Succession to the Crown Bill
(11 years, 1 month ago)
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“Royal marriages: heirs of the body
(1) A marriage is a Royal Marriage for the purposes of establishing the claim of any person to succeed to the Crown as heir to the body if that Marriage is a marriage between a man and a woman.
(2) A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage.
(3) This section does not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply.”
Lord True
My Lords, as this amendment was on the Marshalled List in Committee I can be brief, because I set out the detailed points then. However, I repeat that I do not make these points in relation to the Marriage (Same Sex Couples) Bill and would deplore any attempt to obstruct that Bill by invocation of any issue involving the Crown. I believe that that would be a dereliction of Parliament’s duty.
My concern arises from the security of the 17th century term “heir of the body”, the governing definition for the right to succession, as it might be constructively tested in the courts in modern conditions: namely, the emerging legislation for same-sex marriage and the techniques of surrogate childbirth. On the first, it will clearly be lawful for a monarch or an existing heir of the body to enter into a same-sex marriage when that Act becomes law. After all, one hesitates to imagine the circumstances in which either Clause 3(3) of this Bill were used to frustrate an intended same-sex marriage —a novel interference with rights, as others have pointed out—thereby denying that person succession to the Throne, or indeed where there was no intervention and the marriage was accepted in some of the realms and not others.
In such circumstances, the then Prime Minister would find himself in the uncomfortable position of Lord Salisbury in 1890, when Queen Victoria suddenly became enthusiastic about a possible Catholic marriage for the second in line to the Throne. I do not want to take this issue further; I simply lay on the record the potential for conflict.
However, I do want to pursue the issue that follows inevitably from the possibility of a lawful same-sex marriage. From that, and indeed from the position of a royal couple who cannot conceive a child, there follows the question of whether a child could be argued, in the 17th-century language, to be an heir of the body. I pointed out in Committee that the relevant statute refers to an heir of the body being defined from one person, not from both, in a couple.
In Committee and in a most courteous letter to me, my noble and learned friend Lord Wallace, whom I thank for his handling of the Bill, which has been outstanding, said:
“Only a natural-born child of a husband and wife can succeed to the Throne”.—[Official Report, 28/2/13; col. 1217.]
If that is so, and it has always been understood to be the position, those words would also exclude any claim to becoming a monarch made in the future by a child born of a Queen—an heir of the body of a Queen—who was not engendered by the sperm of a consort, even though that would-be heir might have been from an egg of the Queen, carried by the Queen and born of the body of the Queen in a lawful same-sex marriage. We all agree that that is the common law. I simply ask whether the common law is proof against any claim to a right that might be entertained in future, either in the European Court of Human Rights or anywhere else. It need not arise directly in the case of an existing heir but in a less proximate person, who then, by accident, became the heir to the Throne.
In his letter to me, my noble and learned friend said that the European Court of Human Rights would not entertain such a claim because the right to succeed is not a family right, a property right or a civil right. Let us hope that that is so, although it is territory into which I am not qualified to go. He further argues, however, by citing to me the Human Fertilisation and Embryology Act 2005, that an heir of a Queen’s body alone could not succeed. I raised this in Committee and referred to it as being potentially less than conclusive as a defence of the definition of “heir of the body”, given the nature of the drafting of the statute.
The relevant section refers to,
“any dignity or title of honour”.
The words “of honour” were left out in my noble friend’s letter, although I think they are significant as, by my interpretation, honour is surely something that flows from the Crown. My noble and learned friend also argues that a lesser dignity must surely encompass a greater dignity. Again, I am not qualified to answer that question, but clearly removal of any doubt as to whether the Crown is encompassed in that 2005 Act would simply solve the matter. It would debar an heir of the Queen’s body who was not the genetic heir of the monarch and his or her consort in whatever form of marriage.
Amendment 9 in the name of my noble friend Lord Elton, which I support, picks up the point that I made on this in Committee and suggests a simple amendment to the Human Fertilisation and Embryology Act. It would not offend against the Perth agreement, as it simply clarifies beyond doubt what the Government and most of us in this House believe to be the law, and it fireproofs it against attack.
It may be that these occasions seem remote but, as history shows, nothing is ever certain. In Committee, I raised the d’Este case—a challenge for legitimacy by the son of Queen Victoria’s uncle, the Duke of Sussex—as an example of a would-be royal heir having recourse to the law. Although my noble friend argued that he did not appeal to the courts, he did appeal to your Lordships’ Committee for Privileges, which was, and still is, the appropriate place for the test of a peerage.
My noble and learned friend, in his letter, says that Sir Augustus did not challenge the legitimacy of the Royal Marriages Act. That is technically correct, but he was arguing that his parents’ marriage, and therefore his right to succession, was valid on other grounds in that the Royal Marriages Act did not apply. It would be a parallel case for a future claimant to go the courts here or abroad to argue that the Human Fertilisation and Embryology Act did not rule out his or her legitimate claim.
Human nature is such that what happened once, however unlikely it may seem, might happen again. Given that it is the duty of Parliament to relieve the monarchy of any potential controversy, this matter could and should be put beyond doubt. I believe that my noble and learned friend has offered a simple way to do that. While I shall not in any circumstances be pressing my amendment to a Division—I never intended to do so—I support my noble and learned friend in seeking to clarify the 2005 Act beyond all doubt. If it is not appropriate to do it in this Bill—I have heard that argument from the Front Bench—I hope that this potential loophole can quietly and efficiently be closed some time in the future. I beg to move.
