art I of the Union Agreement, the two Kingdoms of Scotland and England were united into one Kingdom by the name of Great Britain.

The description of the Union Agreement as a ‘Treaty’ of Union has its origin in the enactments of the two Parliaments which nominated and appointed the Commissioners. The word ‘Treaty’ appears in several places in the agreed articles. For example, it is to be found in art V, which provided that all ships belonging to Her Majesty's subjects in Scotland ‘at the time of ratifying the Treaty of Union of the two Kingdoms’ in the Parliament of Scotland were to be British ships. It appears in the long title of the Act of the Scottish Parliament of 16 January 1707 and in the preamble to the English Act of 6 March 1707. The phrase ‘Treaty of Union’ is still in common use. For example, in Walker Trustees v Lord Advocate, Lord Atkinson used the expression ‘the Treaty and Act of Union’ at p 17, which he abbreviated to the phrase ‘the Treaty of Union’ at p 18. And, much more recently, Brooke LJ referred to ‘the Treaty of Union’ in the course of his judgment in R v Manchester Stipendiary, ex parte Granada Ltd at p 468A–B. In the Stair Memorial Encyclopaedia of the Laws of Scotland the Union Agreement has been listed as the ‘Treaty of Union between Scotland and England 1707’ in its Table of Treaties and Conventions. There is therefore ample precedent for Lord Gray's use of the phrase in the question which he invited the House to refer to this Committee.

Lord Gray's argument that the Bill would, if enacted, breach the provisions of the Treaty of Union is based upon the following five propositions. First, the Parliament of Scotland was entitled to impose conditions when in 1707 it transferred the power to legislate to the new Parliament of Great Britain. Secondly, the effect of the conditions which were imposed under the Union Agreement was to restrict the legislative power of that Parliament and of its successor, the United Kingdom Parliament. Thirdly, one of the conditions which was imposed was the right provided by art XXII for Scotland to be represented in the House of Lords and the House of Commons. Fourthly, that right expresses a principle of representative government that has the same force today as it had in 1707. And fifthly, as the Bill, as amended on report, would extinguish the right of Scotland to representation in the House of Lords in terms of art XXII, it would be a breach of a fundamental condition of the Union for it to be enacted in these terms.

Doubts have been expressed as to whether the Union Agreement ever had the status of a treaty in the sense in which that expression is used in international law and, if so, whether it can be said to have retained that status once the union took effect. Professor Sir Thomas Smith, QC has been perhaps the leading contributor to this debate, although he himself was the first to acknowledge his debt to one of the most distinguished constitutional lawyers of his generation, Professor J D B Mitchell of the University of Edinburgh: see the important paper which Professor Smith wrote on this subject, ‘The Union as Fundamental Law’ (1957) Public Law 99. In that paper he expressed the view that, although the articles of Union agreed between the Commissioners could not be so regarded, the exchanged Acts of the two Parliaments did constitute a treaty jure gentium between Scotland and England. But, as the law of nations in international law is concerned only with states, and the states or kingdoms of Scotland and England ceased to exist on 1 May 1707, the Treaty became an executed, or spent, treaty on that date as by the merger the obligants under the treaty had ceased to exist. He referred in support of this view to Sir Hersch Lauterpacht's observation in Oppenheim's Peace, (8th ed), pp 155–156: ‘A state ceases to be an international person when it ceases to exist…By voluntarily merging into another state, a state loses all its independence and becomes a mere part of another.’

Lord Murray has suggested that, upon closer analysis, the mutual incorporation of Scotland and England into Great Britain is not legally complete: ‘The Anglo-Scottish Union’. He refers to the recognition in art XVIII that separate systems of public law would continue to exist after the union except as altered by the new Parliament—a process which clearly remains far from complete today and, following the devolution arrangements, seems unlikely ever to be completed—and to the preservation of the Scottish juridical system by art XIX. But there is little support among the modern commentators for the view that the Union Agreement continues to have effect as a treaty in international law, and counsel for Lord Gray did not seek to develop an argument along these lines. As Professor Mitchell has pointed out, for the purposes of law it is the Acts which must be looked at: Constitutional Law (2nd ed, 1968), p 92. Counsel's argument was based on the alternative proposition that, although the treaty was spent when Scotland and England ceased to exist as separate states upon their merger into the new state of Great Britain, the Union Agreement continues to have effect as fundamental law in that new state with the result that, in regard to certain provisions which were entrenched by that Agreement, the United Kingdom Parliament does not enjoy unlimited sovereignty.

