Parliament and the Peerage
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Now, hereditary peers no longer have automatic seats in the Lords, though life peers do. On the other hand, hereditary peers are no longer excluded from the House of Commons.
Membership of the House of Lords
Historically, all English and British hereditary peers, subject to qualifications such as age and citizenship, were eligible to sit in the House of Lords. In the nineteenth century, the House of Lords ruled that life peers were not entitled, by virtue of their peerages, to sit in the House. The Appellate Jurisdiction Act of 1876 authorised the appointment of Lords of Appeal in Ordinary, who were to sit until they retired from judicial office, but from 1887, they were permitted to continue in the House for life. The regular creation of life peerage dignities with seats in the House of Lords began after the passage of the Life Peerages Act of 1958. With the House of Lords Act 1999, most hereditary peers were excluded from the House of Lords. The Lord Great Chamberlain or a Deputy exercising that office, the Earl Marshal and ninety hereditary peers elected by the House or by other hereditary peers were permitted to remain in the House on an interim basis.
Peeresses
Since the earliest times, women have been qualified to hold peerage dignities. While dignities created by writs of summons may always pass to women, dignities created by letters patent do so very rarely, the titles normally passing to male heirs only. Until the twentieth century, peeresses, though they held peerages suo jure, were unable to sit in the House of Lords. The Sex Disqualification Removal Act 1919 provided that "A person shall not be disqualified by sex or marriage from the exercise of any public function." The House of Lords nonetheless affirmed the disqualification of women in The Viscountess Rhondda's Claim, decided in 1922. They ruled that the composition of the House could be altered only by clear words, and not by vague and general ones as those contained in the Act.
Women first entered the House of Lords after the passage of the Life Peerages Act 1958. Under that act, life peeresses were allowed, along with life peers, to sit in the House of Lords. Hereditary peeresses were admitted under the Peerage Act 1963. Because of the (slightly modified) rules of male primogeniture governing the succession of peerages created by writ, and because most peerages created by letters patent do not descend to females, the number of hereditary peeresses is very low. At the conclusion of the 1998–1999 session of the House of Lords, immediately before the House of Lords Act 1999 took effect and abolished the automatic right of hereditary peers to sit in the House of Lords, there were seven hundred and fifty-nine individuals sitting in the House by virtue of hereditary peerages, of whom only seventeen were women.
Roman Catholic peers
Roman Catholic peers, along with commoners of the same religion, were subject to several political disabilities. The disabilities arose not by virtue of a direct prohibition on Roman Catholics in public service, but rather because public officials were required to take certain oaths and make declarations which were offensive to the Catholic faith. Peers were required to take such oaths and make such declarations before sitting in the House of Lords, voting in elections of representative peers and sitting on juries trying other peers for felonies. The removal of these disabilities occurred when the Roman Catholic Emancipation Act of 1829 permitted the taking of an alternative oath.
The Church in England originally accepted the authority of the Pope in Rome. After Pope Clement VII refused to annul Henry VIII's marriage to Catherine of Aragon, the right to appeal the decision of the English clergy in Rome was abolished by Parliament. Thomas Cranmer, the Archbishop of Canterbury, granted the annulment, prompting the excommunication of the King, whom the Act of Supremacy of 1536 declared Supreme Head of the Church. Henry VIII's daughter, Mary I, was a staunch Catholic, but her successor, Elizabeth I, returned England to Protestantism. In 1559, a new Act of Supremacy provided for an "oath of Supremacy," which denied the ecclesiastical jurisdiction of the Pope in England. The oath, however, was not originally applied to peers. Thus, Roman Catholic peers were allowed to remain in the House of Lords, until the oath became required of them in the seventeenth century.