Lord Elton
My Lords, my amendment has been grouped so that the first and last stand together. My noble friend has fully explained the circumstances that make the amendment necessary. He has traced the identification of the monarch from the Act of Settlement through various other Acts to the present. The question is whether that is a continuous and incontestable line or whether there is doubt thrown upon it. He has demonstrated that there is doubt—a point that I picked up in Committee. Doubt is thrown on it by the Human Fertilisation and Embryology Act 2008. We have discussed that in Committee but there are rather more noble Lords here than there were on that day, so it is worth repeating that Section 48(7) of the HFEA 2008 recites what is not to be altered or touched by what is in that Act.
The two things caught out are titles and other honours. To the lay mind, that does not embrace the possession of the Crown, which is the subject of this Bill, and therefore does not seem to offer any of the protection that my noble and learned friend the Lord Advocate says that it offers. I cannot see the principle by which it could. The principle will apply to the 1987 Act—that is in the same letter from the Lord Advocate referred to by my noble friend. Another letter refers to “us”—being the Government—and the Lord Advocate says that the, “lesser includes the greater”. I think that was the phrase. If that is right, my noble and learned friend should know that that brings instantly to my mind an image of a bar, other than the one to which he was called, and a quart being poured into a pint pot with an awful mess on the taproom floor. The greater surely includes the lesser, rather than the other way round. However, that is irrelevant because that referred to another Act, and he did not advance that argument in the case of this Act.
My simple point is that the Act that the Government say purports to provide protection for the succession of the Crown does not do so. It specifically mentions other objects. Incidentally, my noble and learned friend referred to this in Committee, almost subliminally. If I were a psychiatrist, I would be interested to know how he would interpret the fact that he said:
“The Bill will maintain the position under the Adoption Act and the Human Fertilisation and Embryology Act 2008 referred to above. It will not change the way the Crown, or titles”—
not “and”, but “or titles”—
“or dignities, descend”.—[Official Report, 28/2/13; col. 1217.]
It seems to me that that betrays the fact that it is a separate concept; it is not contained in that definition. Therefore, I ask my noble and learned friend to consider before Third Reading putting in the words of my amendment, which would clarify this beyond doubt. Even if my noble and learned friend and the Government think that this is unnecessary—like him, if I embrace the lesser and the greater—it is still not harmful. If they are wrong and we are right, it needs to be done.
Lord Trefgarne
My Lords, I broadly support my noble friend Lord True in his amendment. Indeed, at an earlier stage of my deliberations about today’s proceedings, I thought of tabling an amendment to do something similar to what he is now proposing. Having read my noble friend’s amendment, however, I thought better of it and withdrew my amendment for the time being.
My only reservation about my noble friend’s amendment is proposed new subsection (3) of the new clause, which says that the proposed new section,
“should not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply”.
I would have thought that proposed new subsections (1) and (2) were absolute considerations, thought to apply willy-nilly, and Parliament ought not to have the right to overturn them. However, that is a small point compared to the principle of what he is proposing, which, in general, I support.
Lord Jopling
My Lords, I am afraid that I have not been able to play a part in the earlier consideration of this Bill. However, I looked at proposed new subsection (2) of my noble friend Lord True’s amendment, which says:
“A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage”.
That takes me back 20 years when, in another place down the Corridor, I had cause to study the embryology Bill, which was going through the Commons at that time. A constituency case came to me of a couple who had found that they could not have a child; the lady had no uterus, but she ovulated. They therefore found a surrogate mother and had the egg from the wife, which was fertilised by the husband, implanted in the surrogate mother. In this case, the surrogate mother gave birth to twins. My constituents brought the twins back to have them registered, and the registrar of births, deaths and marriages said, “Sorry, although you may be the genetic parents of these children, you are going to have to adopt them”. They said, “Don’t be so stupid—we are the genetic parents. Why should we have to adopt our own children?”. This was an anomaly that I took up and caused that Bill to be changed with the help of my right honourable friend Kenneth Clarke, who was the Home Secretary at the time. The change meant that in a case such as that, if an application were made to the High Court, a judge could deem that parents of children who were the genetic offspring of those parents were full parents by an order of the judge in the High Court. That, as far as I understand it, is still the law.
My question to the Minister, thinking of my noble friend’s amendment, is: what would happen in a case like that, where the offspring of both parents are created in circumstances such as the ones I just described? Would it be necessary for the royal parents to apply to the High Court? Surrogacy is becoming much more common and it is not impossible that this could happen in the future. In this sort of circumstance, when the child of a royal marriage was created in this way, would it be necessary to apply to the High Court for that child to be deemed, in the words of the amendment, the “offspring of both parties”? It is rather important that this should be clarified now because it could give rise to considerable difficulties in the future.
