House of Lords - Privileges

Select Committee on Privileges Second Report

APPENDIX 3

Case for Her Majesty's Government

INTRODUCTION

1. On 19 January 1999 the Government introduced the House of Lords Bill in the House of Commons.

2. On 17 March 1999 the House of Lords Bill was brought to Your Lordships' House. The Bill was amended at Committee and Report Stages, and reprinted with the amendments on 1 July 1999. Hereafter, the House of Lords Bill as so amended is referred to as "the Bill".

3. The basic object of the Bill is to restrict membership of the House of Lords by virtue of a hereditary peerage (Clause 1). Under Clause 2, the Bill provides for 90 hereditary peers plus the person performing the office of Lord Great Chamberlain and the Earl Marshal ("the Weatherill peers") to be excepted from the application of Clause 1. Clause 2 was inserted by amendment at Committee Stage in the House of Lords. The operative provisions of the Bill are to come into effect at the end of the Session in which it is passed.

4. Clause 1 of the Bill, if enacted, will apply to both English and Scottish hereditary peers, removing from them all the right to sit as members of Your Lordships' House (save for peers excepted under Clause 2).

5. On 27 and 29 April, 11 and 25 May and 22 June 1999 there was debate in Your Lordship's House concerning the question whether the Bill, if enacted, would be in any way contrary to Article XXII of the Treaty of Union between England and Scotland of 1706, incorporated in the respective Acts of Union of 1706 and 1707. The position of the Government is that the Bill is not contrary to, nor in any way precluded from being enacted into valid and binding law by, the Treaty and Acts of Union.

6. On 27 July 1999, upon a motion moved by Lord Gray, Your Lordships' House passed the following motion—

"That there be referred to the Committee for Privileges the question 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."

7. The issues which arise, or may arise, upon the present reference are set out in the Statements of Issues agreed between Counsel for the Government and Counsel for Lord Gray and his supporters.

THE ROLE OF THE COMMITTEE

8. The Government opposed the reference to the Committee on the ground, among others, that such a reference was inappropriate in relation to a Bill still in the course of its passage through Parliament, which has not yet been enacted. it is respectfully submitted that the Committee should first consider whether it is in fact appropriate for the Committee to give an opinion upon the effect of the Bill.

9. Standing Orders 74-78 relate to references to the Committee. The Companion to the Standing Orders states, "the House refers to this Committee questions regarding its privileges and claims of peerage and of precedence . . .".

10. It has never been the practice of the Committee to advise on the effect of a Bill still in the process of passing through Parliament and not yet law:

(1) In peerage petition cases, the Committee applies existing law to the facts arising under a particular claim;

(2) In other cases referred to it for an opinion, also, the Committee has always considered the law in existence at the time—indeed, in such cases it is inherent in the notion that the Committee is advising on the law (and doing so as if it were a Court) that it is extant law which is ruled upon, and not proposals for legislation. A relatively recent example of such an opinion was the Report by the Committee for Privileges on Parliamentary Privilege and the Mental Health Legislation (18 June 1984), concerning whether the powers of detention of persons suffering from mental disorder under the Mental Health Act 1983 overrode the privilege of peers against arrest. That was, clearly, an opinion upon the effect of an extant law, contained in a statute which had been enacted.

11. Thus, what the Committee is invited to do is wholly without precedent—and that is for good reasons. If it is ever appropriate for the Committee to give an opinion to the House on a Bill (as to which the Government reserves its position), it is respectfully submitted that it could only be in wholly exceptional circumstances that the Committee should be prepared to move to advising on the putative legal effect of a Bill which has not yet been enacted. This is because:

(1) The Bill is not yet law. The Bill will only pass into law when enacted by the Queen in Parliament. The proper role of the Committee is to advise upon matters of law and procedure. Generally, it is respectfully submitted that it is not appropriate for the Committee to presume that the Queen in Parliament will enact any statute in any particular form before a Bill has received the Royal Assent and passed into law;

(2) The proper place for debating the proposed effect of any Bill is the floor of the House itself or during the Committee stage, that is to say during the normal processes for the adoption of legislation;

Pepper v Hart [1993] AC 593;

Hansard,

(5) It is possible that the true construction of a statute may depend upon whether it is being construed and applied to facts arising before 2 October 2000 (the date on which it has been announced that the substantive parts of the Human Rights Act 1998 are to be brought into force, including the new interpretative obligation by reference to the European Convention on Human Rights—"ECHR"—contained in section 3 of that Act), or construed and applied to facts arising after that date. (It should be noted that, in relation to the other reference to the Committee, upon the motion of Lord Mayhew, Lord Mayhew does refer to the ECHR in his argument to the Committee). In these circumstances, consideration of the issue as an abstract question of law is not appropriate.