The position of Roman Catholic peers, however, came into question during the reign of Charles II. Titus Oates, a corrupt clergyman, falsely claimed that there was a Popish Plot to murder Charles and allow the King's Catholic brother, James, Duke of York, to succeed to the throne. An Act of Parliament of 1678 provided that Roman Catholic peers would cease to fulfill the traditional rôle of peers as hereditary counsellors of the Sovereign. The same Act required that, before sitting in the House of Lords, peers make a declaration against transubstantiation, viz.:
I, AB, profess, testify, and declare, that I do believe that in the Sacrament of the Lord's Supper there is not any Transubstantiation of the elements of bread and wine into the Body and Blood of Christ at or after the consecration thereof by any person whatsoever: and that the invocation or adoration of the Virgin Mary or any other Saint, and the Sacrifice of the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous...
The oaths of supremacy and allegiance were also imposed on peers. Since the oaths and the declaration against transubstantiation forced Catholic peers to deny fundamental tenets of their faith, they were unable to take them, and therefore unable to enter the House of Lords.
In the nineteenth century, it was deemed desirable to remove the disabilities that Roman Catholic peers had suffered for several years. In 1791, an Act of Parliament restored to Catholic peers the privilege of advising the Sovereign. In 1821, Catholic peers took part in a coronation for the first time since the Glorious Revolution. The next year, George Canning introduced a bill to permit Catholic peers to sit in the House of Lords. The House of Commons agreed, by a margin of twelve votes, to give the bill a second reading; the remaining stages were taken without opposition. The House of Lords, however, rejected the bill by a margin of forty-two votes at the second reading stage.
In 1824, a minor but symbolically important gesture was made when Parliament allowed the Duke of Norfolk to exercise the hereditary office of Earl Marshal without taking the oath of supremacy or making the declaration against transubstantiation. Prior to 1824, Catholic Dukes of Norfolk, who did not take the oath or make the declaration, were required to appoint Protestant Deputies to exercise the office. Now, however, the Premier Peer of England obtained the right to perform the ceremonial functions of the office without denying his faith.
In 1829, Arthur Wellesley, 1st Duke of Wellington sought to introduce a bill to allow Roman Catholics to take an alternative oath. The bill passed by large majorities in both Houses and became law as the Catholic Relief Act 1829. Soon, Catholic peers, who were very few in number, came to sit in the House of Lords for the first time in over one and a half centuries. In Scotland and Ireland, Catholic peers were permitted to vote in elections for representative peers. The declaration against transubstantiation, which was still taken by Protestant peers, was itself replaced in 1867, though the Sovereign remained bound to take it until 1910.
Modern Qualifications
Peers may not take their seats in the House of Lords until a writ of summons has been issued by the Sovereign through the Clerk of the Crown in Chancery. To receive the writ, a peer must apply to the Lord Chancellor, who rules on the eligibility of the peer. If there is any dispute as to the qualification of the peer (or, when hereditary peers automatically sat in the House of Lords, any dispute as to the succession of the peerage dignity), the peer must petition the Crown for a grant of the writ; the petition is then decided on the basis of a report of the House of Lords Committee for Privileges. The Sovereign may not deny a writ of summons to a peer who has been ruled eligible to receive one.
Peers under the age of twenty-one, under a Standing Order of the House of Lords passed in 1685, may not sit in the House of Lords. Bankrupt peers became ineligible to sit in the House of Lords under the Bankruptcy Disqualification Act 1871. From 1986 until 2004, disqualification from the House of Lords was covered by the Insolvency Act. Under that act, a peer adjudged bankrupt in England, Wales or Northern Ireland, or a peer whose estate was sequestered in Scotland became ineligible to receive a writ of summons and sit in the House of Lords. The disqualification ceased upon the discharge of the bankrupt peer or upon the annulment of the bankruptcy adjudication. The rules relating to bankruptcies in England and Wales were amended by Enterprise Act 2002, the relevant provisions of which came into effect in 2004. Under that Act, a peer adjudged bankrupt in England and Wales may sit in the House of Lords unless a court-imposed Bankruptcy Restrictions Order is in effect. If the peer was adjuged bankrupt in Northern Ireland or if his estate was sequestered in Scotland, however, he remains disqualified until he is discharged, without regard to Bankruptcy Restriction Orders.
