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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. Peers in the Peerage of England, Peerage of Great Britain and Peerage of the United Kingdom all had the right to attend; they did not have to elect representatives from their number.
Scotland
The Palace of Holyroodhouse
The location of the elections of Scottish representative peers.
After the 1707 Act of Union was passed, uniting England and Scotland into the Kingdom of Great Britain, Scottish peers gained the right to elect sixteen representatives to attend the House of Lords. Representatives were elected for the duration of one Parliament; their term would end when the Parliament was dissolved, and the next term would begin when the next Parliament was summoned. Furthermore, elections were held whenever one of the representatives' seats became vacated due to death. The procedure of election was determined by an Act of the Scottish Parliament passed just prior to union, and was extremely simple: at the commencement of each new Parliament, the Sovereign would summon the peers of Scotland to some location in Scotland (normally Holyrood Palace), where they would cast their votes for the representative peers. The votes would be recorded and the results announced by the Lord Clerk Register or two clerks of the Court of Session. The return issued by the Lord Clerk Register would be sufficient proof of the right of the peer to sit in the House of Lords; no writ of summons would be issued.
The arrangement continued until the Peerage Act 1963 was passed; the Act provided that all Scottish peers would be entitled to a seat in the House of Lords, just like their English and British counterparts.
In 1999, the House of Lords Bill, which sought to eliminate the right of an individual to be summoned to Parliament by virtue of a hereditary title, was proposed. Doubts were raised as to whether the bill, by removing the right of Scottish peers to be represented in Parliament, would violate the Treaty of Union of 1707. The House of Lords referred the matter to their Committee on Privileges. The Committee reported to the House that the Treaty would not be violated, and that the portions of the Treaty and Acts of Union relating to the election of Scottish representative peers was no longer valid. They suggested that the Peerage Act 1963 required that Scottish and British peers be treated equally in regards to membership of the House of Lords. Since British hereditaries were losing their rights, Scottish hereditaries ought to have done so also.
Many disagreed that Parliament could modify the Treaty of Union by law. The argument against removing the right of Scottish hereditaries to continue electing representatives was that in 1707, when the Parliament of Scotland transferred its authority to the Parliament of Great Britain, it did so conditionally, and that one of the conditions was that Scottish peers be represented in the House of Lords. To remove such representation would be tantamount to violating one of the conditions for union, it was argued.
The Government countered that the Treaty and Acts of Union did leave themselves open for future change. It was argued that some portions of the Treaty were "entrenched," while others were not. For instance, Scotland and England were united "forever," the Scottish 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." However, it was suggested, the election of Scottish representative peers was not "entrenched," and therefore could be amended.
Another strong argument was that Parliament had the complete authority to amend the Treaty of Union. For example, the 1801 Act of Union, uniting Great Britain and Ireland, similarly provided that the two nations be united "forever". The Parliament, however, passed in 1922 an Act allowing most of Ireland to leave the United Kingdom. Thus, it was felt that Parliament is totally and absolutely sovereign and supreme, and that its enactments could never be ruled "unconstitutional." Thus, the Parliament did, under such an argument, retain the power to amend the Acts of Union as it saw fit.
The Committee reported to the House and dismissed the position that the House of Lords Bill would breach the Treaty of Union, and in 1999 Scotland ceased to retain the right to be represented by Scottish peers in the House of Lords.
Irish peers obtained the right to elect twenty-eight representatives upon the passage of the 1801 Act of Union, uniting Great Britain and Ireland into the United Kingdom of Great Britain and Ireland. Unlike Scottish representatives, Irish representative peers were chosen for life; further elections would only be held upon the death of a previously chosen member. The procedure for election was settled by an Act of the Irish Parliament passed just prior to Union. The Peers of Ireland were to assemble in the Irish House of Lords Chamber and to cast their votes, which were recorded by the Clerk of the Crown in Ireland. Thereafter, whenever a representative peer's seat fell vacant due to death or attainder, the Lord Chancellor of Great Britain was to certify the same to the Lord Chancellor of Ireland, who would then to direct the Clerk of the Crown in Ireland to send ballots to all peers of Ireland. The peers did not have to gather again in one location to cast their votes. Furthermore, the Irish representative peers, unlike Scottish ones, would be issued writs of summons at the commencement of each Parliament.
Ireland differed from Scotland in that it was entitled to representative Lords Spiritual as well. The Church of Scotland, being Presbyterian, did not have a strict hierarchy of bishops, as the Church of Ireland and Church of England did; only the clergymen of the latter two were summoned to Parliament. The Spiritual representatives were chosen by rotation; each clergyman would sit for one session, and the seat would pass to the next individual in the rotation. Four representative peers - the Archbishop and three Bishops - could sit at any one time. Amongst Archbishops, the Archbishop of Armagh was first in rotation, followed by the Archbishop of Dublin, the Archbishop of Cashel, and the Archbishop of Tuam. The Bishop of Meath was the first amongst Bishops, followed by the Bishop of Kildare, the Bishop of Derry, the Bishop of Raphoe, the Bishop of Limerick, Ardsert and Adgadoe, the Bishop of Dropmore, 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 Kilsenora, 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. But if a Spritual Lord were a member of the House of Lords already as a Temporal Lord (either by virtue of holding a British peerage, or by virtue of having previously been elected a representative peer), then his place in the rotation would be skipped.