12. Further, Your Lordships' House sitting in its judicial capacity will generally not entertain questions upon academic points of law, save in exceptional circumstances: R v Secretary of State for the Home Department, ex p Salem [1999] 2 WLR 483 (HL). It is submitted that Your Lordship's Committee should be still more careful not to entertain abstract arguments on a Bill not yet passed into law, by reason of the particular factors in relation to a Bill not yet passed into law identified at paragraph 11(1) to (5) above.

13. It is submitted that the present reference is not an exceptional case, and that it would not be appropriate for the Committee to arrive at any determination upon the question referred.

14. If, contrary to that submission, the Committee is of opinion that it should arrive at a determination upon the question referred, then it is submitted that the Committee's proper function is to determine the matter according to law, upon legal argument. It is no part of the function of a court, and it is respectfully submitted no part of the function of the Committee, to rule upon the merits or wisdom of any legislation or proposed legislation: see eg Madzimbamuto v Lardner-Burke [1969] AC 645 (PC).

THE STATUTORY CONTEXT

15. In 1706, England and Scotland were two distinct states, ruled by Anne as Queen in right of England and by Anne as Queen in right of Scotland respectively, and each with their own distinct Parliaments.

16. In that year, Commissioners from each of the Parliaments negotiated Articles of Union, for a proposed union of England and Scotland into one state of Great Britain. The Articles of Union were agreed between the Commissioners on 22 July 1706, and presented to Queen Anne on 23 July 1706.

17. The Scottish Parliament approved the Articles, with some amendment, and they were then ratified by 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 Scottish Act of Union"). The Scottish Act provided "That the Approbation and Ratification of the foresaids Articles and Act shall be nowayes binding on this Kingdom until the said Articles and Act be Ratified Approven and Confirmed by Her Majesty with and by the Authority of the Parliament of England. . ."

18. The English Parliament legislated by the Union with Scotland Act 1706 (6 Anne c 11), which recited the Articles as amended and the Scottish Act and enacted by section 4 that they were ratified, approved and confirmed. The Union thereafter took effect on 1 May 1707.

19. Article I provided for the two kingdoms to be united on 1 May 1707 "and forever after", as Great Britain.

20. Article II provided that the succession to the United Kingdom of Great Britain should, in default of issue of Queen Anne, "remain and continue" to the protestant Hanoverian line; and also provided "that all Papists and persons marrying Papists shall be excluded from and forever incapable to inherit, possess or enjoy" the throne.

21. Article III provided:

That the United Kingdom of Great Britain be Represented by one and the same Parliament to be stiled the Parliament of Great Britain.

Thus Article III, which established the Parliament of Great Britain, was not (unlike Articles I and II) expressed to continue for ever.

22. Article XVIII made provision for Scottish public law in use at the time of the Union to be alterable by the Parliament of Great Britain so as to be made the same throughout the United Kingdom, but for Scottish private law to be alterable only if "for evident utility of the subjects within Scotland."

23. Article XIX provided, amongst other things, for the Parliament of Great Britain to alter or abolish the Privy Council of Scotland.

24. Article XXII is the provision with which the current reference is primarily concerned. It provided for there to be 16 representatives of the peers of Scotland and 45 Members of Parliament for Scotland in the new Parliament of Great Britain. It also provided for a procedure for summoning the 16 representative peers and 45 MPs, by way of a writ to be issued to the Privy Council of Scotland. Article XXII provided that the procedure applied only "until the Parliament of Great Britain shall make further provision".

25. The limitation of Scottish peers to 16 was to prevent what was thought would otherwise be disproportionate representation of Scotland in Your Lordships' House at that time, were all Scottish peers of the time to be granted the right to sit as members (see eg JDB Mitchell, Constitutional Law, 2nd ed, 1968, p 96). The Scottish Parliament made provision for the election of the 16 peers by statute 1707 c 8.

26. Article XXIII made provision as to the rights and privileges of the 16 representative peers of Scotland, and the rights of those other Scottish peers who did not sit as members of Your Lordships' House.

27. No provision was made as to such matters as the number of English MPs for the future, nor the procedures to be adopted by the new Parliament of Great Britain in making legislation.

SUBSEQUENT ENACTMENTS

28. Very soon after the Union, the Articles were affected by legislation of the Parliament of Great Britain. By the Union With Scotland (Amendment) Act 1707 (6 Anne c 40), the Privy Councils of England and Scotland were abolished, and one Privy Council of Great Britain established. (The relevant part of Article XIX, referring to the Privy Council for Scotland, was formally repealed by the Statute Law Revision (Scotland) Act 1964, s 1 and Schedule 1.) Further provision was made in relation to the Scottish representative peers by the Scottish Representative Peers Act 1707 (6 Anne c 78).