Baroness Hayter of Kentish Town
My Lords, this is an interesting discussion but, as the House will know, the Bill has three purposes, all of which are about changing the succession to the Crown. One is to allow women to inherit if they are the eldest; the second is to allow people not to have to forgo their place in respect of the Throne if they were to marry a Catholic; and the third is to allow people to maintain their position should they marry, in certain circumstances, without the monarch’s permission. Those are the three changes to the laws of succession. It seems to us that nothing in the Bill alters the current position that only a natural-born child of a husband and wife can succeed to the Throne. Interesting though these questions are, we would not seek to have them included in this Bill and therefore do not support these amendments.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friends Lord True and Lord Elton for bringing forward these amendments. As my noble friend Lord True said, he brought forward a very similar amendment in Committee and it is important that he has given us an opportunity to debate these issues again. Following on from the Committee stage, I assure my noble friend and the House that I have given this matter thought. It is an important matter. When the phrase “heirs of the body” was incorporated into the Act of Settlement no one could conceivably—possibly—have anticipated the kind of advances that we have seen in the past 50 years, which raise these kind of issues, particularly with regard to human fertilisation and embryology.
As the noble Baroness, Lady Hayter, said, the laws governing succession to the Crown require that the descendant be the natural-born child of a husband and wife. As I indicated in Committee and, indeed, as I said to my noble friend Lord True in the letter from which he quoted:
“Although the Adoption Act 1976 and the Family Law Reform Act 1987 refer only to the succession of titles being left unchanged by their reforms, the Lord Chancellor stated at Second Reading of the Bill that became the 1987 Act that there was no intention to alter the rules on the descent of the Crown”.—[Official Report, 28/2/13; col. 1217.]
My noble friend Lord Elton raised the important point about Section 48(7) of the Human Fertilisation and Embryology Act 2008 concerning England, Wales and Northern Ireland, which has the effect that nothing in the sections concerning parenthood in cases of artificial reproduction,
“affects the succession to any dignity or title … or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.
Although I acknowledge that the Crown is not expressly mentioned, it is the Government’s view—we have given this considerable thought, and the phrase “the lesser must include the greater” has already been used—that if titles are not affected by this then, a fortiori, neither is the Crown. Therefore, we do not believe that there is a need for this amendment.
The Government also consider it unnecessary to define marriage as is set out in subsection (1) of the proposed new clause under this amendment, as only a natural-born child of a husband and wife can succeed to the Throne. We believe that that is clear as a matter of common law, as I think my noble friend Lord True acknowledged. I do not think that my noble friend referred to this in moving his amendment, but my noble friend Lord Trefgarne did pick up on proposed new subsection (3), on which I was going to reflect, because I think my noble friend Lord True said that the last thing that he wanted to do was engender controversy. I fear that this could become quite a controversial matter if Parliament is asked to pass a resolution on whether proposed new subsections (1) and (2) would apply, but it may be that he was not particularly pressing that leg of his amendment.
Lord Elton
Before my noble and learned friend sits down, perhaps he could clear up one thing in my mind. I certainly support my noble friend but if he were to withdraw at a later stage, I would be minded to continue unless I was satisfied.
My noble and learned friend has again rested importance on the definition within the HFEA 2008, but he preceded that by saying that the real defence was in the interpretation of “heirs of the body” and “natural-born”. Therefore, that is not relevant, if that is the full defence. If the lesser must include the greater, the Crown is the fount of honour and if you imagine it as just that—a spring of water—it can be pure until he upsets his picnic basket into it. It seems to me that the picnic basket defence is in what he proposes but the actual spring water is not protected.
Lord Wallace of Tankerness
Without a lot of thought, I am not sure that I want to embrace that particular analogy. The point I was seeking to make was that if the transmission of a title of the peerage is not affected by the developments that appear in the legislation, a fortiori nor should the succession to the Crown be affected. It is obviously far more significant—I am searching for the right adjective—and of far greater importance than the transmission of a title. Therefore, our belief is that that would not be affected and that in this case the lesser must include the greater.
I have also indicated that with regard to the heirs of the body, it is the position, which my noble friend Lord True accepted, that only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear as a matter of common law. He then went on, as my noble friend has done, to raise more recent statutes. However, as I have indicated, my noble friend Lord Jopling raised an important point about where the child is the natural child of the mother and father. I want to reflect on that; it is only proper to do so. I shall certainly advise and write to my noble friend, and copy the letter to others who have taken part in this debate. On that basis, I invite my noble friends not to press their amendments.
Lord True
My Lords, I thank my noble and learned friend and all those who have contributed to this short debate. I fully accept the comments made on subsection (3) of the new clause proposed by my amendment.
As I said at the outset, I do intend to press this matter, although I remain troubled even after what my noble and learned friend has said. I make it clear to him that, although I accept his argument that a marriage is a man and a woman and natural-born child thereof as a matter of common law, my concern arises that, as the law may evolve, that understanding may be challenged. I hoped and thought that I had made that clear to your Lordships. Once same-sex marriage becomes part of the settled life of our kingdom, the law will inevitably evolve in response to that reality. A birth of this kind would not be open to a monarch who was in a same-sex marriage. The question would therefore arise about whether such a monarch could have a legitimate heir of the body.
This may seem fanciful to some; it may seem long in the future. However, I believe that Parliament should reflect on the points made in this debate—I was grateful to hear my noble and learned friend say that he would do so—including on the very important point raised by my noble friend Lord Jopling.