In his Short Commentary on the Law of Scotland (W Green & Son, 1962), p 55 Professor Smith proposed the following analysis of the documents by which the Union Agreement was constituted which encapsulates counsel's argument: ‘First, they constituted a treaty in international law between two sovereign states—the treaty being concluded not by the Parliaments, which did not exercise the prerogative treaty-making powers, but by Anne, Queen of Scotland, with Anne, Queen of England. This treaty, however, was executed on May 1, 1707, and can no longer be invoked quatreaty. Secondly, the respective Acts of the pre-Union Parliaments operated as ordinary legislation binding the subjects within the jurisdictions for which these Parliaments could competently legislate. Thirdly, the Union Agreement took effect as a skeletal, but nonetheless fundamental, written constitution for the new Kingdom of Great Britain when it came into being.’

The third proposition in this analysis is controversial. It can be supported by reference to the Institutional writers, to various judicial dicta and to other academic commentators. For the most part they take their stand on the high ground which is provided by arts XVIII and XIX relating to the preservation of the laws of Scotland concerning private right and the Court of Session and by the Act for Securing the Protestant Religion and Presbyterian Government in Scotland 1707: APS, xi, 402, c 6: see Bankton, Institute, IV, 1, 16–19; Erskine, Institutes, I, 1, 4; Memorial by the Senators of the College of Justice to the House of Lords of 1807 concerning art XIX of the Articles of Union, quoted by Professor J D B Mitchell, Constitutional Law (2nd ed, 1968), p 73; Minister of Prestonkirk v Heritors of Prestonkirk, 3 February 1808, reported in Connell, Tithes, vol II, pp 112–123 and vol III, appendix no CXVIII, per Lord Justice-Clerk Hope at pp 310, 319–320 and Lord President Blair at p 376. In MacCormick v Lord Advocate, Lord Advocate Clyde, who was later to become Lord President Clyde, expressly acknowledged on behalf of the Crown in the course of the argument that some provisions of the Treaty of Union were expressly made fundamental and unalterable and that Parliament could not legally repeal them, and Lord President Cooper followed the same line in his opinion at pp 411–412.

But Colin R Munro has pointed out that the argument that the Union legislation enjoys a special status, so that the United Kingdom Parliament is unable to alter some of its more important terms, is difficult to sustain in the face of the evidence as to what Parliament has done without objection and in the absence of any positive indication, when objection has been taken, that the Scottish courts would be willing to regard such issues as justiciable: ‘The Union of 1707 and the British Constitution’, Hume Papers on Public Policy, vol 2, no 2 (1994), p 89; see also Gibson v Lord Advocate; Sillars v Smith; Pringle, Petitioner; Murray v Rogers and Fraser v MacCorquodale. The fact is that, as the last three cases which concerned the legality of the legislation that introduced the community charge or ‘poll tax’ in Scotland one year in advance of its introduction in England amply demonstrate, the court has always been able to find another route for the disposal of the argument, making it unnecessary to resolve the question whether there was a breach of the Union Agreement. Professor A W Bradley and Professor K D Ewing, Constitutional and Administrative Law (12th ed, 1998), p 80, also mention the theoretical and historical difficulties which are inherent in the argument that the Union Agreement has the character of fundamental law. But they acknowledge at pp 82–83 that the character of the Anglo-Scottish Union does not make the idea of a constitutional jurisdiction vested in the Court of Session with appeal to the House of Lords inherently absurd, and they conclude that it cannot be demonstrated from existing precedents that under no circumstances could the basic rule of legislative supremacy be qualified by judicial decision.

