Representative peer

In the United Kingdom, representative peers were individuals elected by the members of the Peerage of Scotland and the Peerage of Ireland to represent them in the British House of Lords. Members of the Peerage of England, Peerage of Great Britain, and Peerage of the United Kingdom all had the right to sit in the House of Lords; they did not elect a limited group of representatives. Representative peers were introduced in 1707, when England and Scotland were united into the Kingdom of Great Britain. At the time, there were 168 English and 154 Scottish peers, though the English population was significantly higher than the Scottish population. The English peers feared that the House of Lords would be swamped by the Scottish element, and consequently arranged for the election of a small number of representative peers to represent Scotland. A similar arrangement was adopted when Great Britain and Ireland merged into the United Kingdom in 1801.

Scotland was allowed to elect sixteen representative peers, whilst Ireland could elect twenty-eight. Those chosen by Scotland sat only for one Parliament; after each dissolution, new Scottish representative peers were elected. Irish representative peers, on the other hand, sat for life. Elections for Irish representative peers ceased when the Irish Free State left the Kingdom in 1922. Elections for Scottish representative peers ended in 1963, when all Scottish peers obtained the right to sit in the House of Lords, whether representative peers or not.

Scotland

Under the Act of Union of 1707, the peers of Scotland were entitled to elect sixteen representative peers. Each representative peer served for the duration of one Parliament (a maximum of seven years), but could be re-elected during future Parliaments. Upon the summons of a new Parliament following the dissolution of a previous one, the Sovereign would issue a proclamation summoning Scottish peers to the Palace of Holyroodhouse. The elections were held in the Great Gallery, the large room that was decorated by eighty-nine of Jacob de Wet's portraits of real and legendary Scottish monarchs, from Fergus I to Charles II. The Lord Clerk Register would read aloud the Peerage Roll, and each peer would indicate his presence when called. The Roll was then re-read, with each peer responding by publicly announcing his votes. The same procedure was used whenever a vacancy arose.

The block voting system was used, with each peer casting as many votes as there were seats to be filled. The system, however, permitted the party with the greatest number of peers, normally the Conservatives, to procure a disproportionate number of seats, with opposing parties sometimes being entirely unrepresented. The Lord Clerk Register was responsible for tallying the votes. The return issued by the Lord Clerk Register was sufficient evidence to admit the representative peers to Parliament; unlike other peers, Scottish representatives did not receive writs of summons.

The position and rights of Scottish peers in relation to the House of Lords was unclear during most of the eighteenth century. In 1711, James Douglas, 4th Duke of Hamilton, a peer of Scotland, was created Duke of Brandon in the Peerage of Great Britain. When he sought to sit in the House of Lords, he was denied admittance, the Lords ruling that a peer of Scotland could not sit in the House of Lords unless he was a representative peer, even if he also held a British peerage dignity. They reasoned that the Act of Union 1707 had established the number of Scotsmen in the House of Lords at no more and no less than sixteen. In 1782, however, the House of Lords reversed the decision, holding that the Crown could admit anyone it pleases to the House of Lords, whether a Scottish peer or not, subject only to qualifications such as age and citizenship.

Under the Peerage Act 1963, all Scottish peers procured the right to sit in the House of Lords, ending elections for representative peers. Scottish as well as British and English hereditary peers lost their automatic right to sit in the Upper House with the passage of the House of Lords Act 1999. When the House of Lords Bill underwent debate, the question arose as to whether or not the proposal would violate the Treaty of Union. In suggesting that the Bill did indeed violate the Articles of Union, it was submitted that, prior to Union, the Parliament of Scotland was entitled to impose conditions, and that one fundamental condition was a guarantee of representation of Scotland in both Houses of Parliament. It was implied, furthermore, that the Peerage Act of 1963 did not violate the requirement of Scottish representation, set out in the Article XXII of the Treaty of Union, by allowing all Scottish peers to sit in the House of Lords: as long as a minimum of sixteen seats were reserved for Scotland, the principles of the Article would be upheld. It was further argued that the only way to rescind the requirement of Article XXII would be to dissolve the Union between England and Scotland, which, of course, the House of Lords Bill did not seek to do.