The position as I understand it as a layman is that there are certain defences against a potential claim. One is the common law, which may or may not evolve and which may or may not be challenged in the European courts. I hear what my noble and learned friend said, although I have heard that said about many other things which have come to be challenged in the European courts. Furthermore, as I said, the position may not be challenged absolutely on the question at the moment of succession; it could be a matter that arises within the Royal Family. A right is established, and then a right of family and right of property, and then, by accident, that person at a later stage becomes the heir to the Throne. I remain a little concerned as to whether that is a defence.
I heard what my noble and learned friend said about the Human Fertilisation and Embryology Act. I was extremely grateful for the assurances that he gave and the promise to look at it further. The Crown to my mind is something sui generis; the law of the Crown is something separate. It seems to me, as a humble layman construing that reference to dignity and titles of honour, that that was not intended to refer to the Crown.
Therefore, the question potentially lies open and I submit with respect to your Lordships that, at some stage in the future, the matter should be closed. I do not intend to press my amendment, but I shall watch with interest what my noble friend Lord Elton may do at a later stage. However, I hope that, at some point, any scintilla of uncertainty—and I believe that there is uncertainty—will be removed. I beg leave to withdraw the amendment.
Lord Berkeley
“Succession to the Duchy of Cornwall not to depend on gender
In determining the succession to the Duchy of Cornwall, the gender of a person born after 28 October 2011 does not give that person, or that person’s descendants, precedence over any other person (whenever born).”
Lord Berkeley
My Lords, this amendment was tabled in Committee. My purpose in tabling it again today is gently to take issue with the Minister on one aspect of his letter to noble Lords dated 7 March in connection with the title of the Duke of Cornwall. Before I do that, I draw your Lordships’ attention to this wonderful statement on page 2 of his letter, which says:
“The Crown is the source of all honour and dignity”.
That is absolutely wonderful. It reminds me of the inhabitants of the town of Titipu in “The Mikado”, who defer to the Lord High Executioner. I wish we could move on from some of the Crown’s “all honour and dignity” because part of the Crown is the Government, as we all know.
Turning to the issue I want to raise, page 1 of the Minister’s letter states:
“The title of the Duke of Cornwall can only pass to the eldest son and heir of the monarch”.
I have had some interesting advice from a public notary called John Kirkhope, who is a real expert on these issues. He challenges this statement. He says that the charter establishing the Duchy of Cornwall was dated 1337 and is in Latin. He has kindly given me a 14-page translation, which I will not read out, but if the Minister wants a copy I will be pleased to give him one. Basically, he says that there is precedent for other options besides what the Minister says in the letter. Mr Kirkhope says,
“if I am King and have two sons A and B, A would be Duke of Cornwall. If A dies before becoming King making B Heir Apparent, B would not be the Duke of Cornwall”.
However, he goes on:
“The eldest son of Henry VII, Arthur, died before becoming King leaving his younger brother Henry as Heir. Henry VII got Parliament to agree that his son Henry should become Duke of Cornwall. The eldest son of James I, Henry, died before becoming king leaving a younger brother Charles. In this case James I got the courts to agree that Charles should become Duke of Cornwall”.
It seems that in those days the eldest living son of the sovereign would become heir to the title of Duke of Cornwall, so the devolution of the title has already been varied from that envisaged in the founding charter. I cannot see why this variation should not be applied today. It is consistent with the devolution of the Duchy of Lancaster, the title of which is always with the sovereign, regardless of gender. I suggest that it would be perfectly reasonable for Parliament simply to change the rules to say that the heir to the Throne is the Duke of Cornwall. I beg to move.
Lord Lexden
My Lords, we are deeply indebted to the noble Lord, Lord Berkeley, for raising this important matter again. A valuable discussion took place in Committee, drawing attention to the fact that the Duchy and its properties tend to flourish most conspicuously when they have a Duke in charge of them. They have been particularly blessed and fortunate in this regard since the 1950s with the current Duke, the Prince of Wales, at the helm. Incidentally, this was also true under the previous Prince of Wales and Duke of Cornwall, who later and briefly became Edward VIII. The tenants of his Kennington estates were the envy of those who rented their homes from London County Council.
Our discussion in Committee also established that the experience gained by the heir to the Throne in administering the Duchy estates is invaluable in equipping him for his wider duties. So why not for “him” read “or her”? The noble Lord, Lord Berkeley, has consulted experts, as he told us, about the Duchy’s founding charter laid in Parliament in 1337. It is clear from what he has told us today that the charter has not remained inviolate over the centuries. Should Parliament not be invited to change the charter again, to incorporate the principle of gender equality, which is one of the founding principles of this Bill? The Bill itself may not be the vehicle for making the change. If not, will my noble and learned friend give a commitment that a measure to provide for it will be introduced? Its rapid progression through both Houses could hardly be in doubt, although I hesitate to use that dreaded term “fast-tracked”.
Lord Lloyd of Berwick
I support the principle underlying the amendment. It seems to me the logical extension of the principle underlying the Bill itself, but I can see that this might not be the most suitable vehicle for bringing about a reform which I continue to regard as being very desirable in itself. I will not repeat the reasons which I gave in Committee for taking that view. If the amendment is not accepted now, I hope that the council of the Duchy of Cornwall, with the help of the Government, will consider introducing legislation to amend the ancient charter to enable that principle to be effected.