I do not think that this issue is one which the Committee needs to resolve. The matter is ultimately one for the courts to decide. It is sufficient for present purposes to say that, leaving aside the question whether or not it is right to regard the treaty as having been executed when the Union Agreement took effect on 1 May 1707 and the two states which had entered into the treaty went out of existence, the argument that the legislative powers of the new Parliament of Great Britain were subject to the restrictions expressed in the Union Agreement by which it was constituted cannot be dismissed as entirely fanciful. That is the reasoning which lies behind the question proposed by Lord Gray, because he maintains that the Parliament of Scotland did not intend the Parliament of Great Britain to be free to exclude the representation in the House of Lords which was granted by art XXII. Thus the essential and underlying question which is before your Lordships is whether the Bill as amended on report would, if enacted, breach the provisions of art XXII of the Acts of Union of 1706 and 1707.

One of the leading provisions of the Union Agreement is to be found in art III which provided that the United Kingdom of Great Britain was to be ‘represented by one and the same Parliament to be stiled the Parliament of Great Britain’. Article XXII is closely linked to it, as it made provision for those who were to sit in the House of Lords and in the House of Commons on the part of Scotland, for the meeting of the first Parliament of Great Britain, for the duration of that Parliament and for the Oaths which were to be taken by every member of each House. It is not necessary for present purposes to quote the whole of the article. The parts of it which are relevant to the question which the Committee has to decide appear at the beginning in the first few paragraphs. They are in these terms: ‘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, and Forty five the number of Representatives of Scotland in the House of Commons of the Parliament of Great Britain; 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, Directed to the Privy Council of Scotland, Commanding them to Cause Sixteen Peers, who are to sit in the House of Lords to be Summoned to Parliament and forty five Members of the House of Commons of the Parliament of Great Britain according to the Agreement in this Treaty....

And that if Her Majesty, on or before the first day of May next, on which day the Union is to take place shall Declare under the Great Seal of England, That it is expedient, that the Lords of Parliament of England, and Commons of the present Parliament of England should be the Members of the respective Houses of the first Parliament of Great Britain for and on the part of England, then the said Lords of Parliament of England, and Commons of the present Parliament of England, shall be the members of the respective Houses of the first Parliament of Great Britain, for and on the part of England; And Her Majesty may by Her Royal Proclamation under the Great Seal of Great Britain, appoint the said first Parliament of Great Britain to Meet at such time and place as Her Majesty shall think fit; which time shall not less than fifty days after the date of such Proclamation; And the time and place of the Meeting of such Parliament being so appointed, a Writ shall be immediately issued under the Great Seal of Great Britain, directed to the Privy Council of Scotland, for the summoning of the Sixteen Peers, and for Electing Forty five Members, by whom Scotland is to be Represented in the Parliament of Great Britain…’

The following points fall to be noticed about these paragraphs of the article. The first is that words of entrenchment, such as the phrase ‘do after the Union and notwithstanding thereof remain in all time coming’ which is to be found in art XIX regarding the Court of Session, are absent from art XXII. This then is not one of those articles which were expressly made fundamental and unalterable. The first paragraph, which identifies the number of peers and the number of members of the House of Commons who are to sit on the part of Scotland, reflects the fact that there was plainly a need for a decision to be taken about numbers. At the time of the union there were 154 peers of Scotland, whose population was one fifth of that of England, while there were only 168 peers of England. But it does not address the question whether those numbers were to be fixed in all time coming or were to be subject to alteration in the future and, if so, how that alteration was to be made. The second paragraph, on the other hand, expressly contemplates that the new Parliament of Great Britain would make further provision as to the summoning of the peers who were to sit in the House of Lords and the members elected to sit in the House of Commons.

Taken as a whole, the purpose of the article appears to have been this: first, to settle the number of peers of Scotland who were to sit with all the Lords of Parliament of England in the House of Lords; secondly, to settle the number of members who were to sit on the part of Scotland with the Commons of the existing Parliament of England in the House of Commons; and, thirdly, to make the necessary arrangements for the first meeting of the new Parliament of Great Britain.