29. There have been many statutes of the Parliament of Great Britain (or, from the Union with Ireland in 1801, the Parliament of the United Kingdom) since the Union which have affected, amended or repealed various of the Articles of Union: see the Annex 1 to this Case, which sets out the position in detail.

30. The respective powers of the House of Commons and the House of Lords were modified in certain fundamental respects by the Parliament Act 1911. The preamble to that Act recited:

Whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation.

And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords|

31. That Act, therefore, looked forward to the abolition of the hereditary basis for membership of the House of Lords.

32. The effective weight of the votes of all hereditary peers (including the 16 Scottish representative peers) was diluted by the introduction of life peers, pursuant to the Life Peerages Act 1958.

The Peerage Act 1963 and the repeal of Article XXII

33. The Peerage Act 1963 removed the limit of 16 Scottish hereditary peers by making provision to permit all Scottish hereditary peers (and, by s 6, peeresses) to sit as members of Your Lordships' House. It also provided that the enactments relating to the election of Scottish representative peers were to cease to have effect. Section 4 of the 1963 Act states:

"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 in the peerage of the United Kingdom; and the enactments relating to the election of Scottish representative peers shall cease to have effect."

34. Further, s 7(2) of, and Schedule 2 to, the 1963 Act repealed (a) the provisions of the respective Acts of Union containing Article XXII, so far as that Article related to the peers of Scotland; (b) the provisions of the respective Acts of Union containing Article XXIII, except the words from "that all peers of Scotland" to "enjoy the same" (ie the effect was, in accordance with s 4 of the 1963 Act, to equiparate the privileges of English hereditary peers and Scottish hereditary peers); and (c) the Scottish statute 1707 c 8 regarding the election of the 16 peers and the Scottish Representative Peers Act 1707.

35. A Joint Committee of both Houses considered the proposed changes, and the terms of Article XXII. The Joint Committee recommended that the changes be made: see Report of the Joint Committee on House of Lords Reform (1962-63) HC 28, HL 32. The parliamentary debates are at Hansard, 27 June 1963, cols 1707-1712 (House of Commons) and Hansard, 11 July 1963, cols 1515-1525 (House of Lords). Certain Scottish peers sought to support an amendment of Article XXII to maintain a system of election, but increasing the number of representative peers (col 1515). The Lord Chancellor opposed the amendment, and defended cl 4 in these terms: "In the debates on the Bill, the view has been expressed from both sides that, whatever view may be taken of the hereditary principle, so long as it subsists the proposal to include the Scottish Peers and Peeresses is reasonable" (col 1520).

36. The parts of Article XXII which related to the number and selection of Scottish MPs have long since been removed, commencing with the major constitutional changes in the basis of election of MPs in 1832. A table of the relevant changes is at Annex 2 to this Case.

37. Article XXII as enacted in the Scottish Union with England Act 1707 (so far as left unrepealed by that stage) was formally repealed by the Statute Law Revision (Scotland) Act 1964, s. 1 and Schedule 1.

38. Article XXII as enacted in the English Union with Scotland Act 1706 (so far as left unrepealed by that stage) was formally repealed by the Statute Law (Repeals) Act 1993, s. 1(1) and Schedule 1.

THE ISSUE

39. The issue is whether the Bill, if enacted, would, by removing after the end of the Session of Parliament in which it is enacted the right of the peers of Scotland who now sit in Your Lordships' House, without guaranteeing the right of any peers of Scotland or of any other person having a connection with Scotland to sit in Your Lordships' House in subsequent sessions, breach Article XXII of the Acts of Union.

THE GOVERNMENT'S SUBMISSIONS

40. The Government submits that the Bill, if enacted, will not conflict with the respective Acts of Union. Further and in the alternative, if the Bill, if enacted, would conflict with the terms of the respective Acts of Union, the Government submits that the Parliament of the United Kingdom has full sovereignty and legislative competence to enact the Bill, and that the Bill as enacted would have full force and effect as valid and binding law.

41. The Government will develop below the following submissions:

(1) Article XXII was repealed in relevant part by the Parliament of the United Kingdom by the Peerage Act 1963, and cannot impinge in any way upon the exercise of Parliament's legislative power (paragraphs 42 to 47 below);

(2) Further and in any event, the Parliament of Great Britain (now the United Kingdom) would have power (if required) under the Acts of Union to enact the Bill (paragraphs 48 to 61 below);

(3) Further and in any event, the Parliament of the United Kingdom is fully sovereign and competent to enact the Bill, whether it conflicts with the Acts of Union or not (paragraphs 62 to 81 below);

(4) In the alternative to the above, any inconsistency with the Articles in the Acts of Union would not be justiciable by a court, and the Bill, if enacted, would be accepted as valid and binding law (paragraph 82 below).