Lord Trefgarne
My Lords, I, too, broadly support the principle behind the amendment, but I ask my noble and learned friend about a related matter which I raised in Committee but did not get a full and clear answer. Is it in order and open to the sovereign to confer on his or her eldest daughter the princessdom, if I may call it that, of Wales? We know that the princedom of Wales is in the gift of the sovereign—my noble and learned friend explained that at the previous stage, but he was not clear whether it could go through the female line if that was the wish and view of the sovereign of the day. I hope that he can help me with that.
Baroness Hayter of Kentish Town
My Lords, as we said in Committee, the Duchy is about property, business, title and, indeed, money. Although we agree that those are, as my noble friend said, important issues and we would undoubtedly welcome the end of the inequality—the mistreatment, we might say, of women—as regards the Duchy, they do not concern the Crown succession and therefore, along with the noble and learned Lord, Lord Lloyd of Berwick, we feel that they are not appropriate for the Bill.
I also repeat the comment that I made in Committee in response to the comment made by the noble Lord, Lord Lexden, about the experience that that gives to a monarch. I said then that the current monarch has done extraordinarily well without having had that title. Perhaps we can take this moment to hope that she is soon fully recovered.
Lord Wallace of Tankerness
My Lords, I immediately associate myself with those wishes of full recovery to Her Majesty. I also thank the noble Lord, Lord Berkeley, for raising the issue, which gave rise to a very good debate in Committee. I certainly valued the input from those who contributed, as I have today, on what is a very important issue with a great historic heritage. The noble Lord referred to the founding charter of 1337 and offered to pass me a copy. I was not sure whether he was going to pass me a copy in Latin or the translation. My higher in Latin from 40-odd years ago is probably so rusty that the translation would be better.
As I sought to explain in Committee, the Dukedom of Cornwall can pass only to the eldest son and heir of the monarch. I will come back to the points made about the exceptions to that. Therefore, when Her Majesty was Heir Presumptive as Princess Elizabeth, she did not hold the title of Duke of Cornwall, and we believe that the position would be the same now if there were a female heir, because of the terms of the charter. It is important to bear in mind that, because of limitation to the eldest son and heir of the monarch, the title cannot pass to a younger brother. The two exceptions raised by the noble Lord, Lord Berkeley—that of Henry VIII, Prince Henry when his brother, Prince Arthur, died and of Charles I, then Prince Charles, when his elder brother, Prince Henry, I think, died—were interesting. The noble Lord made it clear that exceptional steps were taken. That almost proves the point that it was not an automatic transfer of the dukedom. In the case of Charles I—Prince Charles, as he then was—King James asked the courts to make the alteration.
I also indicated that if the monarch has a son who is the heir apparent and that son dies before the monarch leaving a son of his own, the grandson of the monarch, the grandson will become heir apparent, but will not become Duke of Cornwall because he is not the son of the monarch.
It was recognised by those who contributed to the debate that this Bill is not the vehicle for making some pretty fundamental changes to a charter that has not changed, with two exceptions over the years involving parliamentary or court intervention on a one-off basis—if you can call Henry VIII a one-off. To make fundamental change is not the purpose of this Bill.
The noble and learned Lord, Lord Lloyd, asked whether I can give a guarantee that the Government will bring forward legislation. I am afraid I am not in a position to do that. A huge amount of consultation would be required before we were in a position to do that.
As the noble Baroness, Lady Hayter, said, the purpose of this Bill is important, but very limited. I do not believe that it would be appropriate to use this Bill as a vehicle to change the charter. I take the point made by my noble friend Lord Lexden on the valuable experience which the present Prince of Wales has undoubtedly had with regard to his involvement in the duchy. I shall reiterate something that I said in Committee: although the title cannot pass to a female heir, there is nothing to stop her being actively involved in the running of the duchy or, should the reigning monarch so wish, chairing the Prince’s Council. If that was what the monarch wished, that would be entirely possible and would give that valuable experience to which my noble friend Lord Lexden referred.
My noble friend Lord Trefgarne asked about the creation of the Princess of Wales. As he acknowledged, the title of Prince of Wales is not automatically conferred on the heir apparent on his mother or father becoming sovereign. In the case of the present Prince of Wales, it was bestowed upon him some six years after the accession of our present Queen. The noble Lord, Lord Berkeley, said—my noble friend disagreed with the disparaging way it was put—the Crown is the source of all honour and dignity, and I agree with him. It would be a matter for the sovereign, but if the Crown is the source of all honour and dignity and the sovereign chose to establish a Princess of Wales, it would be a matter for the sovereign. However, I do not think it is very helpful to speculate on what might happen at a future date.
For those reasons, I invite the noble Lord to withdraw his amendment.
Lord Berkeley
I am grateful to the Minister for his reply and to all noble Lords who have taken part in this short debate. It seems to me that there is a precedent for Parliament or the courts to change what is in the original charter. It is quite clear that the sovereign, Parliament or the Government—because the sovereign and the Government are both Crown, the same Crown, under certain circumstances—can make this change if they so wish, so the whole thing probably does not matter anyway. On that basis, I beg leave to withdraw the amendment.
