Lord Gray’s Motion

Article XXII of the Union settlement did not entrench a permanent number or guaranteed class of Scottish members in the House of Lords. Parliament had already repealed its provisions concerning Scottish peers, whose right to sit thereafter depended on the Peerage Act 1963.

Legislation removing membership by virtue of hereditary peerage would not breach the Union settlement where it treated hereditary peers equally and did not deprive Scotland of effective representation. Any arguable implication of adequate Scottish representation concerns representation in fact. It does not require an express statutory guarantee or representation through hereditary peers.

The House referred to its Committee for Privileges the question whether the House of Lords Bill, if enacted as amended, would breach the Treaty of Union between England and Scotland. Clause 1 would end membership of the House by virtue of hereditary peerage. Clause 2 would preserve limited exceptions, without guaranteeing a place for a Scottish peer or any other person connected with Scotland.

Lord Gray contended that article XXII of the Acts of Union entrenched Scotland’s right to representation in the House of Lords. The Government disputed that construction and initially questioned whether the Committee should advise on a Bill still before Parliament. The Committee considered whether article XXII remained legally effective, whether it was fundamental law beyond Parliament’s power to alter, and whether the Bill would offend any enduring principle of adequate Scottish representation.

1. The question was answered in the negative unanimously. The House of Lords Bill, if enacted as amended, would not breach the Treaty of Union between England and Scotland.

2. Per Lord Slynn, Lord Nicholls and Lord Hope, article XXII no longer subsisted as an operative statutory guarantee. Section 4 of the Peerage Act 1963 gave every holder of a Scottish peerage the same right to sit and vote as a holder of a United Kingdom peerage. The relevant provisions of article XXII were then repealed. The statutory right of Scottish peers consequently depended on the 1963 Act rather than article XXII.

3. Per Lord Hope, article XXII lacked the language and character of fundamental and unalterable law. It settled the numbers and arrangements required for Scotland’s participation in the first Parliament of Great Britain, while expressly contemplating further parliamentary provision. Article XXIII also envisaged that the composition of the House would change as new peerages of Great Britain were created. Lord Slynn similarly concluded that article XXII was not intended to fix a particular representation for all time.

4. Lord Hope did not decide whether other provisions of the Union settlement could limit Parliament’s legislative sovereignty. He regarded that broader contention as not entirely fanciful and ultimately a matter for the courts. Lord Slynn doubted whether even a fundamental constitutional provision was beyond Parliament’s power to alter. The Committee nevertheless agreed that article XXII itself supplied no such restriction.

5. Per Lord Hope, the better view was that the 16 representative peers represented the peerage of Scotland rather than the Scottish people as a whole. Article XXII called the elected members of the House of Commons the “Representatives of Scotland”, but used different language for the peers. Subsequent democratic reform and the respective functions of the two Houses reinforced the position of the House of Commons as the representative House.

6. Per Lord Nicholls, an implication requiring adequate Scottish representation was at most arguable and concerned representation in fact. It did not require an express guarantee of future seats or representation through hereditary peers. The Bill treated all hereditary peers equally. Scottish life peers and other peers with Scottish connections would continue to provide an effective Scottish voice. Lord Slynn and Lord Hope reached the same conclusion on the absence of discrimination and practical representation.

7. Per Lord Slynn, Lord Nicholls and Lord Hope, the exceptional reference was properly answered because it concerned the composition of the House and the rights of its existing members. It did not displace the general convention that authoritative statutory interpretation belongs to the courts.

• House of Lords Committee for Privileges: Unanimously determined that the House of Lords Bill, if enacted as amended, would not breach the Treaty of Union between England and Scotland. This was a reference by the House rather than an appeal from a lower court.