(1) Article XXII has been repealed by the Peerage Act 1963

42. There is (it is respectfully submitted) simply no answer to this. The Bill cannot be inconsistent with Article XXII, because the relevant part of Article XXII was deleted from both Acts of Union by the Peerage Act 1963. Since 1963, all Scottish hereditary peers have had the right to sit in Your Lordships' House.

43. No parliamentarian and no commentator suggested in 1963 or has suggested in the subsequent 36 years that the Peerage Act 1963 did not have full legal effect.

44. Your Lordships' House has itself accepted the validity and binding effect of ss 4 and 7(2) of the 1963 Act, by admitting all Scottish hereditary peers to sit as members of Your Lordships' House on the same basis as English hereditary peers[1] and without operation of any machinery of selection (which was abolished by that Act).

45. The repeal of the relevant parts of Articles XXII and XXIII by the 1963 Act was a necessary corollary of the enactment of s 4 of the 1963 Act. The provisions of Articles XXII and XXIII, in their original form, represented a compromise between the English and Scottish Commissioners in 1706, to limit Scottish representation in Your Lordships' House to what was perceived to be a fair number, in the circumstances of the time, so as not unfairly to outweigh those representing the English interest. In 1963, the original compromise was set aside by s 4 of the 1963 Act, and a wholly new arrangement was put in its place, namely that Scottish hereditary peers should have the same right to sit as members of Your Lordships' House as English hereditary peers.

46. The Lord Chancellor at the time made it clear that the new arrangement itself was predicated on the subsistence of the hereditary principle (see paragraph 35 above).

47. By the current Bill, Parliament proposes to put in place a new constitutional arrangement. The impact of the Bill upon the Scottish hereditary peers would be the same as its impact upon the English hereditary peers.

(2) The Parliament of the United Kingdom would have power (if required) under Article XXII and the Acts of Union to enact the Bill

48. Where it was intended in the Articles of the Acts of Union to entrench provisions, against change in the future, the draftsman took care to use very clear words. The particular examples are—referring to the Scottish Act of Union—Article 1 (to unite the Kingdoms "forever"), Article II (to secure the protestant succession at all times in the future), Article XIX (continued existence of the Courts of Scotland—"the Court of Session|shall remain in all time coming within Scotland as it is now constituted by the laws of that Kingdom") and the provision for the establishment of the Church of Scotland (to be "effectually and unalterably secured", "this Act of Parliament with the Establishment therein contained shall be held and observed in all time coming as a fundamental and essential condition of any Treaty or Union to be concluded betwixt the two Kingdoms without any alteration thereof or derogation thereto in any sort for ever"). One may also refer to the qualified protection for Scottish law in relation to private right, contained in Article XVIII (only to be altered on an "evident utility" test).

49. The argument that provisions of the Acts of Union were successful in enrenching certain laws focuses on the circumstances in which clear entrenching language is used, and refers specifically to the position of the Scottish Courts, the Church of Scotland and Scottish private law: see in particular MacCormick v Lord Advocate 1953 SC 396, 411-412 per Lord President Cooper, based on a concession by the Lord Advocate; TB Smith, "The Union of 1707 as Fundamental Law" [1957] PL 99, at 113-115, esp 114.

50. By contrast, the language of Article XXII does not contain words of entrenchment. As a matter of construction of Article XXII in the context of the Acts of Union, therefore, there is an implied power of amendment by the Parliament of Great Britian of the provisions of Article XXII. Where the draftsmen intended there to be irrevocable entrenchment, they said so in terms; where they did not say so in terms, they cannot be taken to have intended there to be irrevocable entrenchment.