It seems unlikely that it was the intention of the Commissioners that the numbers mentioned in the first paragraph were to be treated as fixed in all time coming. Article XXIII, which deals with the privileges which the peers were to have in the Parliament, refers not only to the 16 peers of Scotland and the peers of England but also to peers of Great Britain after the Union. So it is clear that it was envisaged from the outset that the composition of the House of Lords would change over time as new peers of Great Britain were created. Moreover it has never been suggested by any of the academic writers on this subject that the provisions of art XXII regarding the right of the 16 representative peers of Scotland to sit and vote in the House of Lords has the character of fundamental law. In his article on Fundamental Law in the Stair Memorial Encyclopaedia, vol 5, Constitutional Law (1987), para 347 Professor Smith said that it seemed probable that the most likely issues to be tested in the context of fundamental provisions of the Union Agreement were in relation to the church, the courts and laws which concern private right. The most that can be said, as Professor J D B Mitchell, Constitutional Law (2nd ed, 1968), p 96 has explained, is that art XXII gave effect to a basic principle of the Union that Scotland was to be assured of adequate representation in the Parliament of Great Britain.

But this principle was not expressed anywhere in the Union Agreement. It lacks any words of enactment. I would find it difficult to regard it as having the character of fundamental law in these circumstances. The constraints imposed by this principle with regard to the alteration of the arrangements set out in the article are best seen as a matter for political judgment, to be resolved from time to time according to the facts and circumstances.

The second point which falls to be noticed about these paragraphs is that the wording of the article is unclear as to whether the peers of Scotland were to be elected to represent Scotland on the one hand or the peerage of Scotland on the other. The minutes of the Parliament of Scotland for 7 January 1707 indicate that when art XXII was being debated its purpose was seen as being to regulate the calling of ‘the Representatives from Scotland’ to the Parliament of Great Britain and the way and manner of choosing ‘the Representatives of Scotland’ who were to sit and vote in that Parliament. The preamble to the Scottish Representative Peers Act 1707, 6 Anne c 23, which was passed by the Parliament of Great Britain as envisaged by art XXII to make further provision for the election and summoning of the 16 peers, refers to ‘the Sixteen Peers and Forty five Members to represent Scotland in the Parliament of Great Britain’. On the other hand, the Representative Peers (Scotland) Acts 1847 and 1851 refer to the election of the 16 peers as being ‘to represent the Peerage of Scotland’. As for the wording of art XXII itself, in Earl of Antrim's Petition at p 715 Lord Reid said that he did not find any very clear indication in the phraseology of the Acts of Union that the 16 Scottish representative peers were to represent Scotland rather than the peerage of Scotland. The opening paragraph of art XXII describes the 16 as the number ‘of the Peers of Scotland’ who were to sit and vote in the House of Lords. It uses the words ‘Representatives of Scotland’ only in regard to the 45 who were to sit and vote in the House of Commons. The question whether the reference to those by whom Scotland was to be represented in the last paragraph of the passage quoted above applies to the 16 as well as to the 45 can be answered either way, depending on the view one takes of the punctuation of that paragraph.

On the whole it seems to me that the argument that the effect of the Union Agreement was that the peers of Scotland were to represent Scotland in the Parliament of Great Britain is less than convincing. I shall return to this point at a later stage in this opinion.

There is no doubt that it has been assumed ever since 1707 that the Parliament of Great Britain, and subsequently that of the United Kingdom, had power to alter or amend art XXII. First, there were the Union with Scotland (Amendment) Act 1707 which abolished the Scottish Privy Council, the Scottish Representative Peers Act 1707 and the Representative Peers (Scotland) Acts of 1847 and 1851. Then there was an extensive body of legislation commencing with the Representation of the People (Scotland) Act 1832 which increased the number of Scottish Members of Parliament from 45 to 53 and set out the constituencies. As a result of subsequent legislation increasing their numbers and re-organising the constituencies the number of Scottish Members of Parliament has been increased to 72. Then there were the Promissory Oaths Acts of 1868 and 1871. And lastly, and for present purposes the most important, there were the Peerage Act 1963, the Statute Law Revision (Scotland) Act 1964 and the Statute Law Repeals Act 1993.

