Reform-as if it hasn't already been "got at". That plus a referendum
on AV is really at the top of the Coalition's list.
The fact that we are in deep trouble financially and people are going
to lose their jobs and possibly some, their homes, who really cares
when such matters as reforn of the HOL and a new expensive vote on AV
has to not just "thought about" but take precidence.
Anyway, I put some old notes on the subject-yes they are long-in
attachment in the hope they are of use to you. xxxxxxxxxx a
ACT OF UNION 1706, 1707. updated June. 2004.
The government’s mandate was, “No one shall be a Member of the House of Lords by virtue of a hereditary peerage”. This was fudged at the time, leaving 92 Peers of the Realm in place with a certain solemn promise, which some commoners seemed to know instinctively would not be kept, but sadly, relied upon by the Noble Lords and Ladies. However, for now, they are still in place.
The ‘Privileges Committee’s ‘brief’ (20 October 1999) was to Report on, “whether the House of Lords Bill would, if enacted, breach the provisions of the Treaty of Union between England and Scotland”?
We already know the answer was “NO”, for the House of Lords as we have known it for 300 years was decimated by this Government in their efforts at “modernisation”. My own brief is to see whether an ordinary Commoner can begin to understand why people that have been elected to serve in High Office having sworn an oath of allegiance to the Queen and to serve this Country, can destroy that which they are in charge of to preserve and protect, albeit temporary.
This second article is a continuation of, “Abolishing (unlawfully) the remaining Hereditary Peers of the Realm” dated 31.11.2003
There is no doubt that there would have been no need for the “Act of Union”, a Treaty between two separate Nations/Countries, in fact Kingdoms, that had decided to be united, a coming together to be ruled by one Parliament situated in England, and that this was to be for all time, if Article XX11 of that Treaty was not included or entrenched within it. There is no doubt at all the Act of Union, was and is entrenched. (Protected) it was indeed a TREATY and although at the time of writing the 1706 Treaty, it was insecure up until the Treaty had been ratified. It was ratified.
There is no doubt at all that without representation of the hereditary Peers and representation in the House of Commons in the Westminster Parliament guaranteed by statute, there would have been no Union. In other words those Members in the Scottish Parliament would not have agreed to the Treaty of Union if the position of the Scottish Hereditary Peers and of Members of Parliament had not been entrenched.
The Treaty and Acts of Union are the very foundation stones of the Common Law Constitution of this Kingdom and Parliament, for not only was it the end of an independent sovereign Nation and Country of Scotland, it was the birth of the then sovereign Nation and people’s of Great Britain as well as the “Parliament of Great Britain” as we know it today, the Great British Parliament and the United Kingdom of Great Britain. These words are to be found in those ancient documents.
As I understand it, (Quite simply) if an alteration of a Treaty is required, it needs the ‘voice’ of assent from all parties that have taken part in the original Treaty. This was also the same in the EU Treaties signed thus far, however not so in the proposed EU Constitution for each Country is allowing the Union to alter basically ‘at will’, and will probably agree so, in the constitutional document. There is no such statement in the Treaty of Union 1707.
I also point to Volume 10 of Halsbury’ s Statutes on constitutional law, where it is found that the treaty (between England and Scotland (1706) is embodied in statute and is therefore still part of the law of the United Kingdom.
A strong argument could be put forward that if the British Parliament renegades on the Treaty by not honouring it’s commitment to the Scottish hereditary peers, then the whole treaty could fall. Scotland could then revert to full independence and sovereignty. It surely is worth questioning whether it is indeed a repudiation of the Treaty? The people of Scotland would, I am sure, be most interested.
The Treaty, Act of Union was signed by the Queen at that time-not by Parliament-a fact not lost on me and one wonders what the present Queen would say if Her Majesty’s signature was taken so lightly? I would wish and petition Parliament for more powers for the Crown, a sure way of stopping an over-powerful government.
The words in the Act of Union are (1706) Article 1, “That the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date thereof and forever after be United into one Kingdom by the name of Great Britain. And that the Ensigns Armorial of the said United Kingdom be such as her Majesty shall appoint and the Crosses of St Andrew and St George be conjoined in such a manner as Her Majesty shall think fit and used in all Flags Banners Standards and Ensigns both at Sea and Land.”
Article 3, “That the United Kingdom of Great Britain be represented by one and the same Parliament to be styled the Parliament of Great Britain”.
Article 5, (Proof of the Act of Union being a TREATY) “That all ships or vessels belonging to her Majesties Subjects of Scotland at the time of Ratifying the Treaty of Union of the two Kingdoms in the Parliament of Scotland though foreign built be deemed and pass as ships of the build of Great Britain:….”
ArticleXV1 in case Scotland ever wanted to ‘go it alone’ as regards the EU Single currency) “That from and after the Union the Coin shall be of the same standard and value throughout the United Kingdom as now in England….”
Article XV11 “That from and after the Union the same weights and Measures…”
Article XX11 Perhaps the most important of Articles, for without this particular Article the Union between England and Scotland would not have come about. The two Kingdoms would have remained separate for all time (unless one was conquered by another, in a war). “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 Privi 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 to be elected to sit in the House of Commons of the Parliament of Great Britain, according to the Agreement of this Treaty, in such a Manner as by an Act of this Treaty, in such a Manner as by an Act of this present Session of the Parliament of Scotland is or shall be settled; which Act is hereby declared valid as if it were a Part of, and engrossed in this Treaty.