Lord Cormack
Lord Cormack
My Lords, I introduced a similar amendment, but in different words, in Committee. We had an interesting, and at times quite lively, debate, and I am sorry that my noble friend Lord Deben is not here because I was rather looking forward to crossing swords with him on this one.
The amendment has one very simple but extremely important aim. I am very grateful indeed to the noble Lords, Lord Luce and Lord Fellowes, both of whom spoke in the previous debate, for discussing the wording of the amendment, which is entirely my responsibility of course, before I tabled it. I am also very grateful indeed to my noble friend the Minister, who is exemplary on these matters, for taking the trouble to have a conversation on this last night.
As I say, the aim is simple. This afternoon, as on every day on which we begin our proceedings with Prayers, we pray for the peace and tranquillity of the realm. It seems very important that any constitutional measure should be conducive to the peace and tranquillity of the realm, and should anticipate difficulties. As it was with my noble friend Lord True’s amendment, there might well be no need to address these matters for many, many years. Who knows? However, the fact is that our sovereign is the Supreme Governor of the Church of England, and that is a very special position. I do not think that it could be adequately fulfilled by a regent during the life of a reigning monarch who was a reigning monarch in every other sense.
If we allow, as this Bill allows—and I do not oppose this; I want to make that plain—the heir or anyone in direct line of succession to the Throne to marry a Roman Catholic, which I repeat I accept, there has to be a provision whereby children of that union are brought up as Anglicans. I appreciate that some noble Lords might point out that the statutory requirement that I cite uses the word “Protestant” rather than “Anglican”. However, we have legislated for this in the past. It is important that if we are legislating for decades, maybe even centuries, to come—after all, the Act of Settlement was passed as long ago as 1701—we have to make adequate provision to ensure smooth continuity for the peace and tranquillity of the realm. It is in that sense that I commend this amendment to the House.
Some of us think that the Bill has been rather rushed, but let us leave that argument on one side. Some of us think perhaps that the consequences have not adequately been thought through, but let us leave that on one side. We are going to pass the Bill. I do not oppose the Bill, but I want it to be as foolproof as possible. I want it to anticipate, in so far as legislation possibly can. I want it to be a constitutional measure that will stand the test of time and of whatever circumstances might, in so far as we can possibly foresee, occur.
I repeat that am not opposed to the provision on female succession. I am not opposed at all to allowing the heir to the Throne to marry a Roman Catholic. However, we all know that there is a canon of the Roman Catholic Church that requires that the children of a union of a mixed marriage are brought up as Roman Catholics. There are many cases where that does not happen. I myself married a Roman Catholic. She in fact came over to the Church of England at a later date, but we had decided that we were going to bring our children up as Anglicans. It was obviously easier if she became an Anglican. At our wedding, I was not allowed to receive the sacrament. I make no complaint about that. I was in a very different position from the one I would have been in had I been a Roman Catholic and she, at that time, had been an Anglican.
Baroness Flather
My Lords, somewhat surprisingly, I will speak to this amendment. This is my adopted country, and I have much enjoyed living in it. I would not want to live in any other country, including my country of origin. One reason why I like living here is the ethos and the atmosphere, which are very much due to the Anglican Church. I totally support the amendment in the name of the noble Lord, Lord Cormack, because if we had a Catholic heir to the Throne, that ethos and the kind of attitude that now prevails would change.
We also have to remember that the Anglican Church came about through reformation. Reformation means reforming something. If your Lordships are prepared to think about it, the Catholic Church is in dire need of reformation at this moment. There are so many things that people object to. Certainly, the treatment of women in the Catholic Church, especially in developing countries, is not acceptable. Catholics have great influence in Africa, although there are not that many Catholics there. Children are born even if there is no food for them, and people cannot use contraception. We are living in a world that is going round and round in circles. The biggest elephant in the room is population, and yet the Catholic Church is not willing to accept that this cannot go on for ever.
To have a Catholic heir to the Throne of this country would mean that this country would not be the same as we know it. It would certainly change totally, and I would not want it to change in that way. I want this country to grow and to evolve, not to change into a Catholic country.
The Lord Bishop of Guildford
My Lords, my contribution to the debate on the amendment in the name of my good friend the noble Lord, Lord Cormack, will be somewhat technical, because I speak as one who has been much involved in the official Anglican-Roman Catholic dialogue since 1974. From time to time the Roman Catholic position on the children of so-called mixed marriages has arisen, and has been discussed in some detail, including the work of a special commission on that subject. I also declare an interest as a patron of the Association of Interchurch Families, and I have some modest understanding of both Anglican and Roman Catholic canon law.
The Government, through the Minister and in other ways, have very fairly, in my considered judgment, set out accurately the Roman Catholic position. We are also helped by the Archbishop of Westminster’s statement in this respect. According to Roman Catholic canon law, giving permission for a so-called mixed marriage is not a Vatican matter but one for what is called the local Ordinary: that is, the local bishop.
At the risk of a little canonical history, I must draw your Lordships’ attention to three documents and practice. In the old rules of the Roman Catholic Church on this subject, in the shape of the Code of Canon Law of 1917, the position was rigid and, I would say, harsh. This is no longer the case. The present code of 1983 speaks of “permission”, not “dispensation”. The old code also required the non-Catholic party in a marriage to promise that the children would be brought up as Roman Catholics. No such promise is required today. The Roman Catholic partner is asked to declare that they will do all in their power to ensure that any children are brought up as Roman Catholics, yet no sanction is applied to the canon, whereas the old code made the bishop’s dispensation for a mixed marriage dependent on the bishop’s moral certainty about the Catholic upbringing of the children. This is not the case now.