Section 4 of the Peerage Act 1963 provides: ‘The holder of a peerage of Scotland shall have the same right to receive writs of summons to attend the House of Lords, and to sit and vote in that House as the holder of a peerage in the peerage of the United Kingdom; and the enactments relating to the electing of Scottish representative peers shall cease to have effect.’ Schedule 2 to the 1963 Act includes among the enactments which were repealed by that Act the Union with Scotland Act 1706, 6 Anne c 11, and the Act of the Parliament of Scotland ratifying and approving the Treaty of Union of the two Kingdoms of Scotland and England 1707, c 7. The extent of the repeal in each case is given in the schedule as ‘Article XXII of the Treaty of Union so far as that Article refers to peers of Scotland; and Article XXIII of that Treaty except the words from "all peers of Scotland" to "enjoy the same".’ The Statute Law Revision (Scotland) Act 1964 took this process one step further. The whole of art XXII was repealed by that Act, which listed this article of the Act of 1707 as one of the provisions of the Acts of the Parliaments of Scotland which, in terms of sec 1 of the Act, ‘are obsolete, spent or unnecessary or have been superseded by other enactments’. The Statute Law Repeals Act 1993 contains a corresponding repeal of art XXII in the Union with Scotland Act 1706.

The conclusion which must be drawn from these various enactments, as senior counsel for the Government pointed out, is that the right of the peers of Scotland to sit and vote in the House now depends entirely upon sec 4 of the Peerage Act 1963, and that art XXII of each of the two Acts which constituted the Union Agreement has been repealed. Counsel for Lord Gray submitted that it was ultra vires of Parliament to repeal art XXII. But I do not think that it is open to us in this Committee to take that view, for the following reasons. First, there is the doctrine of sovereignty of Parliament. Whatever view a court might form on the matter, as to which I express no opinion, I do not think that it is open to this Committee to question the extent and application of the doctrine of sovereignty. Secondly, for the reasons already given, I consider that art XXII lacks the character of fundamental law, which is an essential prerequisite for the argument that Parliament went outwith its powers when it enacted these repeals.

There are however a number of other substantial reasons for rejecting the argument that the House of Lords Bill would breach the provisions of art XXII of the Union Agreement. They all concern, in one way or another, the issue of representation which in the end of the day lies at the heart of Lord Gray's argument.

It is first necessary to consider the meaning of the word ‘representation’ in this context. In the context of the work of the legislature it is the representation of the people of Scotland as a whole that is in issue—of their rights, interests and aspirations. It is not acceptable, when one talks of the principle that Scotland should be represented in the new Parliament, to discriminate between one class or group of people and another. So it will not be enough, if Lord Gray's argument is to succeed, for it to be shown that the 16 representative peers of Scotland were to sit and vote in the House of Lords on behalf of the peerage of Scotland. It must be shown that the function of the 16 representative peers was to represent the people of Scotland as a whole in this House.

Prior to the Union of 1707 the Scottish Parliament, which had only one chamber, consisted of three estates: the bishops, the nobility and the burgesses: Stair Memorial Encyclopaedia, vol 16 (1995), sub nom ‘Peerages’, para 1306. After the episcopacy was abolished in 1689, the titled nobility or peerage constituted an estate by themselves, distinct from that which consisted of the commissioners of the shires who represented the lesser baronage. The structure and traditions of that Parliament were such that it would be impossible to assert that the peerage sat in that assembly as representatives of the people of Scotland as a whole or that they were there on behalf of any interest other than their own.

The entry into an incorporating union with England in which there was to be a new Parliament of two Houses according to the pattern of the English Parliament meant that a new arrangement had to be devised. It was never in doubt that, as members of the nobility, the peers of Scotland would sit not in the House of Commons but in the House of Lords, and that they would sit there together with the peers of England and any peers of Great Britain who might, as art XXIII envisaged, be created after the Union. In that sense the 16 representative peers were to sit ‘on the part of Scotland’ in your Lordships' House. They were to constitute the Scottish element in the House of Lords when the new Parliament of Great Britain came into existence. But it is less obvious that the 16 peers of Scotland were to represent the people of Scotland as a whole when they sat and voted in the House and, if so, whether this was to be a permanent arrangement to ensure Scotland's representation there.