Under the Act of Settlement 1701, "No person born out of the Kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging except such as are born of English parents" may be a member of the House of Lords. The said Act has since been amended; the British Nationality Act 1981 permits citizens of the United Kingdom, of a British overseas territory, of a commonwealth realm, of an independent Commonwealth nation or of the Republic of Ireland to sit in the House of Lords.
Formerly, peers who committed treason lost not only their seats in the House of Lords, but also their peerage dignities: their blood, and the blood of their descendants, was deemed "corrupted," thereby preventing the inheritance of the title. The Forefiture Act 1870 abolished corruption of blood, but it provided that a peer convicted of treason may not receive a writ of summons until his term of imprisonment concludes or until he receives a pardon. Theoretically, peers who are imprisoned for other offences remain eligible to receive writs of summons, but, of course, are unable to attend while detained.
The present government has said that it wishes to extend the disqualification of individuals with criminal convictions, whether for treason or otherwise, in the House of Commons to members of the House of Lords—this measure is thought to be mainly aimed at the Lord Archer of Weston-super-Mare, who would be eligible to return to the House of Lords after serving his term for perjury and perversion of justice.
Elected Peers
During most the history of the House of Lords, peers sat by hereditary right, and not by election. When England united with Scotland in 1707, however, it was deemed necessary that Scottish peers elect a limited number of themselves to sit in the House of Lords because Scotland had approximately the same number of peers as England despite having a much lower population. After the Union of 1801, Irish peers also began to elect representative peers, but ceased to do so after the creation of the Irish Free State in 1922. Scottish peers also ceased electing representatives after all of them obtained the right to sit in the House of Lords under the Peerage Act of 1963. Elections for peers were resumed by the House of Lords Act 1999, under which ninety hereditary peers are elected by their counterparts to serve in the House of Lords.
Scottish Representative Peers
Under the Act of Union of 1707, peers of Scotland were entitled to elect sixteen representative peers for a term of one Parliament. Upon the summons of a new Parliament following the dissolution of a previous one, and whenever a vacancy occurred during a Parliament, the Sovereign issued 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 one hundred and ten portraits of real and legendary Scottish monarchs, from Fergus I to Charles II. The Lord Clerk Register read aloud the Roll bearing the names of the various peerage dignities in the Peerage of Scotland; each time a peerage dignity was called, that dignity's holder would indicate his presence (peers holding multiple dignities would have to indicate their presence more than once). The Roll was then re-read, with each peer then publicly declaring the names of the peers for whom votes were cast when the Lord Clerk Register reached his name; this time, however, each peer responded only once, even if he held multiple peerage dignities. Rather oddly, peers were not compelled to present evidence of qualification to vote to the Lord Clerk Register. The Lord Clerk Register was responsible for ruling on the validity of any vote. In the event of a dispute, the election would have to be challenged in the House of Lords.
Upon assembling, the Scottish peers were only to vote; a peer discussing other matters would technically be guilty of praemunire, though that offence has long been obsolete. The block voting system was used, with each peer casting as many votes as there were seats to be filled: sixteen prior to the summoning of a new Parliament, and fewer when vacancies were to be filled during a Parliament. 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 tallied the votes and announced the results, with the return made by them sufficing as evidence, in the place of a writ of summons to admit the Scottish peers to the House of Lords.
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, however, he was denied admittance, the Lords ruling that a peer of Scotland could not sit in the House of Lords unless a representative peer, even if a British peerage were held by the individual. In 1782, however, the House of Lords reversed the decision, permitting Scottish peers who also held British peerages to sit in the House of Lords.
