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In the event that Scotland votes for independence in a referendum, what will happen to Scottish representatives at Westminster?

When Montenegro declared independence 13 days after its 2006 referendum, the Serbia-Montenegro joint parliament consisted only on members appointed by the two constituent parliaments, and could simply be dissolved. In 2011, the Southern Sudanese were (rightly) annoyed when their members of the Sudanese parliament were sent packing before the formal declaration of independence after the January referendum but before independence was declared on 9 July. At the other extreme, the MPs elected to the Indonesian parliament to represent East Timor in 1999 kept their seats, despite grumbling, until the 2004 election, although East Timor had become independent in 2002 and their constituency was therefore no longer part of the coutry.

If the Scottish referendum takes place in late 2014, it is entirely possible that subsequent negotiations will take so long that the results may not be implemented until after the next Westminster general election, which is due in May 2015 (and might in any case happen earlier). If Scottish independence is in fact a done deal by then, it would be sensible simply not to hold the 2015 Westminster election in Scotland and instead to prolong the mandates of Scottish MPs until independence day, at which point they would go home. But if the next Westminster election happens before the Scottish referendum, or if there are other unforeseen complications, Scottish MPs could sit at Westminster for years after their constituencies have left the UK.

UK constitutional precedent is certainly in that direction. In the 1918 election, Sinn Fein won 70 of the 75 seats in the twenty-six counties of Ireland which became independent in 1922, the old Nationalist Party won two and Unionists three. The latter five took their seats in the House of Commons, and continued to speak and vote at Westminster until the November 1922 election. Although this was before the formal enactment of Irish independence in December 1922, it was after the assumption of power by the Provisional Government in January, and so the five were representing territory in the UK parliament that was no longer under UK control. If the November 1922 election had been delayed until 1923, they would have continued to sit, like the four East Timorese in the Indonesian parliament, representing constituencies which were no longer legally part of the country.

As for the House of Lords: from 1801 to 1922, peers who held Irish titles elected 28 of their number to serve as Irish Representative Peers at Westminster. The last of these elections was in 1919 when Lord Roden was elected to replace Lord Langford. Ove the following decades the last twenty-eight peers continued to sit in the House of Lords but were not replaced as they died, starting with Lord Curzon in 1925 and ending in 1961 with Lord Kilmorey (whose title, but not his seat, was eventually inherited by Richard Needham who served as a junior minister in Northern Ireland for years). The second last survivor, the Earl of Drogheda, was chairing meetings in the House of Lords until a few days before his death in November 1957, almost 35 years after the southern Irish MPs had left the Commons. (Lord Kilmorey does not appear to have ever spoken in the House of Lords as far as I can tell.)

Scotland's relationship with the House of Lords has changed over the centuries. From 1707 to 1963, Scottish peers convened after every general election to elect sixteen of their number as representative peers in Westminster. From 1963 to 1999, all Scottish peers were entitled to sit in the House of Lords (there are currently 42 of them who do not also hold an English, Great Britain or UK title), and since 1999 they have been eligible for membership like the other hereditary peers.

These days, the House of Lords has become a very peculiar animal. Under the government's current proposals, Scotland would elect seven or eight members of the new House of Lords every five years for fifteen-year terms, and a number of the appointed members would presumably also be Scottish. Since the entire process is going to consist largely of transitional arrangements for the first decade of its operation, I suppose it doesn't tax the imagination too much to find transitional arrangements for Scotland where the Scottish members of the new body are pensioned off after independence day.

But it's much more likely, in my view, that Scottish independence will succeed and the current House of Lords reforms will fail, leaving the UK in the same position it was in in 1922, with a rhetorical commitment to reforming the upper house which has not been implemented and a radically changed constitutional position. I think that Scottish title-holders make up a bit under 10% of the current House of Lords - 9 of the surviving 92 hereditaries (the Countess of Mar, the Earl of Erroll, the Earl of Caithness, the Earl of Lindsay, the Earl of Northesk, the Earl of Dundee, Viscount Falkland, Lady Saltoun, and Lord Reay) have Scottish titles only, though of the life peers whose titles have a Scottish element the proportion may be fewer - only five of the 120 life peers created since the last election have Scottish-based titles (John McFall, Tommy McAvoy, Jack McConnell, Des Browne, and Michael Ancram who holds a whole clutch of titles including Marquess of Lothian), but I also count 3 of Gordon Brown's 34, and 7 of the 77 of Blair's last term (and can't really be bothered to count earlier creations).

Scots in the House of Lords could reasonably cite the precedent of the Earl of Drogheda to argue that they should be allowed to remain in place on the same terms as the other peers, until they gradually die off. I dunno though; that's quite a large chunk of the Upper House whose allegiance nominally would lie in another country. Perhaps, if the current House of Lords reforms fail (as I think they deserve to) and Scottish independence succeeds, it will kickstart a process to find a better upper house for England, Wales and Northern Ireland, which in my view would be a much smaller body of long-term appointed members, with a clear mandate for revision and scrutiny. That is, if such a body is needed at all; I note that there has been no talk of an independent Scotland adopting a bicameral system.

(Incidentally, if you don't already know, you probably will not guess which British-ruled island territory was offered full integration into the UK in 1955, with seats in the House of Commons and all the trimmings, an arrangement which did not get sufficient support in the 1956 referendum to be implemented.)


