BORIS Johnson sparked a mini constitutional crisis when he sought to use his resignation honours list to award peerages to sitting MPs such as Scottish Secretary Alister Jack and former culture secretary Nadine Dorries.
UK law – as Johnson well knew – does not allow an elected member of the House of Commons to concurrently sit in the unelected upper House of Lords.
Questions swirled over whether the peerage nominations would be withdrawn, deferred, or blocked altogether by Rishi Sunak, fearing the electoral test of by-elections in constituencies held by members of his Cabinet.
But if the politicians nominated for peerages by the disgraced former prime minister had instead held seats in the devolved parliaments, there would have been no issue.
Members of the House of Lords can – and currently do – hold seats in the devolved parliaments of both Scotland and Wales.
Scottish Labour’s Katy Clark, a former MP, became “Baroness Clark of Kilwinning” in September 2020, less than one year before she was elected as an MSP on the West Scotland list.
And in Wales, her Labour colleague Eluned Morgan (above) currently serves as the country’s health secretary. She joined the Lords as “Baroness Morgan of Ely” in 2011, being first elected to the Senedd in 2016.
In the past, both of Scotland’s other main Unionist parties have also stood members of the House of Lords for election to the devolved parliaments.
In the first ever Holyrood elections in 1999, the LibDems’ David Steel (termed “Baron Steel of Aikwood”) won a seat, as did the Tories’ James Douglas-Hamilton (“Baron Selkirk of Douglas”). Both men had taken life peerages in the House of Lords two years’ prior.
Tommy Sheppard, the SNP MP for Edinburgh East and his party’s constitution spokesperson, told The National that the fact that members of the Lords could stand for election to devolved parliaments was a “stain on our democracy”.
Sheppard (below) said: “Scots are right to feel affronted by this constitutional loophole. Its very existence is a stain on our democracy, one that can only be wiped by abolishing the upper house.
“It smacks of arrogance and entitlement that unelected peers can dip in and out of the Lords, choosing when they want to cash in on £332 a day on top of their Holyrood or Senedd salaries.
“With the Tories, Labour, and Liberal Democrats all having a track record in standing their unelected chums for election, there is no hope of this changing under Westminster control.
“It's sadly just one part of this broken Westminster system, and one we look forward to escaping with independence.”
Professor Meg Russell, the director of the Constitution Unit at University College London, said that members of the Lords could not sit in the Commons because the upper chamber was meant to act as a check on the other. “This clearly would not happen if the two chambers had the same members,” she told The National.
“This has always been the case historically,” Russell went on. “I would be surprised if anywhere in the world it was possible to be a member of both the first and the second chamber at the same time – as the general principle is that they are two parts of a whole and exist to check each other.
“The devolved legislatures are clearly entirely separate institutions to Westminster, so the same in principle objection does not apply.
“There may potentially be other objections to serving in two institutions of course – based on workload and the practicality of needing to be in two places at once. But it is not unprecedented internationally that you can be a member of two elected bodies at different levels of government; indeed in some cases the second chamber is specifically made up of people elected from among the membership of subnational legislatures.
“So this is much more a judgment to be made on a case-by-case basis according to national cultures and rules. In the case of the House of Lords, it should also be borne in mind that it is not a full-time salaried legislature, and that many members contribute on a relatively occasional basis.”