In 1871, when the Church of Ireland was disestablished, the representative Lords Spiritual ceased to hold seats in the House of Lords.Cashel and Tuam had ceased to be archdioceses in the Church of Ireland some decades previously.
In 1922, most of Ireland left the United Kingdom to form the Irish Free State; what remained stayed on as Northern Ireland. The legislation establishing the Irish Free State and Northern Ireland made no mention of what would be done with the right of Irish peers to elect representatives. The legislation, however, did abolish the positions of Lord Chancellor of Ireland and Clerk of the Crown in Ireland; these officers were responsible for holding the elections of representative peers from Ireland. Thus, no further elections for Irish representative peers were held. Nonetheless, all peers who had already been elected continued to be summoned for the remainder of their lives, until the last surviving Irish representative peer, Francis Charles Adelbert Needham, 4th Earl of Kilmorey died in 1961.
After the Earl of Kilmorey died, 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, Randal John Somerland 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 properly abolished. The Lords sent the matter to their Committee on Privileges, which decided against the Irish peers. Lord Reid, a Law Lord, argued that the Irish representative peers were, under the Act of Union, entitled to a seat "on the part of Ireland." He suggested that, since Ireland ceased to exist as a political entity (having been divided into Northern Ireland and the Irish Free State, now known as the Republic of Ireland), the representative peers did not have anything to represent. Lord Reid wrote that "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."
Another Law Lord, Lord Wilberforce disagreed that "an Act of such constitutional significance as the Union with Ireland Act could be repealed by implication." However, he, too, found against the Irish peers. He instead concluded that the right of Irish peers to elect representatives had been ended because the Irish Free State (Agreement) Act 1921 had abolished the mechanism by which the Irish representative peers were to be elected by terminating the offices of Lord Chancellor of Ireland and Clerk of the Crown in Ireland.
One important point not brought up by the Irish peers was that Northern Ireland still remained a part of the United Kingdom, and that peers could be elected on its behalf. Lord Reid's objections would therefore be properly answered. Similarly, Lord Wilberforce's complaints relating to the removal of the mechanism for the election could be solved, as the Lord Chancellor of Ireland and the Clerk of the Crown in Ireland did have replacements in Northern Ireland. Burke's Peerage, Baronetage and Knightage, a reference work on the peerage and gentry, 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."
The House of Lords endorsed the decision of the Committee on Privileges in 1966. In order to prevent further appeals on the matter, the Parliament passed in 1971, as a part of the annual Statute Law Repeals Bill, a clause revoking the sections of the Act of Union relating to the election of Irish representative peers.
However, the matter did not there rest. In 1991, the solicitor Andrew Turek published an article in the Cambridge Law Journal, in which he declared that, if Lord Reid were correct in suggesting that Irish peers had no further right to elect peers because the political entity being represented (Ireland) no longer existed, then the right of representative peers ought to have ended in 1922, when the Irish Free State was formed. He suggested that there was no basis for calling representative peers who had already been elected to Parliament.
Then, Trek pointed out the principle of the creation of a peerage by writ. He argued that if an individual was not entitled to attend the House of Lords, but nonetheless received a writ of summons (as the remaining Irish representative peers did following the formation of the Irish Free State), then such individuals were automatically granted a new peerage. In fact, many ancient baronial titles were created not by letters patent, but rather by the simple summons of an individual and his heirs to Parliament.
In 1995, Arthur Kenlis Maxwell, 12th Baron Farnham applied for a writ of summons because his grandfather, the 11th Baron and a representative peer, had been summoned by writ when there was no basis for doing so, and that therefore a new barony was created for him.
Burke's Peerage suggests, "The idea that a person who receives a writ of summons to the House of Lords as a result of a mistake should ipso facto be created a hereditary peer is repugnant to common sense." Other authorities, however, disagree. Before the House of Lords Privileges Committee in 1999, when the effect of the House of Lords Bill on writs of summons already issued was being discussed, lawyers proposed that the writ of summons "is so powerful that, if a person not already a peer ... receives and sits in response to a writ, he becomes a peer ipso facto even perhaps if the writ was issued in error."
The creation of a barony "by mistake", does have precedent. In 1594, Ferdinando Stanley, 5th Earl of Derby, died, leaving three daughters. His brother William inherited his earldom, which could only pass to heirs-male, but his baronial titles, Baron Strange of Knokyn, Baron Mohun of Dunster and Baron Stanley, which could pass to females as well as males, fell into abeyance between the late Earl's three daughters. However, William incorrectly assumed the title of Baron Strange of Knokyn. In 1628, William's eldest son James was summoned to the House of Lords as Baron Strange by a writ of acceleration (a device used to summon the eldest son of a peer during his father's lifetime without creating a new peerage). Later, however, when the mistake was discovered, it was deemed that the title of Baron Strange of Knokyn was indeed a legitimate one. Several individuals have sat by virtue of holding this barony created in error.
The Lords, however, held that there was, in the first place, no error in issuing writs to the Irish representative peers after the formation of the Irish Free State. Lords on the Privileges Committee agreed with the Attorney-General that the Irish peers had been elected for life, and that the formation of the Irish Free State only implicitly repealed the right of the Irish peers to hold further elections.
Ireland
The Irish House of Lords Chamber
The location of the first election of Irish representative peers.References
