18:46 - The House divided: - Ayes: 38 / Noes: 371 - Question accordingly negatived.
Wayne David
I thought that the hon. Gentleman might come back with that response. However, the difficulty with the regency legislation is that there is more than one Act. There have been a number of amending Acts. He referred to the 1937 Act, but since then there have been what some people have referred to as ad hoc departures from that legislation. In fact, the Act talks about the best person succeeding to the throne, rather than the next in line. What on earth does that mean? How do we define the “best person”? This underlines the point that the legislation will inevitably have unintended consequences that will have to be looked at in detail, with a cool head, over a reasonable period of time.
Nevertheless, we have had an excellent debate this afternoon. We have focused on the tightly defined legislation before us, but Members have also rightly taken the opportunity to extend the debate. We have now begun to open the new chapter of constitutional debate that we need to have in this country. On that basis, I hope that the hon. Member for North East Somerset will not press the new clause to a vote.
The Parliamentary Secretary, Cabinet Office (Miss Chloe Smith)
I thank all hon. Members who have spoken today for their erudite and comprehensive contributions. I join the hon. Member for Newport West (Paul Flynn) in being a fan of middle English and old English; if he would like to join me in the Tea Room some time, I am sure that we could discuss that.
Through amendments 1 and 2, my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) is seeking to ensure that a child of the Roman Catholic faith may later convert to the Protestant faith and succeed to the throne. Let me first deal with the Government’s understanding of the Act of Settlement, which we share with him. The law in this area is certainly not easy, but on balance, we agree with his interpretation of the Act of Settlement and the Bill of Rights as meaning that a Roman Catholic may not convert to the Protestant faith and then succeed to the throne. This is, however, an aspect of our constitution that we do not think has ever been tested. My hon. Friend the Member for Gainsborough (Mr Leigh) noted that such circumstances would be unlikely to arise within our lifetimes. The bar appears to be on anyone who has ever “professed” the Roman Catholic faith, or held communion with the Roman Catholic Church. Once disqualified, they are excluded for ever from succeeding to the throne.
I should like to make a few points on amendments 1 and 2 before I turn to new clause 1. My first point relates to scope. As my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) said, the scope of the Bill is narrow. I appreciate that there are reasons to criticise the law as it stands, but the amendments stray into new territory and go beyond the limited aims of the Bill. In passing, I must thank my hon. Friend the Member for Northampton North (Michael Ellis). We missed him in the earlier debates last week, but he enlivened us today when he came as close as anyone has done in the debate to asking, “Is the Pope a Catholic?”
Jacob Rees-Mogg
If my amendments were not within the scope, Mr Speaker would surely not have selected them.
Mr Deputy Speaker (Mr Nigel Evans)
That is absolutely correct. That clarification was right; the amendments are within the scope of the Bill.
Miss Smith
I have no intention of disputing your ruling, Mr Deputy Speaker, and that was not the intention of my comments. I merely wanted to say that this Bill has never had the intention of addressing the religion of the monarch or indeed of those in the line of succession.
Dan Rogerson
Although I am sympathetic to the aims of the hon. Member for North East Somerset (Jacob Rees-Mogg) in tabling the new clause and amendments, I believe that the most powerful argument for not accepting them is the one that the Minister has just set out: we should not seek to jeopardise the Bill’s moves towards equality by amending it beyond the agreement that has already been reached. I hope, however, that she and the Government will continue to have discussions with the other realms so that if further equalities can be reached, we do not abandon the possibility of having them.
Miss Smith
I thank the hon. Gentleman for his support for the Bill. I can reassure him and all Members that we are in working contact with the other realms, but we do not expect radical departures from the scope in any particular realm.
Nicholas Soames (Mid Sussex) (Con)
Does my hon. Friend agree that in this particular case, what my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has just shown is that what has been completely settled and without question can now be open to challenge? Does she believe that this is a sensible way to proceed when overturning 1,000 years of British history?
