Representative Peer - Scotland

Scotland

See also List of Scottish representative peers

Under the Act of Union of 1707, the peers of Scotland were entitled to elect sixteen representative peers to the House of Lords. Each representative served for the duration of one Parliament, or 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 Scottish monarchs, from Fergus Mór to Charles II. The Lord Clerk Register would read aloud the Peerage Roll, and each 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 left 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; however, 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 remained unclear during most of the eighteenth century. In 1711, James Douglas, 4th Duke of Hamilton, a peer of Scotland, was made 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 Scots peers 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 being of full age.

Under the Peerage Act 1963, all Scottish peers procured the right to sit in the House of Lords, and the system of electing representative peers was abolished. 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. During the debate on the House of Lords Bill, a question arose as to whether 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 the House of Lords Bill did not seek to do.

Counsel for the Government held a different view. 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, or 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, making it "fundamental or unalterable in all time coming".

Further, the Government pointed out 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, 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 1999, hereditary peers have not had the automatic right to sit in Parliament.