Lord Gray's Motion

The Committee was asked whether the House of Lords Bill (as amended on report) would, if enacted, breach Article XXII of the Acts of Union 1706/1707. The Committee answered in the negative.

Legal principles and grounds:

• Parliamentary sovereignty and subsequent statute law (notably section 4 and Schedule 2 of the Peerage Act 1963 and later statute law revision and repeal Acts) have removed or displaced the original statutory effect of Article XXII so that the right of Scottish peers to sit now depends on later Acts.
• Article XXII does not contain express entrenched language making its provisions unalterable; its terms appear directed to the composition of the first Parliament of Great Britain and contemplated future Parliamentary adjustment.
• Even if an underlying principle of adequate representation of Scotland existed, adequate representation is a matter of fact and political judgement and is now satisfied by other means including life peers and Scottish representation in the House of Commons; the Bill is non‑discriminatory between classes of hereditary peers.

The House referred the question whether the House of Lords Bill (as amended on report) would, if enacted, breach the Treaty (the Acts) of Union between England and Scotland to the Committee for Privileges. The Bill would remove membership of the House of Lords by virtue of hereditary peerage (clause 1) subject to limited exceptions (clause 2) and take effect at the end of the session in which it is passed (clause 7).

Background and parties:

• The motion was moved by Lord Gray; the Government and Lord Gray each made submissions to the Committee.
• The Committee considered historical and constitutional materials concerning the Acts of Union of 1706 and 1707, and subsequent statute law affecting the position of Scottish peers.

Nature of the reference and relief sought:

The reference was advisory: the House sought the Committee's opinion whether the Bill, if enacted, would breach the Treaty/Acts of Union. No private remedy was sought; the question was constitutional and prospective.

Issues framed by the Committee:

1. Whether Article XXII of the Acts of Union remains an entrenched provision of fundamental law that Parliament cannot alter so as to remove the representation of Scottish peers in the House of Lords.
2. Whether the Bill, as amended on report, would, if enacted, breach Article XXII or any implied constitutional guarantee of Scottish representation.
3. Whether it was appropriate for the Committee to give an opinion on the effect of a Bill still before Parliament (secondary issue of competency).

Court’s reasoning in brief:

• The Committee treated the question as appropriate for determination in the exceptional circumstances. It observed that Article XXII was repealed so far as it related to Scottish peers by later statute, in particular the Peerage Act 1963 (section 4 and Schedule 2) and subsequent statute law revision/repeal Acts, so as a matter of statutory construction the Bill could not breach the statutory provisions of Article XXII.
• On the deeper constitutional question, the Committee concluded Article XXII did not contain express words of entrenchment and was principally concerned with composition of the first Parliament; it was not shown to be an immutable constitutional guarantee preventing alteration by later Parliament. Even if an underlying principle of adequate representation existed, that principle was fact‑sensitive and had not been shown to be violated by the Bill; the Bill treats hereditary peers equally and, in practice, Scottish interests continue to be represented by life peers and other members.
• Accordingly the Committee unanimously answered the question in the negative: the Bill, if enacted, would not breach the Treaty of Union.

The Committee unanimously answered the question in the negative: the House of Lords Bill (as amended on report), if enacted, would not breach Article XXII of the Acts of Union. Rationale: Article XXII was repealed or displaced in effect by later statute (notably the Peerage Act 1963 and statute law revision/repeal Acts); Article XXII lacks express entrenchment and was concerned with the composition of the first Parliament; any general principle of 'adequate representation' is fact‑based and not shown to be breached by the non‑discriminatory provisions of the Bill and by the present realities of Scottish representation.

Reference by the House of Lords to the Committee for Privileges. The Committee for Privileges considered the matter on 20 October 1999 and unanimously reported its opinion; formal opinions delivered 12 November 1999. Neutral citation for this Committee opinion: [1999] UKHL 53 (reported as 2000 SC(HL) 46 and cited in other law reports).