I will also touch briefly on practice in a more pragmatic way. Permissions for mixed marriages have been given even where it was foreseen that the promise could not be fulfilled in whole or in part. In making these points, I rely not only on my own past discussions of these questions over many years with officials, bishops, theologians and canonists of the Roman Catholic Church but on the authoritative interpretation of present Roman Catholic canon law offered in a magisterial commentary of no less that 1,952 pages published in 2000 by the Canon Law Society of America. It is the standard textbook in the English-speaking world.
Interestingly, on the question of the upbringing of children in these circumstances, the Roman Catholic canon lawyers quote the official Vatican ecumenical directory of 1993, which clearly indicates that the promise may not be expected to be completely fulfilled, or fulfilled at all, in every case. It states that a Roman Catholic partner can ecumenically fulfil their obligations as a faithful Catholic, short of insisting on the Roman Catholic formation of the children, because the unity of the marriage is more important. The Vatican document, quoted by the canon lawyers, speaks of the Catholic partner as,
“playing an active part in contributing to the Christian atmosphere of the home; doing all that is possible by word and example to enable the other members of the family to appreciate the specific values of the Catholic tradition; taking whatever steps are necessary to be informed about his own faith so as to be able to explain and discuss it with them”,
and–—this is the important bit ecumenically—
“praying with the family for the grace of Christian unity as the Lord wills it”.
In my judgment, this officially bears out the Government’s assurance that the Roman Catholic rules are not a block to the smooth functioning of the proposed succession rules.
I acknowledge that we are all conscious of the importance of avoiding all ambiguity for the future. I think that that ambiguity prompted a number of the amendments that we will debate today. Whether an assurance is given in the Bill, or whether it can be given now by the Minister or at a further stage of the Bill’s proceedings, I am sure that your Lordships’ House would wish all such possible ambiguity to be avoided for the future in the matter of the royal succession.
Lord Marks of Henley-on-Thames
My Lords, I oppose my noble friend’s amendment. I fully understand the Government’s decision not to use the Bill to remove the disqualification of a Catholic becoming the sovereign. However, I and others believe that the question should be revisited at some stage in the not too distant future because it is discriminatory and unnecessary. While I understand the arguments put by the noble Baroness, Lady Flather, that the Catholic Church needs further reformation in places, they do not justify a discriminatory provision. I say that even in the context of the established church, for the reasons so eloquently advanced by the noble Lord, Lord Deben, at earlier stages of the Bill.
It is my suggestion that the principle that we should adopt is that the discrimination involved in providing that the sovereign must be an Anglican should be restricted to the absolute minimum. That is why, on principle, I oppose the amendment. But quite apart from the principle, my noble friend’s amendment, and, I suggest, anything like it, would be quite unworkable. The present position is that marriage to a Catholic imposes a disqualification on an heir succeeding to the Crown. That is clear and simple. Clause 2 removes that disqualification entirely. Marriage to a Catholic does not disqualify anyone from succeeding to the Crown. An heir or a monarch can marry a Catholic without losing his right to the succession or to the Crown. That is clear and simple, again. But my noble friend’s amendment would import a proviso into that clear and simple proposal. There would be no disqualification, provided that the statutory requirement that any child of such a marriage is brought up as an Anglican was maintained.
The right reverend Prelate the Bishop of Guildford explained that the statutory or canonical requirement is very much weaker in principle and in practice than my noble friend’s amendment suggests. Furthermore, the amendment poses another problem: how would it be determined that such a requirement, if indeed it were established, was being maintained? Who would decide whether that requirement was being maintained? When, at what point in time, would the requirement need to be maintained, and when would it cease to be maintained? Furthermore, what exactly is meant by being brought up as an Anglican? By what process would a disqualification be imposed on someone in line of succession to the Throne if it were felt that the proviso was not being fulfilled and a given child was ceasing to be brought up as an Anglican? To take an extreme example, what if the child of the heir to the Throne and his or her Catholic spouse, having been brought up as an Anglican, chose to espouse Buddhism while at school?
The problems are endless. I appreciate that my noble friend who moved the amendment did not suggest that it was this wording or nothing, but when you look for an alternative wording, the concepts are so fluid that they necessarily import an uncertainty and ambiguity that would be thoroughly undesirable. For that reason, I suggest that the Bill should remain unamended.
Lord Fellowes
My Lords, I find myself in something of a dilemma in speaking briefly to support this amendment. I support both the amendment as presently worded and the measures behind it. I still believe that the sooner that we have greater clarity and more explicit commitment from the Roman Catholic Church as to its determination to respect the rule governing the upbringing of the heir to the Throne, the better. That said, were this amendment to be pressed and passed it might well raise the spectre of the reopening of negotiations with the other 15 Governments of Her Majesty’s realms, and that I believe to be undesirable.
I prefer to regard this as a constructive and helpful probing amendment which makes explicit what is at present implicit in the Bill. As such, it sends the right message even if withdrawn. If it is not withdrawn and comes to a vote, I will support it, with some misgivings.