51. This basic argument of construction receives further powerful support from the following points.

52. First, it is submitted that there is a strong presumption in the construction of any constitutional document that there is intended to be a power of amendment, in order to preserve some reasonable relationship between the law and political reality (a factor acknoweldged by leading exponents of theories of entrenchment: see TB Smith, Scotland, the Development of its Laws and Constitution (1962), p. 60; JDB Mitchell, Constitutional Law (2nd ed., 1968), pp 71-74, esp at 74):

(1) States need to be able to preserve their own internal stability while allowing for the inter-play of changing political forces within them. Political stability and legal certainty are best promoted by allowing the possibility of amendment of a constitution, rather than political pressure having to be accomodated by a series of legal revolutions;

(2) Also, states do not operate in the world as self-contained units, hermetically sealed off from the external world. They are subject to external pressures as well as internal ones. Again, in the interests of their own self-preservation, they need to be able to develop their constitutions to be able to meet external threats and challenges effectively;

(3) These points would have been as obvious in 1707 (in the aftermath of the Civil War and the Glorious Revolution of 1689, and in the midst of war with France) as it is submitted that they are today. Indeed, the Union was itself intended to allow both England and Scotland to develop together to meet the challenges of the future more effectivley. As TB Smith observes (loc cit, pp 112-113):

Reflecting on the political upheavals of the seventeenth century, and anticipating the difficulties which would arise on Anne's death, those who framed the Union could not have considered that they were framing a constitution which would last till Doomsday. They might have regarded their labours as well rewarded if they had thought that it would last for fifty years substanatially as they had framed it.

53. This point is especially strong in the context of the Acts of Union. The Articles enacted were not, and were not intended to be, a complete constitution. A full constitution would have contained provisions dealing not just with the Scottish representation for the future, but also with the English representation for the future; yet there is no detailed structure set out for that. Also, a full constitution would have set out rules to govern the promulgation of legislation (i.e., setting out the distribution of power between the different elements in the constitutional system); but the Acts of Union are silent on this. The Acts of Union set out explicitly, at most, but part of a constitutional arrangement. In such a context, Your Lordships' House should be especially astute not to read irrevocably entrenched rights into the Acts of Union, since the Acts of Union present only a part of the full constitutional picture. Raeding in such entrenched rights risks distorting the constitutional arrangements which are actually observed, and risks conferring a lop-sided rigidity to the constitution which could never have been intended.

54. Assuming such entrenchment is possible (as to which see Section (3) below), against this background, very strong words would be required create an irrevocable entrenchment for all time, and such words are absent from Article XXII.

55. Second, and still more fundamentally, such words are absent from Article III as well (creation of the Parliament of Great Britain). And in fact that Article has been abrogated, by the creation of the (new) Parliament of the United Kingdom in 1801. If article III is not irrevocably entrenched, it is impossible to construe Article XXII (which relates only to the constituent parts of the Parliament of Great Britain) as irrevocably entrenched.

56. Third, the Commissioners who negotiated the Treaty Articles plainly did contemplate that there would be changes in the peerage in Scotland over time. Article XXIII expressly contemplated that peers of Great Britain (who might be Scottish) could be created after the Union. The draftsmen cannot be assumed to have intended that the provisions of Article XXII were to be immutable for all time.

57. Fourth, the power to change Article XXII has been assumed to exist and has been exercised by Parliament a number of times. This subsequent parliamentary practice is itself a legitimate aid to the construction of Article XXII: Cape Brandy Syndicate v IRC [1921] 2KB 403, 414; Camille & Henry Dreyfus Foundation Inc v IRC [1954] Ch 672, 690; The Petition of the Earl of Antrim [1967] AC 691, 716E (Lord Reid refers to Acts of 1857 and 1882 inpari materia to support his construction of an Act of 1800); Bennion, Statutory Interpretation, 3rd ed pp 541-543. The particular occasions of amendment of Article XXII are:

(1) The Union with Scotland (Amendment) Act 1707, which abolished the Scottish Privy Council, which, by virtue of Article XXII, played a part in the procedure for the selection of the representative peers;

(2) The Scottish Representative Peers Act 1707;

(3) Legislation commencing in 1832 affecting the number of Scottish MPs: see Annex 2 to this Case;

(4) The Representative Peers (Scotland) Act 1847 (10 and 11 Vict 52);

(5) The Representative Peers (Scotland) Act 1851 (14 and 15 Vict c 87);

(6) The Statute Law Revision Act 1867 (30 and 31 Vict 59);

(7) The Promissory Oaths Act 1868 (31 and 32 Vict c 72);

(8) The Promissory Oaths Act 1871 (34 and 35 Vict c 48);

(9) The Peerage Act 1963 (and it may be noted that even the Scottish peers who urged retention of some form of representative peer system assumed that Article XXII itself could be amended, since, far from maintaining that Article XXII was immutable, they proposed an amendment to increase the number of representative peers);

(10) The Statute Law Revision (Scotland) Act 1964;

(11) The Statute Law (Repeals) Act 1993;

(12) In addition, reference may be made to the amendment of Article XXIII (which is closely related to Article XXII)—which provided for trial of peers by peers—by the Criminal Justice Act 1948, s 83(3) and Schedule 10, to assimilate peers into ordinary criminal procedure.