Counsel for the Government, however, held a different view. Firstly, it was noted that the Peerage Act 1963 explicitly repealed the portions of the Articles of Union relating to elections of representative peers, and that no parliamentary commentators had raised doubts as to the validity of those repeals. As Article XXII had been (at least purportedly) repealed, there was nothing specific in the Treaty that the bill transgressed. It was further asserted by the Government that Article XXII could be repealed because it had not been "entrenched." (Examples of "entrenched" provisions are numerous: England and Scotland were united "forever," the Court of Session was to remain "in all time coming within Scotland as it is now constituted," and the establishment of the Church of Scotland was "effectually and unalterably secured.") Article XXII, however, did not include any words of entrenchment, and, it was argued, was open to amendment.

It was further pointed out by the Government that, even if the election of Scottish peers were entrenched, Parliament could amend the provision under the doctrine of Parliamentary sovereignty. Though the position of the Church of Scotland was "unalterably" secured, the Universities (Scotland) Act 1853 repealed the requirement that professors declare their faith before assuming a position. In Ireland, meanwhile, the Church of Ireland was entirely disestablished in 1869, though the Articles of Union with Ireland had clearly "entrenched" the establishment of that body. In 1922, the Union with Ireland was dissolved, though Great Britain and Ireland were united "forever." It was therefore suggested that Parliament could, if it pleased, repeal an Article of Union as well amend as any underlying principle.

The Privileges Committee unanimously found that the Articles of Union would not be breached by the House of Lords Bill if it were enacted. The bill did receive Royal Assent, and from 2000, hereditary peers have not had the automatic right to sit in Parliament. Scotland, however, does not remain entirely unrepresented, as a significant number of life peers are from that part of the United Kingdom.

Ireland

The Chamber of the Irish House of Lords was the location of the first election of Irish representative peers.

Under the Act of Union of 1800, Irish peers elected twenty-eight representative peers, who served for life. The Chamber of the Irish House of Lords housed the first election, with the peers or their proxies attending. The Clerk of the Crown in Ireland was responsible for electoral arrangements; each peer voted by an open and public ballot. The results of the first election were announced by the Clerk of the Crown. After the Union, new elections were held whenever vacancies occurred due to the death of any peer. The Lord Chancellor of Great Britain (the presiding officer of the House of Lords) would certify the vacancy, and the Lord Chancellor of Ireland would direct the Clerk of the Crown to issue ballots to Irish peers. The ballots were returned to the Clerk of the Crown in Ireland, who was responsible for determining the victor.

Ireland was also represented in the House of Lords by four Lords Spiritual, who sat in rotation for terms lasting one session each. At any one time, an Archbishop and three Bishops represented Ireland, with the seat passing according to a fixed rotation (except that those Lords Spiritual who were also elected to serve as representative peers would be omitted). The order for Archbishops was: the Archbishop of Armagh, the Archbishop of Dublin, the Archbishop of Cashel and the Archbishop of Tuam. The order for Bishops was: the Bishop of Meath, the Bishop of Kildare, the Bishop of Derry, the Bishop of Raphoe, the Bishop of Limerick, Ardsert and Adgadoe, the Bishop of Dromore, the Bishop of Ephin, the Bishop of Down and Connor, the Bishop of Waterford and Lismore, the Bishop of Leighlin and Ferns, the Bishop of Cloyne, the Bishop of Cork and Ross, the Bishop of Killaloe and Kilfenora, the Bishop of Kilmore, the Bishop of Clougher, the Bishop of Ossory, the Bishop of Killala and Achonry and finally the Bishop of Clonsert and Kilmacduagh. The rotation was changed by the Church Temporalities Act of 1833, which merged many dioceses and degraded the archbishoprics of Tuam and Cashel to bishoprics.