Miss Smith
I deeply respect my right hon. Friend’s intervention and, indeed, his contributions to the debates on this topic. Many aspects of the law relevant to this area are not changed by the Bill, however, and I would like to answer my right hon. Friend’s intervention by saying that, to the extent that there are difficulties, they already exist. I stated clearly last week that key elements of the Act of Settlement and the Bill of Rights stay standing, and I reiterate that today. I do not see this Bill as creating further constitutional crises than could be wrought out of the existing law.
For the record, before moving on to my second argument about the two amendments, let me state again that the Government are absolutely committed to the Church of England as the established Church, with the sovereign as its Supreme Governor. We consider that the relationship between Church and state in England is an important part of the constitutional framework. It has evolved over centuries and the Government have no intention of legislating to disestablish the Church of England. It is important to state that. The Government’s view is that allowing a person of the Roman Catholic faith to accede to the throne would clearly be incompatible with the requirement for the sovereign to be in communion with the Church of England.
Let me move on to my second argument and address the substance of the two amendments. I suggest that, if they were made, they would add greater uncertainty to the line of succession. For example, let us consider someone who is brought up as the heir to the throne and is clearly in preparation for that vocation over their lifetime. In the Government’s view, it would make that person’s position, and the position of their immediate family, very difficult, if they could be superseded at any stage by someone who converted from Roman Catholicism to the Protestant faith. By extension, that could also raise the prospect of the reigning monarch being subsequently supplanted by someone who was theoretically higher in the line of succession on that latter person’s converting from Catholicism and joining in communion with the Church of England.
I see that as a major technical problem with the two amendments. I view it as adding uncertainty and I could envisage it leading, in the words of many who have contributed to the debate, to a “constitutional crisis” which I do not see the core Bill providing for.
Sir Alan Beith
I understand the Minister’s argument, but it does not address the fact that, throughout the discussion, it has been clear that we are talking about children who are going to be brought up in mixed marriages. It is likely that, in those circumstances, before the child is of the age to decide whether they want to succeed to the throne, they will have experienced both Churches and could make a perfectly free choice—unconnected with the throne—for one or the other. That choice would determine their eligibility long before they were 18 or 19.
Miss Smith
I recognise the measured point that my right hon. Friend makes. The difficulty or tension here that we do not have the time or scope to go into with regard to this Bill, or indeed as mere parliamentarians as opposed to theologians, is the nature of free will, and the free will of the child. I want to return us to the point that the Bill does not seek to change the entirety of the Act of Settlement and the Bill of Rights, for reasons that we went through at some length last week and a little earlier today,. I put the Government’s point: the Bill is narrow in scope and does not seek to enter into the theology of the faiths in question; it seeks instead to amend a unique form of discrimination that is particularly narrow.
Mr Leigh
I do not understand the Minister’s point—that if the two amendments were passed, it could result in a constitutional crisis or somebody supplanting somebody else. If she does not mind my saying so, this seems like an argument invented by civil servants. It is over-complicating the situation, when the fact remains that under this Bill the eldest daughter or son, whoever comes first, is going to succeed. All my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) is doing through the amendments is to prevent them from being disbarred from the throne because of something that might have happened in their childhood. That is what he is saying: it is very clear; it is not very complicated.
Miss Smith
As I understand the amendments tabled by our hon. Friend the Member for North East Somerset, they would technically open the opportunity for a person to convert and provide for that person not to be “for ever” barred. I think it is possible for that to allow confusion over the very same point, including after the moment of succession. I can see that possibility arising through my hon. Friend’s amendments. I regret that that is the case, but I see it as a problem, and I humbly make that argument to the House.
Mark Durkan
The Minister is throwing up a plot line here that even Jeffrey Archer would not try to contrive in suggesting that by converting, someone is somehow going to leapfrog over somebody else in the line of succession. How would that happen?
Miss Smith
I am trying to describe a situation where an older child—the Bill affects nothing to do with the age of succession—could, due to their faith, initially be out of the line of succession but later change their faith, as envisaged by the amendments, thereby changing the realities of the succession.