58. Fifth, it is relevant to refer by analogy to other Articles of the Acts of Union which have not been expressed to be irrevocably entrenched. Article XX (protecting the heritable jurisdictions) and Article XXI (protecting the royal burghs) are both silent on the question of amendment by the Parliament of Great Britain. In each case, the provision has been abrogated: in the first case by the Heritable Jurisdictions (Scotland) Act 1746 (20 Geo II c 43) and in the second case by the Local Government (Scotland) Act 1973 (see Colin R Munro, the Union of 1707 and the British Constitution, in Hume Papers on Public Policy Vol 2 no 2 1994, p 92; JDB Mitchell, op cit, p 96).

59. In addition, reference should be made to the Scotland Act 1998, s 37: "The Union with Scotland Act 1706 and the Union with England Act 1707 shall have effect subject to this Act". And see generally, Annex 1 to this Case.

60. Sixth, to construe Article XXII as being subject to an implied power of amendment would bring it into harmony with Article XVIII, so far as that Article relates to "Laws which concen publick Right, Policy and Civil Government". Article XVIII relates to laws in use in Scotland at the time of Union. It provides that, while matters of private right in Scottish law may not be amended "except for evident utility of the subjects within Scotland", public law may be amended by the Parliament of Great Britain so as to "be made the same throughout the whole United Kingdom". The law governing the legislative role of peers is obviously a matter of public law. It would be odd indeed if Scottish laws on "publick Right, Policy and Civil Government" can be amended to be made the same throughout the United Kingdom, but United Kingdom public law (including public law as to the voting rights of peers) cannot be made the same throughout the United Kingdom.

61. Seventh, no academic commentator at the time of the repeal of the relevant part of Art XXII in 1963, or subsequently, has suggested that Parliament was not competent to effect that change in the law. On the contrary, it is accepted as having been effective, and not in breach of the Articles of Union: see eg Munro, loc cit, p 92; JDB Mitchell, op cit, pp 96-97.

(3) The Parliament of the United Kingdom is fully sovereign and competent to enact the Bill, whether it conflicts with the Acts of Union or not

62. For the reasons given above, it is submitted that the Committee does not need to address the question whether the UK Parliament can amend or repeal provisions of the Acts of Union which are expressed to be unalterable. However, if the submissions above are all rejected, the Government will submit that the United Kingdom Parliament has complete sovereignty to amend any provision of the Articles of the Acts of Union. This is true even in relation to those Articles which are expressed to be entrenched for all time (such as the creation of the United Kingdom, the succession to the Monarchy, the Scottish Courts and the Church of Scotland).

63. Several commentators have suggested the contrary, arguing that certain of the Articles of the Acts of Union may amount to fundamental law. See TB Smith, op cit at p110 and in Stair Memorial Encyclopaedia vol 5 paras 341-353, JBD Mitchell, Constitutional Law (2nd ed, 1968) chapter 4, DN MacCormick (1978) 29 NILQ pp 1-20, M Upton in [1989] 105 LQR pp 79-103. But this argument requires to be set against the legal and political realities which have resulted from the development of our constitutional law since 1707.

64. Whatever the historical position of the Scottish and English Parliaments before 1707 it is submitted that the doctrine of the complete sovereignty of Parliament[2] has developed since the 1707 Union and is now established. The practice of Parliament since 1707, the approach of the judiciary and the views expressed by influential commentators support the view that Parliament is fully competent to amend or abrogate even an entrenched provision of the Articles. The establishment of the sovereignty of the UK Parliament, including the power to abrogate entrenched provisions in the Acts of Union, is the critical legal fact in the present situation.

The practice of Parliament since 1707

65. The view of the polity in 1707 as to the fundamental powers of the new Parliament is unclear. While it has been asserted that the Scottish Parliament did not have complete sovereignty, a contrary view also has been expressed. See Stair's "Institutions" IV.1.61, Erskine "Institute" 1.1.19. Even in relation to the English Parliament, it was clear beyond all argument that it had complete sovereignty: see Halsbury's Laws of England, Vol 44(1), 4th ed Reissue, para 1201, fn4; JDB Mitchell, op cit pp 69-70, DGT Williams [1972] 31 CLJ 266 at pp 269-270. But whatever the view in 1707, the United Kingdom Parliament has legislated to abrogate provisions, including "entrenched" provisions, of both the Anglo-Scottish and the British-Irish Unions.