Following its disestablishment in 1871, the Church of Ireland ceased to send spiritual representatives. In 1922, with the formation of the Irish Free State, Irish peers ceased to elect representatives, but those already elected continued to serve for life. The last of the temporal peers, Francis Charles Adelbert Needham, 4th Earl of Kilmorey, died in 1961. Disputes then arose as to whether or not representative peers could still be elected. The Act establishing the Irish Free State was silent on the matter, though it did abolish the mechanism for such elections by abolishing the posts of Lord Chancellor of Ireland and Clerk of the Crown in Ireland. Various Irish peers petitioned the House of Lords for a restoration of their right to elect representatives. In 1962, the Joint Committee on House of Lords Reform rejected such plans. In the next year, when the Peerage Act, which among other things gave all Scottish peers the right to sit in the House of Lords, was being considered, an amendment to similarly allow Irish peers to attend was defeated, ninety to eight. Two years later, in 1965, Randall John Somerled McDonnell, 8th Earl of Antrim and other Irish peers petitioned the House of Lords, arguing that the right to elect representative peers had never been formally abolished.

The House of ruled against the Irish peers. The Lord Reid, a Lord of Appeal in Ordinary, based his ruling on the Act of Union, which stated that representative peers sat "on the part of Ireland." He reasoned that, since the island had been divided into the Irish Free State and Northern Ireland, there was no such political entity called "Ireland" which the representative peers could be said to represent. Lord Reid wrote, "A statutory provision is impliedly repealed if a later enactment brings to an end a state of things the continuance of which is essential for its operation."

The Lord Wilberforce, another Lord of Appeal in Ordinary, disagreed that a major enactment such as the Act of Union could be repealed by implication. He argued instead on the basis that the Irish Free State (Agreement) Act 1921—which was silent on the election of representative peers—abolished the posts of Lord Chancellor of Ireland and Clerk of the Crown in Ireland. The Lord Chancellor of Ireland was responsible for calling elections of representative peers, and the Clerk of the Crown in Ireland was responsible for sending peers their ballots. Since these offices had been abolished, Lord Wilberforce argued, there was no mechanism by which Irish peers could be elected. Here too, the petitioners lost.

The petitioners did not bring up the point that Northern Ireland remained a part of the United Kingdom. Lord Reid's objections would then be rebutted, as representative peers would sit on the part of Northern Ireland. Similarly, Lord Wilberforce's arguments relating to the removal of the mechanism for the election could be answered, as the Lord Chancellor of Ireland and the Clerk of the Crown in Ireland did have replacements in Northern Ireland. Burke's Peerage & Baronetage suggests that the reason for which the arguments relating to Northern Ireland "was that leading counsel for the petitioning Irish peers was convinced that the members of the Committee for Privileges were with him on what he considered was his best argument and did not want to alienate them by introducing another point."

In order to prevent further appeals on the matter, Parliament passed, as a part of the annual Statute Law Repeals Bill (1971), a clause revoking the sections of the Act of Union relating to the election of Irish representative peers.

House of Commons

After the Union between England and Scotland in 1707, Scottish peers (even those who did not sit as representative peers) were barred from sitting in the House of Commons. Irish peers, however, were not subjected to the same disability after 1801. It was provided that Irish peers (but not representative peers) could serve from a constituency in Great Britain provided they gave up their privileges. Under no circumstances were they allowed to represent an Irish constituency.

The Peerage Act 1963, which allowed all Scottish peers to sit in the House of Lords, also permitted all Irish peers to sit in the House of Commons from any constituency in the United Kingdom. Irish peers were not required to renounce the privilege of the Peerage before taking their seats in the Lower House. Scottish peers were allowed to sit in the House of Commons by the House of Lords Act 1999.

See also

• List of Irish representative peers
• List of Scottish representative peers

References

• Farnborough, T. E. May, 1st Baron. (1896). Constitutional History of England since the Accession of George the Third, 11th ed. London: Longmans, Green and Co. (http://home.freeuk.com/don-aitken/emayvols.html)
• HL 106-I. (1998–1999). (http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldselect/ldprivi/106i/106i01.htm)
• Lysaght, C. (1999). "The Irish Peers and the House of Lords - The Final Chapter." Burke's Peerage & Baronetage, 106th ed. London: Fitzroy Dearborn. (http://www.burkes-peerage.net/sites/ireland/sitepages/page93.asp)
• "Peerage." (1911). Encyclopædia Britannica, 11th ed. London: Cambridge University Press.