Mark Durkan
If the Minister will forgive me for saying it, this is now sounding a little like “There’s a hole in my bucket, dear Liza”! She is relying on the fact that an older brother or sister might be debarred because of their faith, but the point of the amendments is to end the situation of someone being debarred because they happen to be of a particular faith at any stage in their lives.
Miss Smith
During this debate many hon. Members have asked the Government to take account of unintended consequences, and I humbly suggest that I am pointing out an unintended consequence of the amendments tabled by my hon. Friend the Member for North East Somerset.
We have heard several mentions in the debate of the support afforded to the Bill by the Archbishop of Westminster, who welcomed
“the decision of Her Majesty’s Government to give heirs to the throne the freedom to marry a Catholic”.
Importantly, he also recognised the importance of the position of the established Church in protecting and fostering the role of faith in our society. I balance that against the Church of England’s comments, which are likewise supportive. Given that both the Catholic Church and the Church of England have been extremely supportive of the changes, I believe that we have found an appropriate balance in the Bill. I do not think there is an appetite in the country at large to change or damage the position of the established Church in this country.
Wayne David
Will the Minister accept the reality of change in this extremely complex constitutional area? Whatever the moral arguments in favour of change, they must nevertheless be matched to the practicalities of constitutional change and achieving the necessary consensus to bring about that change.
Miss Smith
I welcome the comments of the hon. Gentleman, who brings me back to the point that I do not believe there is a consensus among the public for any radical divergence from the traditional arrangements for the established Church in this country.
In new clause 1, my hon. Friend proposes a perhaps rather ingenious solution: splitting the role of Supreme Governor of the Church of England from the role of sovereign, in a method akin to a regency. Such a split would represent a fundamental change to the role of the monarch in English society in relation to the established Church, and could not be considered without extensive consultation. I am delighted that the House had sufficient time to debate all the matters that were in scope last week, but new clause 1 suggests a more radical diversion from the traditional role of the monarchy. There is not public support for the proposed change, which opens up a series of extremely difficult questions about what the relationship would be between the sovereign and the Supreme Governor, and whether such arrangements could continue to support the established place of the Church of England. My right hon. Friend the Member for Louth and Horncastle (Sir Peter Tapsell) raised a question about how the coronation and accession oaths could be made to work in such an instance.
The Government have no intention of going further than the limited scope of the Bill as presented. The amendments and the new clause tabled by my hon. Friend the Member for North East Somerset would introduce instability and uncertainty of a type that is not welcome in the institution we are discussing, which has served the country well for generations in its temporal role and in its spiritual role as articulated. As there is neither public support for the admirably comprehensive arguments that have been made, nor appropriate space for consultation on them considering that the legislation must be taken through many other realms, I invite my hon. Friend to seek leave to withdraw his amendments.
Paul Flynn
I beg to move amendment 3, page 1, line 2, leave out
‘born after 28 October 2011’
and insert ‘whenever born’.
I shall be much briefer than I was when we debated the previous amendments. From where I sit in the House, I noticed the conversations that Members were having as they went in to vote and I think that many who opposed the previous measure will be very surprised to see, when they read the papers tomorrow, what exactly they voted against.
Amendment 3 is a brief and helpful proposal to remove the specified date. Lord Armstrong has recently reminded us of how atrocious we, sadly, are in this Parliament at legislating. When we legislate in haste we often legislate in error, and what Lord Armstrong has said, having gone through the Bills passed in the 13 years of the previous Government, is that 75 went through all stages in this House and the other House, received Royal Assent and then were never implemented—they made no difference.
We have now reached the position where this Bill may well be judged as an atrocious piece of legislation, because there is no need to limit us to a date. We are dealing with a situation where the child is likely to be born—this is referred to in the Bill—in the summer, but there is no need to make a decision now. We can give ourselves time to improve the Bill and avoid the unintended consequences it contains.