66. In relation to the Union between England and Scotland, the UK Parliament has repealed provisions, which, like Article XXII, contain no express statement as to whether they may be amended. Thus the abolition of heritable jurisdictions in 1748[3] abrogated Article XX of the Acts of Union and the Local Government (Scotland) Act 1973, by removing the functions of the royal burghs, abrogated Article XXII. Changes in electoral law since 1832 have increased the number of MPs and redrawn parliamentary constituencies and the Peerage Act 1963, mentioned above, has altered the composition of the House of Lords. These changes have altered the compromise reached in Article XXII.

67. Parliament has also altered provisions that were stated in the Articles to be unalterable. The entrenched provisions of the Acts of Union in relation to the establishment of the Church of Scotland were overridden by the Universities (Scotland) Act 1853, which removed the obligation of Scottish professors to confess their faith, and the Universities (Scotland) Act 1932.

68. The Report of the Royal Commission on the Constitution 1969-73 (1973 Cmnd 5460), the Kilbrandon Commission, recognised the supremacy of Parliament (para 56):

"No special procedures are required to enact even the most fundamental changes in the constitution. Thus the creation of the Irish Free State in 1922 was made possible by an ordinary Act of Parliament, despite the declared intention of the Act of Union of 1800 that the union of Great Britain and Ireland should last for ever."

69. The Kilbrandon Commission was not alone in recognising that the Union of 1800 between Great Britain and Ireland and the subsequent actings of the UK Parliament provide an analogy to the position in relation to the Anglo-Scottish Union. See O Hood Phillips, Constitutional and Administrative Law, 7th ed (1987), pp 62-63; De Smith and Brazier, Constitutional and Administrative Law, 7th ed (1997) pp 77-78; JDB Mitchell op cit pp 73-74; CR Munro The Union of 1707 and the British Constitution in Hume Papers on Public Policy Vol 2 no 2 1994, p92 and, for a contrary view, TB Smith Constitutional Law in Stair Memorial Encyclopaedia vol 5, para 346 fn 9.

70. The Irish union, like the Anglo-Scottish union, was negotiated by commissioners and was based on Acts of the British and Irish Parliaments. It also contained "entrenched" provisions. Parliament overrode "entrenched" provisions by disestablishing the Church of Ireland by the Irish Church Act 1869 and later by altering the union fundamentally by the Irish Free State (Constitution) Act 1922. See The Petition of the Earl of Antrim [1967] AC 691 and Ex parte Canon Selwyn (1872) 36 JP 54.

71. It is submitted that it is artificial to treat Parliament as having acted outside an established legal framework in effecting such changes to the Anglo-Scottish and British-Irish unions.

The approach of the judiciary

72. Judges at the highest level have accepted that Parliament enjoys complete legal sovereignty; see eg Liversidge v Anderson [1942] AC 206, 260-261 (Lord Wright); Madzimbamuto v Lardner-Burke [1969] 1 AC 645, 723 (Lord Reid); Pickin v British Railways Board [1974] AC 765, 782 and 787 (Lord Reid; R v Secretary of State for the Environment, ex p Nottingham CC [1986] 1 AC 240, 265 (Lord Templeman). See also the review of the authorities in O Hood Phillips op cit pp 50-53.

73. There has been no decision of a court in which the ratio has contradicted the submission which the Government advances on the sovereignty of Parliament. The high point for those who advance an opposing view is MacCormick v Lord Advocate 1953 SC 396. In that case Lord President Cooper (with Lord Carmont concurring) expressed the (obiter) view that the pre-1707 Scottish Parliament did not have an unlimited sovereignty and that the UK Parliament was bound by the fundamental terms of the Acts of Union. But even in that case it was recognised that there was neither precedent nor authority of any kind for the view that the domestic courts of either Scotland or England had jurisdiction to review legislation on matters of public right which did not conform to the provisions of the Acts of Union (p 413).

74. In Gibson v Lord Advocate 1975 SC 136 Lord Keith expressed the opinion that the courts could not adjudicate on the question whether an Act of the UK Parliament altering a particular aspect of Scottish private law was for the evident utility of the subjects within Scotland. He reserved his opinion on the legal position of an Act of the UK Parliament which purported to abolish the Court of Session or the Church of Scotland. But in Sillars v Smith 1982 SLT 539 the Second Division held that the vires of an Act of Parliament could not competently be challenged in a Scottish Court.

75. Other cases that touch on the issue include Laughland v Wansborough Paper Co Ltd 1921 1 SLT 341, Pringle, Petitioner 1991 SLT 330, Murray v Rogers 1992 SLT 221 and Fraser v MacCorquodale 1992 SLT 229. In none of these cases have the courts been prepared to express an opinion on, or strike down, legislation when invited to do so on the basis of the Articles of the Acts of Union.