Several factors, when taken together, indicate that the better view is that the function of the Scottish representative peers in the House of Lords was to represent the peerage of Scotland in the new Parliament. Two features of the arrangement which were present from the outset seem to me to favour that view. The first is the absence of any residence or any other qualification to ensure that each of the representative peers had a continuing connection with Scotland, in addition to their membership of the peerage of Scotland, so as to equip them for the task of representing the people of Scotland. One of the most obvious consequences of the Union was the opening up of the border in order to establish a common market between the two countries. It must have been anticipated that some at least of the Scottish peers would be likely to move south and establish themselves in England and that, in doing so, they might relinquish their links with Scotland. Yet the process which was set up for the election of the 16 representative peers made no provision to ensure that only those who remained in Scotland or who retained estates in Scotland would be eligible.

The second is that it was understood from the outset that all new peerages created after the Union would be as peers of Great Britain. This was bound to have the result that the relative importance of the peers of Scotland as against that of all other peers would diminish over time. Yet no provision was made in the Union Agreement to enable the balance to be restored in favour of Scotland as time went on by increasing the number of Scottish representative peers. The absence of any such arrangement suggests that the function of the 16 Scottish representative peers was to represent the peerage of Scotland in the House of Lords in due proportion to the peerage of England in this House, and that it was assumed for the future that, as all new peerages would be of Great Britain and thus drawn from both countries, no further adjustment would be necessary.

So far as the people of Scotland and their representation in the new Parliament of Great Britain were concerned, therefore, this is to be found in the arrangements that representatives of Scotland were to sit in the House of Commons. The opening words of art XXII support this approach, as those who were to sit in the House of Lords are described there as ‘the Peers of Scotland’. The expression ‘the Representatives of Scotland’ is used to describe those who were to sit in the other place. Furthermore, as it is part of Lord Gray's argument that the principle of representation has the same force today as it had in 1707, it is proper to take into account the changes which have affected our parliamentary system since that date. The important reforms which were introduced in 1832 and the introduction during this century of the principle of universal suffrage have served greatly to reinforce the argument that the principle of representation is satisfied by the election of Members of the House of Commons by voters in the Scottish constituencies. It is true that no condition of residence must be satisfied to entitle a member of the other place to represent a Scottish constituency. But the connection between each member and the constituency by which he or she has been elected is, for sound practical reasons, a substantial and continuing one. Furthermore the adjustments as to the relative functions of the two Houses following the Parliament Acts have strengthened still further the position of the House of Commons as the representative House of Parliament based on its universal democratic mandate. In the light of these developments the idea that the peers of Scotland still have a mandate under art XXII to sit and vote in the House of Lords on behalf of the people of Scotland seems now to be quite out of touch with reality.

It should also be noted that in practice many of those hereditary peers whose peerages were created after 1707, and those who have been made life peers under the Appellate Jurisdiction Act 1876 and the Life Peerages Act 1958, regard themselves as Scottish peers because they live in Scotland or have other important and continuing connections with that country. Therein lies the significance of the fact that the Bill, as amended on report, does not discriminate against the peers of Scotland or Scottish peers generally but applies equally to all hereditary peers. Those hereditary peers having connections with Scotland, including peers of Scotland, who are excepted from cl 1 under cl 2 of the Bill together with the Scottish life peers will continue to take an interest in Scottish affairs and thus, in a practical way, to represent the interests of Scotland in your Lordships' House. So there is no reason to think that the ending of the right of the peers of Scotland to sit and vote in the House will deprive Scotland of a continuing and effective representation in this part of the legislature.

Nothing that I have said in the preceding paragraphs is intended to cast doubt on the valuable contribution which the peers of Scotland have made to the work of the House on matters affecting Scotland over so many years. That however is not the issue before this Committee. The answer to the question which is before us does not depend upon the discussion of issues affecting Scotland of the removal from the peers of Scotland of their right to sit and vote in the House. Its answer must be found in the questions of law which I have discussed, and for the reasons which I have given I consider that the question before the Committee must be answered in the negative.