I cannot see why we should not apply this provision now. If this is such a good idea—there is an almost universal approval in the House for the main proposition of getting rid of discrimination against women—why not do it immediately? Why should it apply in 40 or 60 years’ time? Why should it not apply immediately? The effect of that might be nothing at all, because those in the line of succession in the foreseeable future are predominantly male, barring problems that might occur with premature deaths, accidents and so on. However, it is conceivable, although unlikely, that there could be a female in direct line to the throne. Are we going to wait until the child that is going to be born in July reaches maturity for this beneficial legislation to come into force? If it is worth doing, it is worth doing now.
Miss Chloe Smith
I will be equally as brief as the hon. Gentleman. I, too, understand that the effect of his amendment would be to make the gender of any person in the line of succession irrelevant when determining succession to the throne. I put it to him that the Government did not make an omission; the way we set out the Bill was a deliberate choice. His amendment would change the current line of succession. Specifically—I suspect he has this in mind—their Royal Highnesses Prince Andrew and Prince Edward, and their descendants, would move below Her Royal Highness Princess Anne and her descendants. The Government do not believe it is fair or reasonable to alter the legitimate expectations of those currently in line to the throne. The hon. Gentleman’s amendment is a retrospective provision and there would need to be good reason for it.
Commonwealth leaders have agreed to remove the male bias in succession to the Crown for the future. For reasons we have already discussed at length, the Government view that agreement as being important to maintain, and it does not envisage the current order of succession being disturbed. Rather, when new members of the royal family are born they will enter the line of succession without there being any preference for males over females, and I know that the hon. Gentleman shares that latter principle with me.
Michael Ellis
Does the Minister agree that not only would it be intrinsically unfair to adopt an ex post facto aspect to the Bill by applying it retrospectively to those who have lived in the current order of succession for many years—their adult lives—but it would breach the principle of avoiding retrospective legislation in this House?
Miss Smith
I thank my hon. Friend for that contribution. I note that the different clauses of this Bill do carry slightly different connotations of retrospectivity. I would be happy to explain that, but we did cover some of those issues in detail in Committee. He is right to say that what is relevant in clause 1 is the legitimate expectations of those currently close to the throne in the line of succession. We do face a question about what is fair and reasonable to them. Clause 1 strikes a fair balance by providing that gender is irrelevant in this regard for persons born after the date of the agreement reached by the Commonwealth realms on 28 October 2011. That element of retrospection is justifiable.
An important practical element and effect of the measure is that if the Duke and Duchess of Cambridge were to have a daughter and then a son, the daughter would precede the son in the line of succession. I believe that all hon. Members know that that is an example of the point behind clause 1. It is also clear that that deals with a future occurrence, as opposed to altering the legitimate expectations of those currently in line to the throne. For that reason, I invite the hon. Gentleman to withdraw his amendment.
Paul Flynn
I am disappointed at the limit to the reforming zeal of this Government, who seem to be saying, “God, make me gender neutral—but not yet.” I know that the Minister was disappointed that I did not move my amendment in middle English, but in the spirit of what she said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Third Reading
The Deputy Leader of the House of Commons (Tom Brake)
I beg to move, That the Bill be now read the Third time.
I want to thank the House for the gripping debate that took place last Tuesday and for the scrutiny that has been provided. I was very glad to see that Members had sufficient time in Committee to consider all the amendments that were selected. I particularly want to thank various participants, such as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) and the hon. Member for Rhondda (Chris Bryant), who brought such a deep understanding of our complex and colourful constitutional settlement to the Floor of the House. I would also like to thank the hon. Member for Newport West (Paul Flynn), who cruelly described my hon. Friend the Member for North East Somerset as the Member for the middle ages but then went on to refer to the Roman era—so presumably he is the Member representing the Roman occupation in today’s debate.
I also wish to thank the royal household for its engagement and should mention the tireless work of Governments from across the Commonwealth, ably marshalled by Rebecca Kitteridge the New Zealand Cabinet Secretary. It has been a remarkable achievement to ensure that the changes we are discussing can be effected across the realms of the Commonwealth for which Her Majesty is Head of State.
