Constitutional Matters

It has been the consistent view of this magazine that although some members of the Government may understand their arguments about the future of the House of Lords, very few understand the historical facts on which their arguments profess to be based. Lady Jay's speeches, some of which have been quoted earlier on these electronic pages, are hopelessly misinformed. Tony Benn (the erstwhile Anthony Wedgewood-Benn), speaking from the backbenches on the Government side, flaunts his ignorance while boasting of his expertise. Now the Leader of the Lower House, Mrs Beckett, facing an amendment that would allow sixteen Scottish hereditary peers to survive, ostensibly to ensure that the Government's reform of the House of Lords did not undermine the legislation binding Scotland with England, has revealed a lamentable ignorance of an historical issue critical to the contemporary political debate on the British constitution ~ the Acts of Union whose perceived unfairness justifies, for many, the current support for Scottish devolution.

Our Westminster correspondent reported as follows ~

Mrs Beckett advised the House of Commons that "the spirit of the Act [of Union] is that there should be equal treatment between the peers of Scotland and England", and that since both Scottish and English hereditary peers were losing their right to sit in the Lords, "the provision of the Act that allows for equal treatment is being preserved".

It will not surprise those readers who attempt to follow the perverse logic of the Government in this debate to find once again that Labour spokesmen really do not understand the subject on which they pontificate so readily. The "spirit of the Act of Union" (and, indeed, of the Acts, for there were two, one in Scotland and one in England) provided nothing for equal treatment. It should hardly be necessary to dwell on the discrepancy of all the English peers continuing to sit in Parliament, while only 16 Scottish peers were admitted, with the consequently inevitable result that, outnumbered so heavily, the Scottish peers never acted as a Scottish bloc, and were absorbed into the English political parties. (This was quite deliberate, as the debates showed, for the English peers feared the power of a combined Scottish vote.)

To understand the deplorably unequal "equal treatment" on which Mrs Beckett rests her case it is necessary only to examine the far more liberal treatment given to the Irish peers when Ireland joined the Union a century later ~ for new Irish peers could be created, while the Scottish peerage was to die off naturally; 28 peers would be invited to Westminster, instead of 16 for the Scots; peers not invited to Parliament could stand for the House of Commons, although the Scottish peers could not, etc).

Of course, the Irish did not receive equal treatment either, but as it was so obviously better than that given to the Scots, Mrs Beckett may not so brazenly claim a parity between the peers of England and Scotland. The crucial issue here is not that the Union brought real benefits to both countries (England in terms of strategic politics and Scotland in commercial freedom), but that there was no spirit of "equal treatment" applied to specific areas. The reality is that Scotland surrendered its independent sovereign parliament and part of the compensatory package was the sixteen seats for Scottish peers at Westminster. (The new devolved assembly soon to seat itself at Holyrood is not a substitute for Scotland's original parliament, for it does not have its powers, nor is it compensation for the loss of the rights of Scottish peers in the British parliament.)

Before Mrs Beckett speaks again on the equality of treatment accorded after the Union, she should seek a briefing from her advisers. She might also ask them why the Government appears willing to allow two English peers, the Duke of Norfolk as Earl Marshal and Lord Cholmondeley as Lord Great Chamberlain, to remain in the House of Lords ex officio, yet not their Scottish equivalent, the Earl of Erroll as Lord High Constable.

Mr Benn

Although many will find the breach in the terms of the Acts of Union dishonourable, others may just shrug as if such conduct with this Government is the norm. Judged against the intended constitutional amendments now boasted, this is perhaps a small matter. But as a measure of New Labour's unique blend of blandishment and ignorance it is quite useful. Consider, for example, the recent lecture to the Commons from the modest and loquacious Mr Benn. (He is less important than Mrs Beckett, and rather less modest also.)

"However, let us be clear about the House of Lords. ........ For my sins, I had to read the history of the place. Let me give the House a few examples. When peerages began in 1272, they were not hereditary."

But peerages did not begin in 1272. The Countess of Mar sits with a title held by the first Earl around 1115. Of course, its progression did not then follow modern principles, but from 1228 it did, and Duncan, 4th Earl of Mar, is her direct ancestor.

In England the Earls of Oxford and of Essex spring immediately to mind. The first of the former, Aubrey de Vere, was created Earl by charter in 1142 and his heirs in that title are almost inseparable from our national history (as Lord Chief Justice Crewe and Lord Macauley have both famously demonstrated). The first of the latter, his brother-in-law Geoffrey de Mandeville, was created Earl of Essex in 1140, and the royal charter specifically states that he is granted the earldom for himself "et heredes sui post eum hereditario jure."

And while Mr Benn solemnly lectures the House of Commons and has his incorrect "examples" recorded for posterity in Hansard, the government mill grinds on, spitting our its genetically modified seeds of wisdom. Until recently the official publication on the House of Lords Website announced that the Lords of Appeal in Ordinary (Law Lords) were, in effect, "the first Life Peerages." But English sovereigns have created life peers at least since 1377 when Guichard d'Angle was created Earl of Huntingdon for life. The first lady to be created an English life peer was Margaret, Countess of Norfolk, who was created Duchess of Norfolk for life in 1397. Life peerages were created also in the Scots Peerage. The last of these was for Francis Abercromby of Fetterneir, who was created Lord Glasfoord for life in 1685 (no creations of any peers being possible in the Scots Peerage after 1707).

The Government has not yet made a persuasive case for the abolition of the rights of the hereditary peers in advance of the creation of a credible and trustworthy alternative, and it will most assuredly never do so until ministers and mavericks are willing to study the issues over which they wish to trample.