( 15 comments — Leave a comment )
Feb. 26th, 2012 12:20 pm (UTC)
The most extreme example would surely by Taiwan, whose parliament still had members for mainland constituencies until 1991.
Feb. 26th, 2012 06:46 pm (UTC)
Scottish Independence is a formal repeal of the 1707 Act of Union.
Unless the act makes other provision (which, to be fair, it probably will), the pre-1707 Scottish House of Lords thus comes back into being.
Members of the Scottish Peerage pre-1707 are clearly members of this body.
Members of the UK peerage whose titles are Scottish-based (whether hereditary or life) are in a more anomalous position, but are arguably also members.
Of course, even if the UK legislation is sloppy enough to let this happen, it's likely that a newly independent Scottish Parliament will want to abolish the Scottish House of Lords fairly pronto, and replace it with either an elected Scottish Senate, or a unicameral parliament.
Chris Young
Feb. 27th, 2012 02:07 pm (UTC)
I find it hard to imagine that even under the present government the legislation would be so sloppy that it didn't provide for a Scottish government the Scottish people would understand rather than that which might have been preferred by James VIII.

But the question of whether Scottish MPs withdraw or are expelled from Westminster before the next UK election is complicated by the point that if they do/are, the Tories will then have an absolute majority in the rump Union. The Lib Dems might not wish to see this happen.
Feb. 27th, 2012 02:11 pm (UTC)
7th May 2015 isn't that long after October 2014. And it will take time to separate things out - it won't be instantaneous. I can see them wanting to rush things through in time for the May elections.
Feb. 27th, 2012 08:43 pm (UTC)
I find it hard to imagine that even under the present government the legislation would be so sloppy that it didn't provide for a Scottish government the Scottish people would understand rather than that which might have been preferred by James VIII.

Probably true, although officials are not infallible in this regard. I remember reading about a proposed regulation during World War II that would have made it illegal to produce any sound "transmissible by wireless" without authority. This was quietly shelved when the Parliamentary Draftsman pointed out that this was going to make it "rather a quiet war..." (Hint: they probably meant "transmitted" rather than "transmissible"...)
Feb. 29th, 2012 12:58 pm (UTC)
Given that there have been some important changes in United Kingdom constitutional law since 1707, most notably the revival of a Scottish parliament in the form of a single-chambered body, I think that unlikely.
Mar. 1st, 2012 05:08 pm (UTC)
It's interesting to note that everyone's assuming that the new, independent, Scottish Parliament would be a unicameral body. This contrasts with early 20th century practice, where new legislatures were being set up as bicameral (see here and here), along the Westminster model.
Mar. 1st, 2012 05:37 pm (UTC)
What would the second chamber represent?
Mar. 1st, 2012 08:24 pm (UTC)
Since I seem to be the only one in favour of a revived Scottish House of Lords {grin}, I would suggest representing the Scottish local authorities, in a similar way to the U.S. Senate represents the States, or the German German Bundesrat represents the Lander.

To me, the importance of a second chamber is not so much what it represents (although it needs in some way to be different from the primary chamber), but its existence as a counter-weight to the primary chamber. George Washington is said to have told Jefferson that the framers had created the Senate to "cool" House legislation, "just as a saucer was used to cool hot tea."
Mar. 1st, 2012 08:53 pm (UTC)
It still has to perform a representation function. Typically, that's to represent states, regions, or provinces. In some cases, as in the Commonwealth Caribbean, it functions as a constitutional blocker; in such a case,though, the upper chamber is unelected, and the structure is highy asymmetric.
Mar. 1st, 2012 10:18 pm (UTC)
Yes, neither of those was exactly a howling success - one abolished after a few meetings, the other achieving nothing in fifty years of existence!
Mar. 2nd, 2012 07:33 am (UTC)
I think it would be a smidge revisionist to blame the Southern Ireland Senate for the demise of the Southern Ireland parliamentary system - I think the Sinn Fein boycott was rather more significant!

As for the Northern Ireland Senate, this just shows the need for the second chamber to have a different basis of representation than the primary chamber, if it is to act as an effective check.

In effect, I guess I have the same attitude towards democracy as I do to chocolate fudge cake - it is a wonderful thing. But there's still such a thing as TOO MUCH.
Mar. 2nd, 2012 08:44 am (UTC)
Agree entirely on your last point. On the first point, the Senate isn't irrelevant - it was set up as an attempt to balance minority rights within a devolved setting by introducing bicameralism, and while the Senate as such wasn't the killer problem with the settlement, it certainly was one of the elements of the failure.
Mar. 2nd, 2012 03:19 pm (UTC)
Um, this is clearly an area where your knowledge is clearly ahead of mine, since much of what little I know of this came from your webpages in the first place. But are you really saying that Dev & W.T. Cosgrave would have shaken hands & made up if only the British hadn't insisted on Appointment by the Lord Lieutenant?
Mar. 1st, 2012 04:18 pm (UTC)
This makes the monstrosity of Czech Senate pop up from memory - the immediate purpose of this bizzare creature seemingly was to accomodate former members of Czecho-Slovak upper chamber... although in practice it failed to achieve even that
( 15 comments — Leave a comment )

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