Scotland referendum 2014: the impact of independence on the UK Parliament

When Scotland votes in the independence referendum in September 2014, the next UK general election will be due seven and a half months later in May 2015.

Should Scotland vote Yes, the Scottish Government aims for independence in March 2016. So Scottish constituencies will be part of the UK at the time of the general election in 2015.

That election will determine which party, or parties, will lead the negotiations with Scotland. But what if after the 2015 election Scottish MPs hold the balance of power in the Commons? Would Scottish MPs from all parties agree to vote on a restricted range of issues until independence, as the SNP currently does? When and how would Scottish constituencies stop being represented? What impact would this have on the Government's majority? And what about the House of Lords, whose members do not represent geographical areas?

The Irish precedent

The loss of 59 seats in the UK House of Commons would lead to the first major change in its composition since the creation of the Irish Free State in 1922 and the substitution of 13 Northern Ireland seats for the pre-war total of 105 MPs from Ireland.

The process by which southern Ireland left the UK was protracted. 73 Sinn Fein MPs elected in the 1918 general election did not attend Westminster, and the outbreak of civil disorder in Ireland eventually led to the Irish Free State (Agreement) Act of March 1922, which acknowledged the constitution of the Irish Free State and stated that no further writs would be issued after Royal Assent for constituencies within the territory of the new state.

The Free State was expected to take on the characteristics of a Dominion territory, such as Canada or Australia, and not to become fully independent. The existence of the Common Travel Area and the continued right of Irish citizens resident in the UK to vote in elections there meant that the break with the rest of the UK was not as stark as it might have been. Even though the Republic of Ireland left the Commonwealth in 1948, Irish citizens retain to this day the right to vote in all UK elections, so long as they meet the other eligibility criteria.

An England-heavy Union?

Leading figures in Wales have begun to consider the question of Wales in a union without Scotland. At present Scotland is seen as a counterweight to English interests in the UK. England would outweigh Wales and Northern Ireland far more than it does Scotland, Wales and Northern Ireland combined, in terms of population, wealth and MPs.

The First Minister of Wales, Carwyn Jones, has called for a written constitution governing the relations between the UK and devolved institutions. He raised with the Prime Minister the idea of a constitutional convention, which was also suggested by the Political and Constitutional Reform Committee (PDF) in March 2013. David Cameron suggested postponing this until after the referendum result.

The position of Northern Ireland in a new UK might also cause tensions, but as yet a public debate has not taken place. Some have suggested that a Scottish Yes vote would open up constitutional debate in Northern Ireland, prompting nationalist interest in a border poll provided for in the Northern Ireland Act 1998, and Unionist interest in more autonomy.

Would it be possible to exclude Scottish representation at Westminster while it is still part of the UK?

As things currently stand, the UK general election in May 2015 will take place as normal, including the Scottish constituencies, regardless of the outcome of the referendum. If Scotland votes in favour of independence, there will be a process of negotiation which the Scottish Government hopes to complete in time for the next Scottish parliamentary elections in 2016. As a result, there would be a period of at least 10 months after the UK general election in which Scotland would still be part of the UK. Scottish voters would have interests in the negotiations, as well as ordinary constituency issues on which they would expect to be represented. Yet at the same time, MPs in Scottish seats would have long-term interests divergent from those of other MPs. The UK Government would seek to act in the interests of the new UK state, even if its majority depended on Scottish seats.

Commentators have suggested that 2015 would pose dilemmas for candidates and voters in Scotland who would be standing/voting for temporary representation in the UK Parliament.

Evidence given to the House of Lords Constitution Committee drew attention to “a situation potentially much more toxic than the ‘West Lothian Question'” insofar as Scottish representatives were able to participate and vote in business related to independence. They would be open to criticism that they had either improved the terms of independence for Scotland without having to bear the consequences in the UK, of which they would still be representatives at the time of negotiations, or that they had undermined potentially more favourable terms that the Scottish Government might have secured.

The Constitution Committee published its report in May 2014, calling for Members representing Scottish constituencies to stop sitting in the Commons from independence day. It made no recommendation on the role of these MPs in the interim, but it called for their status to be resolved before the 2015 general election.