I should like to make a point of clarification on an issue discussed in Committee. The hon. Member for Caerphilly (Wayne David) asked whether, under the Statute of Westminster 1931, individual Parliaments in the respective states of the Commonwealth need to give their assent. The relevant part of the Statute of Westminster is the preamble, which includes the following:
“And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”.
To put it another way, our opinion is that the Statute of Westminster 1931 is politically rather than legally binding. A statement in a preamble is different from a section in an Act. Bearing that in mind, the Government have consulted the 15 other Commonwealth realms in order to reach agreement as to how the laws on succession to the throne should be changed. We have secured confirmation from Heads of Government and Cabinet Secretaries that each realm is in a position to take the steps necessary to bring the changes into effect. We consider that the appropriate steps are a matter for each respective realm in their particular context. Although some realms will not find it necessary to involve their Parliaments, others will.
The Bill is about equality. The Prime Ministers of the 16 Commonwealth nations of which Her Majesty the Queen is Head of State agreed during their meeting in Perth in 2011 to work together towards a common approach to amending the rules of succession to their respective Crowns. All those countries wish to see change in two areas: first, to end the system of male-preference primogeniture, under which a younger son can displace an elder daughter in the line of succession; and, secondly, to remove the bar on the heir to the throne marrying a Catholic. One effect of the proposed change is that if the Duke and Duchess of Cambridge were to have a daughter and then a son, the daughter would precede the son in the line of succession. I am proud that the Bill will remove two long-standing pieces of discrimination and modernise and affirm the place of our constitutional monarchy.
Mr Ben Wallace (Wyre and Preston North) (Con)
On that issue—my right hon. Friend uses the example of a daughter and a younger son—has he managed to provide clarification on the points raised last week on what would happen to titles such as the Duke of Rothesay that specify a male heir in their deeds or patents provident?
Mr Wallace
I am grateful to my right hon. Friend for giving way but I believe he might not understand me. The monarch is the fount of honour and can create a title, but most titles are not the privilege of the monarch once they are created—most titles are in fact a matter for Parliament. It takes an Act of Parliament to change or abolish a title except those deemed, under the doctrine of merger, to resort back to the Crown. In that case, will he tell us what will happen to those titles not under the doctrine of merger?
Tom Brake
On the titles to which my hon. Friend refers, the following might be helpful. The Scottish titles currently held by the Prince of Wales—Prince and Great Steward of Scotland, Duke of Rothesay, Earl of Carrick, Lord of the Isles and Baron of Renfrew—can pass automatically to a female heir apparent. Those titles have always hung together. The removal of the male bias in the line of succession could therefore not result in the detachment of the titles from the Crown. We have consulted the Court of the Lord Lyon, the official heraldry office for Scotland, on that. I hope that reassures my hon. Friend.
As we look forward to the birth of the Duke and Duchess of Cambridge’s first child, we can also celebrate the fact that a baby boy or girl will have an equal claim to the throne.
Miss Chloe Smith
With brevity and the leave of the House, I simply want to confirm that I would be happy to expand the explanatory notes as the Bill goes to the other place. I also want to suggest that everyone in the House—
Miss Smith
Will the hon. Gentleman not allow me the pleasure of simply saying, “God save the Queen”?
Wayne David
I have no objection at all—the Minister can say it again if she likes.
My hon. Friend the Member for Rhondda (Chris Bryant) mentioned how the six people nearest in line to the throne could lose their place if the Queen did not consent to their marriage. It is important to say on the record that the explanatory notes state clearly that that would be the case; in fact, it says so in the summary on the front page. I do not think, therefore, that it is fair to say that the issue has not been referred to properly in the House—it has been referred to in the documents and in last week’s debate.
It is also important to remember that we are talking about a constitutional monarchy that has a close relationship with the Government of the day. I am sure that a monarch would not take any action if they believed that, in doing so, they would be acting incorrectly in the background.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Thank you for that short intervention.
Miss Smith
I thank the hon. Gentleman for his intervention and commend the Bill to the other place.
Question put and agreed to.
Bill accordingly read the Third time and passed.