A lack of clarity also existed as to whether or not a vacancy was created when a Scottish representative peer became the holder of a peerage dignity of Great Britain. In 1736, when James Murray, 2nd Duke of Atholl, a Scottish representative peer, inherited the English Barony of Strange, he continued to sit in the House of Lords without question. This seemed permissible, however, since under the decision of 1711, he would not have a seat in the House by virtue of his British title. In 1787, however, following the reversal of the aforesaid decision of 1711, two representative peers—William Douglas, 5th Duke of Queensberry and James Hamilton, 8th Earl of Abercorn—were granted peerage dignities in the Peerage of Great Britain—Baron Douglas and Viscount Hamilton, respectively. The House of Lords resolved that they had ceased to sit as representative peers, and were instead members sitting by hereditary right. This precedent, however, did not remain in effect for long. The consistent practice that was later well-established was that Scottish representative peers raised to the British Peerage would continue to sit as representatives for the remainder of the term.
Under the Peerage Act 1963, all Scottish peers procured the right to sit in the House of Lords, ending elections for 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 then called the Roll of peers; each peer then gave his ballot to the Clerk of the Crown, who read it aloud and announced the results. Thereafter, whenever a vacancy occurred due to the death or attainder of a peer, the Lord Chancellor of Great Britain transmitted a certification of the same to the Lord Chancellor of Ireland, who then directed the Clerk of the Crown to issue ballots to the various peers. The Lord Chancellor of Ireland ruled on the qualifications of the voting peers, though his decisions could be challenged in the House of Lords. Peers returned the ballots, together with certificates stating that they had taken the necessary oaths (vide infra) before casting the ballot, with one copy of each ballot going to the Clerk of the Crown of Ireland, and another to the Clerk of the Parliaments. As in Scotland, a single party was often capable of dominating parliamentary representation by electing one of its members at each election.
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 temporal peers 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 Church Temporalities Act of 1833 suppressed ten sees and merged them with neighbouring dioceses, and also degraded the archbishoprics of Tuam and Cashel to bishoprics.
Following its disestablishment in 1867, 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 Lords rejected the petition (see Peerage law).
See Also: List of Irish representative peers.
Prior to the granting of Royal Assent, the Lords had adopted a Standing Order making provision for the election of peers. The Order provided that there be elected two peers by the Labour peers, three peers by the Liberal Democrat peers, twenty-eight Cross-bench peers, forty-two Conservative peers and fifteen peers, to serve as Deputy Speakers and in other offices, by the entire House of Lords. The elections for officers of the House were held on the twenty-seventh and twenty-eighth of October, while those for peers elected by party were held on the third and fourth of November; the results were proclaimed to the House on the fifth of November. The initial electoral system was a version of block voting. Voters were required to rank in order of preference, on a ballot prepared by the Clerk of the Parliaments, as many candidates as there were places to be filled. The candidates receiving the greatest number of votes (without regard to the ranking on the ballots) were declared elected. Only if there were ties would the ranking be examined. Thereafter, until November 2002, if a vacancy occurred, the next-highest vote-getter (the rankings being examined, again, only in the case of ties) in the original election would fill the seat.
Since November 2002, by-elections have been held to fill vacancies. Voting is by preferential voting, with peers ranking the candidates in order of preference, in enable an instant runoff. As many or as few preferences as desired may be indicated. To win the election, a peer must receive a majority of first preference votes. If no candidate receives such a majority, the candidate with the fewest number of first preference votes is eliminated, with each of his votes being redistributed according to the second preference marked on the ballot. The process is continued until one candidate receives a majority. Two by-elections have been held, both in 2003.
Prior to 1999, hereditary peers were generally ineligible to sit in the House of Commons. Under the Act of Union 1707, Scottish peers, even if they were not representative peers, could not sit in the House of Commons. Under the Act of Union 1801, however, Irish peers were allowed to sit in the House of Commons provided they renounced the privileges associated with the privilege, such as a right to a trial in the House of Lords rather than by a jury of commoners. In 1648, during the Commonwealth and Protectorate established following the English Civil War, the House of Lords was abolished and hereditary peers allowed to sit in the House of Commons; after the Restoration of the Monarchy, however, the House of Lords returned. Now, hereditary peers again have the right to sit in the House of Commons, unless they have been elected by other hereditary peers to sit in the House of Lords.