How many seats would the next Parliament have?

The Parliamentary Voting System and Constituencies Act 2011 allowed for a reduction in the number of MPs to from 650 to 600. The Parliamentary boundary review implementing this has been postponed until 2018, but legislation will be required to alter the rules if Scotland votes for independence. A simple removal of Scottish seats would reduce the present House of Commons by 59 seats to 591. However, the electoral quota used to determine the size of constituencies was previously calculated UK-wide: this would have to be recalculated without Scotland for the new review. Given that work on the next general review is due to start shortly after the general election of 2015 to meet the deadline of 2018, primary legislation would be needed as soon as possible after the referendum, if Scotland votes Yes.

General elections without Scotland

If MPs from Scottish constituencies elected in 2015 left the Commons mid-term in 2016, there would be an impact on the Government's majority. A UK government elected in 2015 might even lose its majority as a result of Scottish MPs being removed. It is not certain what would happen in this case. The Government could change without an election, if it resigned and another party were asked to form a Government. Alternatively, the existing Government could attempt to carry on without an absolute majority. The Fixed-term Parliaments Act 2011 does not provide for an automatic general election if the Government loses its majority, but it does allow for an early election if a motion is passed in terms set out in the Act.

Currently, of the existing 59 Scottish seats, the Conservatives have one, Labour has 41 and the Liberal Democrats 11. If the 2010 election had taken place without Scotland, the Conservatives would have been the largest party with 305 Commons seats, a majority of nine. But in 2010 Labour's vote share was its second lowest at any general election since 1945. What would happen if Labour's vote share in 2015 were to recover from this low? There is further discussion of possible electoral outcomes in the Library blogs of 31 and 30 January 2014.

Scottish and Irish Peers in the House of Lords

While the composition of the House of Commons would have to change to reflect Scottish independence (the debate is over how and when it would change), the situation in respect of the House of Lords is less clear and might become entangled in wider questions of Lords reform.

The Scottish Act of Union of 1707 and the Irish Act of Union of 1800 provided that elected representatives of the peerages of Scotland and Ireland would sit in the House of Lords in the Westminster Parliament. While the Scottish Peers elected their 16 representatives for each new Parliament, the Irish chose their 28 Peers in 1800 to sit for life; thereafter an election occurred only when an elected Member died. In addition to the election of representative Peers from both nations, individuals from Scotland and Ireland also received peerages of Great Britain or of the United Kingdom.

Following the establishment of the Irish Free State in 1922 and the abolition of the office of Lord Chancellor of Ireland, elections for Irish representative Peers ceased. However, the elected Members were not required to relinquish their seats, with some Irish Peers remaining members of the House of Lords until their death. Elections for Scottish representative Peers ended under the Peerage Act 1963. The Act also entitled all Scottish Peers to sit in the House of Lords.

Statutes to consider

Currently, people born in Scotland are expressly permitted to sit in the House of Lords under the Act of Settlement 1701. In addition, the British Nationality Act 1981 allows British citizens and Commonwealth citizens to be Members of the House of Lords. Therefore, if Scotland voted for independence, Scottish nationals would still be eligible to sit in the House of Lords unless these two Acts were amended, or the Act of Settlement were amended and Scotland ceased being a member of the Commonwealth.

Further to this, the Life Peerages Act 1958 allows “any person” to be granted a life Peerage and the Peerage Act 1963 states that hereditary titles that were “peerages of Scotland” were to be treated in the same manner as “peerages of the United Kingdom”. Again, unless this legislation were amended, people born in Scotland would continue to be eligible to receive a life Peerage, and both Scottish life Peers and Scottish hereditary Peers would continue to receive their writ of summons to sit in the House. However, under the Constitutional Reform and Governance Act 2010, Members receiving their writ of summons are considered as domiciled and resident in the United Kingdom for tax purposes. It remains to be seen whether and how this might be amended were Scotland to become independent and the UK in its present form no longer to exist.

Since the abandonment of the Government's House of Lords Reform Bill 2012-13 there has been no Government proposal for thoroughgoing reform, and none is currently proposed that could deal with the above issues.