76. Parliament, by enacting the European Communities Act 1972, has accepted the possibility that a competent court may hold that a parliamentary measure is invalid if it is incompatible with Community law. But (as Lord President Hope stated in Murray v Rogers at p.225) "[t]he position is different where the validity of an Act of Parliament is questioned on grounds other than incompatibility with Community law, simply because no legislation which is enacted by Parliament is acknowledged by Parliament as being open to scrutiny by any other court".

The views of commentators

77. Most commentators maintain that Parliament is fully competent to amend or abrogate any provision of the Articles of the Acts of Union. See e.g. Dicey, An Introduction to the Study of the Constitution, pp 144-145; Dicey and Rait, Thoughts on the Union between England and Scotland (1920) pp 19-23, 242-244; O Hood Phillips, Constitutional and Administrative Law, 7th ed (1987), pp 63-66; De Smith and Brazier, Constitutional and Administrative Law, 7th ed (1997), pp 77-79; Bradley and Ewing, Constitutional and Administrative Law, 12th ed (1998), pp 79-81; Maitland, The Constitutional History of England (1908) p 332: WIR Fraser (later Lord Fraser of Tullybelton), An Outline of Constitutional Law, (1948) pp 12-14; Sir W Wade, Constitutional Fundamentals, (1980), p 33; RFV Heuston, Essays on Constitutional Law (2nd ed 1964), pp 9-10; CR Munro, op cit pp 87-98; DGT Williams, op cit p 270; and Sir Owen Dixon C J (1957) 31 Australian LJ 240, 244.

78. It is submitted that this has become the dominant view of the powers of the UK Parliament. As the franchise of Parliament expanded in the 19th Century after 1832, so its moral and political authority, as a democratic and representative legislature, increased.

The need for a mechanism for change

79. In further support of the submission that the doctrine of the sovereignty of Parliament is now established, the Government refers to the severe political and legal difficulties which would otherwise flow, if the Articles of Union are entrenched and may not legally be modified. See O Hood Phillips, op cit p 66. Whatever may have been the intentions of the Commissioners in 1706, the constitution has required to adapt to political and social change over almost 300 years. Where there is no mechanism for amendment of the Articles of Union, it is imperative that the general law should supply such a mechanism outside the Articles, by the development of the law concerning the constitutional sovereignty of Parliament:

"Just as on a smaller scale it has been found necessary to restrict the ability of testators and settlers to plan for future generations, so on a larger scale succeeding generations must have or will find opportunities of development according to their ideals." JDB Mitchell, op cit p74.

The effect of the "entrenched" provisions of the Articles of Union

80. The UK Parliament has given particular consideration to Scottish opinion when determining on legal change that impinges on extant "entrenched" provisions of the Articles of Union. For example, Parliament had regard to Scottish opinion when considering the Universities (Scotland) Bill in 1853 and when considering the scope of proposed judicial reforms in 1872-73. But these political considerations are not legal constraints on the sovereign power of the UK Parliament. See Madzimbamuto v Lardner-Burke [1969] 1 AC 645.

81. The now repealed Article XXII of the Acts of Union was not stated to be unalterable. There is therefore no question of abrogating an entrenched provision of the Union. Even if it were entrenched, the Government submits that Parliament has the political and moral authority to enact the House of Lords Bill as Scottish acceptance of the change is manifested by the following:

(a) A promise to reform the House of Lords by abolition of the right of hereditary peers to sit and vote formed part of the manifesto of the Labour Party at the last general election, and Labour secured the greatest number of MPs in that election;

(b) Of the MPs representing Scottish constituencies who have voted on the Bill, all voted in favour of it; and

(4) Further and in any event, any inconsistency between the Bill as enacted and the Articles would not be justiciable and no court could strike the Bill down

82. The authorities referred to in paragraphs 73 to 75 above all suggest that a matter such as this should be regarded as non-justiciable, including MacCormick at p 413. It is submitted that the issue postulated at this stage in the argument on this reference would be even less justiciable than the test of "evident utility of the subjects within Scotland" which appears in Article XVIII, but was nonetheless said to be non-justiciable in Gibson v Lord Advocate 1975 SLT 134 (per Lord Keith).

M Lynda Clark QC
HM Advocate-General for Scotland

Patrick Hodge QC

Philip Sales

September 1999

1 Also, peers of the United Kingdom. Peers created before 1707 were either peers of England or peers of Scotland. Peers created between 1707 and 1800 were peers of Great Britain. Peers created from 1801 are peers of the United Kingdom. Back

2 Whatever might now be the position in relation to the European Union. Back

3 Heritable Jurisdictions (Scotland) Act 1746 (20 Geo II c 43), which effected the abolition in 1748. Back