I have come across many questionable items concerning this Government’s interpretation of the Act of Union, and many arguments one way or another. I have just finished reading page after page (maybe a couple of hundred pages) of debates by the Privileges Committee on basically one question alone. I have never come across so may ways in which to 'twist', bend', 'manipulate', 'stretch', 'shrink', 'manoeuvre’ words to fit the occasion simply to allow the Prime Minister of the day, ways in which to get rid of the Hereditary Peers from the House of Lords now that he has made up his mind so to do.
http://www.publications.parliament.uk/pa/ld199899/ldselect/ldprivi/108i/10801.htm
The one lengthy point debated was “Whether the House of Lords Bill (as amended on Report) would, if enacted, affect the right of those Hereditary Peers who have answered to their Writ of Summons before the Bill receives Royal Assent to continue to sit and vote throughout the Parliament in which the Bill is enacted”.
I turn to Halsbury’s Laws, “The right of Hereditary Peers to receive writs of summons: “Subject to certain exceptions, any person who succeeds to a peerage of England, Scotland, Great Britain of the United Kingdom and proves his right to such peerage, and any person who is created a Hereditary Peer of the United Kingdom is entitled to receive, in virtue of his peerage, a writ of summons to sit and vote in the House of Lords”. To me, that is a very clear explanation. To return to Halsbury again, “A new Parliament can be called together for the transaction of business only by the Crown. It is summoned in pursuance of a Royal proclamation made with the advice of the Privi Council. This proclamation directs writs to be issued by the Lord Chancellor from the office of the Clerk of the Crown in Chancery and by the Secretary of State for Northern Ireland from the office of the Clerk of the Crown in Northern Ireland”.
There then comes the duties of the Lord Chancellor, his taking of the Oath, the returning to sitting on the Woolsack etc, which also causes me to think about one of the reasons for getting rid of the position and title of the Lord Chancellor for great are his duties, his duties to his Queen and the serving of writs of summons. If there was no such person as the Lord Chancellor, then this Government in one fell swoop does away with the traditional long history of serving writs to the hereditary peers. I have no doubt at all that if citizens of this country were to read the documents I have just read, they would never vote for anyone to sit on those Green benches again. It would be quite possible that anarchy would reign.
My findings are, that not only has Article XX11 been breached, but also the original Treaty has, by recent actions, been repudiated. Unless the sixteen hereditary peers are allowed to remain, and I respectfully suggest that they should remain according to Article XX11 plus the remaining hereditary peers must also remain, otherwise it would be discrimination against England and Wales, failing this, there is without doubt a repudiation of the whole treaty. That also means that the Scottish MP’s should also be withdrawn from the House of Commons forthwith, the Union between England and Scotland would no longer be in place.
Had the English Parliament at that time not agreed to a reasonable representation (16) of Scottish Hereditary Peers in the Lords and 45 Scottish Members of Parliament to sit in the House of Commons, there would never have been any requirement for a treaty between the two separate nations. They would have remained two separate nation states. There would be no Scottish MP’s in our House of Commons for they would be need in their own Parliament. The desire of the present British Government is however, by one method or another, to get rid of the hereditary peers. One reason for this is because over the years, the Hereditary Peers have been the most troublesome when it came to blocking the House of Commons. Background statistics to this can be seen in Government Research Paper 98/104.
I am aware of the Peerage Act 1963, already mention in the previous paper, but I would argue that because the whole Act of Union is entrenched, that the Article concerned can only be enhanced. The question then should be put that having found that the Peerage Act was indeed ultra virus, then any acts that took place because of the Peerage act, should be investigated and rectified. (I will also mention that anything that any Government of this Country transfers to the European Union, becomes ‘entrenched’ and as such cannot be altered in any way, in the same way that ‘entrenchment’ of our Common Law Constitution should not be altered, but respected and adhered to at all times. We all have to remember that our sworn allegiance is to our Queen (Crown) and this country, not to the Union).
I repeat some interesting comments by various people, starting with Lord Slynn of Hadley (Privileges Committee-Second Report). “The more complex question is whether the Bill, if enacted, would violate Article XX11 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 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---i.e. 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 Article XX11 constitute a fundamental law of the constitution which is entrenched in the sense that Parliament cannot legislate in violation of it”. And I say “amen” to that.
Lord Hope of Craighead also reinforces that same argument when he repeats the words of Sir Hersch Lauterpacht’s observation in Oppenheim’s Peace, 8th edition 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 independences and becomes a mere part of another”. There is time for reflection there, for what will happen to this Country if it adopts the proposed written EU Constitution for this country.
Lord Slynn goes on to relate Professor Smith, "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 qua treaty. 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."
Later on Lord Craighead put forward in his argument towards the abolishing of the hereditary peers, “The conclusion which must be drawn from these various enactments, as Mr. Hodge Q.C. 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 section 4 of the Peerage Act 1963, and that Article XXII of each of the two Acts which constituted the Union Agreement has been repealed. Mr. Keen for Lord Gray submitted that it was ultra vires of Parliament to repeal Article 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 article XXII lacks the character of fundamental law, which is an essential prerequisite for the argument that Parliament went out with its powers when it enacted these repeals”. Needless to say, I too believe that it was ultra vires of Parliament to repeal Article XX11, and this fact should not be ignored.
A very cleaver person, I am sure could unravel the proceedings for and on behalf of the people and country of Scotland should they so have a mind to.
The case put by Lord Gray can be found on
http://www.publications.parliament.uk/pa/ld199899/ldselect/ldprivi/108i/10810.htm
ultra vires (Beyond the powers=ultra vires acts are invalid)
I add that the Act of Union also affects the Act of Settlement and that is another important matter altogether and it must never be ignored or eyes taken off the ball. Unless of course, all want this great Country to just become Regions of the EU in which case, there is absolutely no need for either Houses of Parliament.
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