Representative peer
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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.
Under the Act of Union of 1707, Scottish peers could elect sixteen representative peers, elections being held each time a new Parliament was summoned. Each time a new Parliament was summoned, the Sovereign issued a proclamation summoning all Scottish peers to the Palace of Hoolyroodhouse. The Lord Clerk Register or two Clerks of the Court of Session then read out the Roll of the Peerage of Scotland, and each peer indicated his presence when his title was called aloud. The roll was then read again, ane each peer read aloud the names of the sixteen peers for whom he voted. The Lord Clerk Register or Clerks of the Court of Session then tallied the votes and announced the results. The return made by the Clerk Register or Clerks was evidence to admit the representative peer to the House of Lords; no writ of summons was issued. Strangely, peers were not required to present evidence that they were qualified to vote. Instead, if an unqualified person claiming to be a peer cast a vote, the entire election would have to be challenged in the House of Lords, which would resolve the matter.
In 1719, the House of Lords decided The Duke of Queensberry's Case, in which it ruled that Scottish peers who were also peers of Great Britain were not entitled to a seat in the House of Lords unless elected representative peers. In 1782, however, that decision was reversed in The Duke of Brandon's Case. Then, in 1963, all peers of Scotland, and not just representative peers, were given the right to serve in the House of Lords. When the House of Lords Bill, which would deprive hereditary peers of the automatic right to sit in the House, the question as to whether such a bill would violate the Act of Union arose. The House of Lords referred the matter to their Committee on Privileges, which reported 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and that the portions of the Treaty and Acts of Union relating to the election of Scottish representative peers were no longer valid. They declared 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.
Several peers 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 had the right to impose conditions, and that one of the conditions was that Scottish peers be represented in the House of Lords. It was suggested that removing Scottish peers from the House of Lords would contravene the Scottish Parliament's conditions. The Government disagreed, arguing 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. A more far-reaching argument was that Parliament was Sovereign and therefore could amend the Treaty of Union if it pleased. For instance, 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.
Under the Act of Union of 1801, Ireland could elect twenty-eight representative peers, who served for life. The first election was held in the Chamber of the Irish House of Lords. Each peer had to either attend the chamber or send a proxy voter. The Roll of the peers was called, and when a particular peer was named, his written ballot was given to the Clerk of the Crown in Ireland, who read the list aloud. The Clerk of the Crown was then responsible for announcing the results. Thereafter, whenever there was a vacancy due to the death or attainder of a peer, the Lord Chancellor of Great Britain sent a certificate to the same effect to the Lord Chancellor of Ireland. The Irish Chancellor then directed the Clerk of the Crown to issue ballots to each Irish peer. In Ireland, the Chancellor determined the qualifications of the voters, but his decisions could be challenged before the House of Lords.
Ireland was also entitled to four spiritual representative peers. Irish Lords Spiritual sat for a term of one session, and the seat then passed to the next bishops in rotation. Also, if a spiritual peer of Ireland was elected a representative peer or became a peer of England, Great Britain or the United Kingdom, the next bishop in the rotation would become a member of Parliament. At any one time, one Archbishop and three Bishops sat in the House. Among Archbishops the order was: the Archbishop of Armagh, the Archbishop of Dublin, the Archbishop of Cashel and the Archbishop of Tuam. Among Bishops, the order 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. In 1833, under the Church Temporalities Act, ten sees were suppressed and merged with neighbouring dioceses; Tuam and Cashel were also degraded from archbishoprics to bishoprics.
When the Church of Ireland was disestablished in 1867, Ireland ceased to be represented by spiritual peers. 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, the 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 Lords sent the matter to their Committee on Privileges, which decided against the Irish peers. The 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. The 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, the 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. The Lord Reid's objections would therefore be properly answered. Similarly, the 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 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 end there. In 1991, a solicitor named Andrew Turek published an article in the Cambridge Law Journal. He suggested that, if the Lord Reid was indeed accurate 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, Turek 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 1995, Barry Owen Somerset 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, however. 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 new title of Baron Strange 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. 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.Scottish Representative Peers
The Palace of Holyroodhouse
The location of the elections of Scottish representative peers.Irish Representative Peers
The Irish House of Lords Chamber
The location of the first election of Irish representative peers.