The smaller boroughs were often "in the pocket" of local landowners. The landowners' nominees were normally elected to the House of Commons, voting according to the commands of their patrons. Most of the patrons were peers, who exerted a very significant influence in the lower house. It is said that, amongst the six hundred and fifty-eight members of the House of Commons of 1816, three hundred were chosen by peers: in England, two hundred and eighteen chosen by sixteen peers, in Scotland, thirty-one chosen by twenty-one peers, and in Ireland, fifty-one chosen by thirty-six peers. Certain peers were able to choose many members of the House of Commons, leading Sydney Smith to write in 1821, "The country belongs to the Duke of Rutland, Lord Lonsdale, the Duke of Newcastle, and about twenty other holders of boroughs. They are our masters."
The influence of peers in the House of Commons was somewhat reduced by the Reform Act of 1832. Though the Act abolished the worst of the rotten boroughs and expanded the franchise, peers continued to own "pocket boroughs," which were got rid of only by reforms passed during the second half of the nineteenth century.
Irish Representative Peers
House of Lords Act 1999
The House of Lords Act 1999 provides firstly that "No-one shall be a member of the House of Lords by virtue of a hereditary peerage." (The Act treats the Principality of Wales and the Earldom of Chester as hereditary peerages, though those titles, granted normally to the heir-apparent, are never inherited.) The Act then provides that ninety-two peers, including the Earl Marshal, the Lord Great Chamberlain and ninety other peers elected in accordance with the Standing Orders of the House would be excepted from the exclusion of hereditary peers, and that after the first session of the next Parliament, whenever one of these seats fell vacant, the Lords would have to proceed to a by-election.House of Commons
The historical exclusion of peers from the House of Commons arose from the principles underlying the division of the Parliament into three parts—the Crown, the House of Lords and the House of Commons—that were supposed to be independent of each other. No person represented in one body was supposed to be represented in any other; thus, neither the Sovereign nor the peers voted in elections for the House of Commons. During the Interregnum of the seventeenth century, the House of Lords being abolished, peers were allowed to sit in the House of Commons. After the House of Lords was reinstated in 1660, however, peers returned to the former position of being barred from the House of Lords. In 1963, the Peerage Act permitted peers to disclaim hereditary dignities; Sir Alec Douglas-Home, 14th Earl of Home, availed himself of this right so as to be able to serve as Prime Minister from the House of Commons, rather than from the House of Lords. In 1999, the House of Lords Act allowed hereditary peers who were not members of the House of Lords to be elected to the House of Commons; the same right, however, does not extend to life peers.Scottish and Irish peers
After the Union between England and Scotland in 1707, Scottish peers who did not sit as representative peers were barred from the House of Commons. Following the Union with Ireland in 1801, however, Irish peers who were not elected representative peers were allowed to serve in the House of Commons from a constituency in Great Britain—but not a constituency in Ireland—provided that they gave up, for the duration of their service in the House of Commons, the privilege of Peerage and the right to vote in elections of representative peers. In a letter to the Earl of Listowel, who was an Irish peer in the House of Commons, the writer suggested, "True, you are at this moment a legislator, but by no right of birth, and only as a commoner; and, again, as representative for an English town, not for one in Ireland. However great your stake in that country, you could not, though fifty places were held open for you, accept one; your marrowless dignity gliding ghost-like in, to forbid the proffered seat." The Peerage Act 1963 allowed Irish peers to and sit in the House of Commons from any constituency without forcing them to give up any rights.Influence of peers
Though excluded from the House of Commons, peers often exercised much influence in that body. In many cases, peers were able to nominate candidates—often their sons—who were elected without serious opposition. Peers, as well as other important landowners, procured this power due to the nature of the constituencies choosing members of the House of Commons. Constituencies were either counties or boroughs; their boundaries were not readjusted to ensure that their populations were roughly the same. While large cities like Leeds and Manchester were entirely unrepresented, the smallest boroughs remained entitled to send representatives to Parliament. The most famous of "rotten" boroughs, as they were known, is probably Old Sarum, which in 1831 had only seven voters. References