Lord Crickhowell
My Lords, I sat through the debate in Committee and listened to the previous effort of my noble friend Lord Cormack, which was fairly effectively demolished by my noble friend Lord Deben. I am puzzled by the amendment that he has now produced because its argument was effectively dealt with by my noble friend Lord Deben when the previous amendment was tabled. Unless my memory is wrong, the Act of Settlement and the Bill of Rights say nothing about upbringing; they merely say that the sovereign has to be Protestant.
As my noble friend Lord Deben and others have pointed out, you could be brought up as a Muslim or indeed in any other faith, but there is nothing to say that you will stick by that decision. As you grow older, you may take your own decision as to what your faith is or whether you have any faith at all. However, if you become the sovereign, you have to be a Protestant; that, surely, is the law. I therefore cannot see that the amendment put forward by my noble friend and all the interesting and complicated points raised by the right reverend Prelate are relevant to this Bill, which concerns not upbringing but whether or not the person in question—male or female—is a Protestant.
No doubt the individual concerned would consider very carefully his or her attitude to religion and what his faith was before taking a final decision on faith, because they would know that if they were not Protestant they could not succeed to the Crown. Therefore I do not see that this upbringing question is relevant or that my noble friend’s amendment has the effect and consequence that he seems to think it has. For that reason, I cannot support it.
Lord Walton of Detchant
My Lords, my intervention will be exceptionally brief. I speak as a lifelong member of the Methodist Church who attends an Anglican Church at present. A useful and helpful concordat has been developed to achieve increasing collaboration between the Anglican and Methodist Churches. Is it totally out of the question that someone brought up as a Methodist might not ultimately become the Governor of the Anglican Church? I do not believe that it is. This is one of my concerns about this very interesting amendment, so very well proposed by the noble Lord, Lord Cormack. I would love to have an answer to that question.
Lord Lea of Crondall
My Lords, like others, I am interested to see how much clarification emerges from consideration of this amendment. I was very interested to hear of the policy shifts in the Roman Catholic Church. I was not aware how far they had gone. I very much welcome the fact that Anglicans and Roman Catholics can agree on the line described by the right reverend Prelate the Bishop of Guildford, so I will not support the amendment.
Lord Trefgarne
My Lords, I support my noble friend’s amendment; it goes in the right direction. It may not be perfectly worded, but the principle is right.
Lord Kilclooney
My Lords, I am not an Anglican; I am an Irish Presbyterian. Presbyterianism is the main religion in two parts of the United Kingdom—Scotland and Northern Ireland. The head of the Presbyterian Church, the Moderator, is not the head of a sovereign state; nor is the head of the Methodist Church the head of a sovereign state. That is where the crux of the matter rests.
Noble Lords may recall the crisis confronted by the Social Democrat Government in Belgium when the late King Baudouin was forced to abdicate. At that time, the Social Democrat Government in Brussels introduced social legislation; I forget whether it was on family planning, divorce or another family issue. They presented the Act of Parliament to the King for royal assent. The King said that he had two loyalties—to the state of Belgium and to the Vatican state—and he had to make a decision on which got priority. He came down in favour of the Vatican. As a result, he had to abdicate. A regent was appointed who then signed the Social Democrat Act of Parliament, and then the King was restored to power. It was a very neat exercise. However, it is also a warning and a lesson to the United Kingdom.
I found the right reverend Prelate’s account of the talks between the Roman Catholic Church and the Anglican Church very instructive and helpful, but I still think that an area of ambiguity remains. That being the case, although I am not an Anglican, I come down in favour of the amendment.
Lord Elton
My Lords, I entirely agree with my noble friend in his attempt in the amendment to achieve clarity. However, as the noble Lord, Lord Marks, has demonstrated, it would not do that because it could not work in its present form. Whether or not anything can be done between now and Third Reading to simplify a very complicated process in the Bill, I do not know. However, for that reason, I cannot support my noble friend.
Lord Burnett
My Lords, I have not spoken before in this debate and I hope that noble Lords will forgive me for being an interloper. However, I am a Catholic and should like to thank the right reverend Prelate the Bishop of Guildford as well as my noble friend Lord Marks of Henley-on-Thames for their contributions. Obviously—by implication, anyway—I oppose the amendment.
Baroness Hayter of Kentish Town
My Lords, I join others in thanking the right reverend Prelate the Bishop of Guildford for the clarity and fullness of his contribution, which was appreciated around the House.
The noble Lord, Lord Cormack, seemed to imply that allowing Catholic marriage would somehow endanger the Protestant succession. I think he is wrong. As it will remain the case that no Catholic may succeed, or indeed anyone who is not in communion with the Church of England, the noble Lord need not have concerns on that basis. We therefore see no need to support the amendment, which goes further by forbidding any child—not simply the eldest who is likely to inherit—to be brought up as, for example, a Methodist, as the noble Lord, Lord Walton, mentioned.
It is also unclear as to what would happen if the sixth or seventh child was brought up as a Methodist. Are we going to depose the monarch or expect the monarch to abdicate because one of their children was brought up as a Methodist or in the Jewish faith? There are many other questions. Could the monarch decide that they would prefer the Crown to pass to a sibling if they wanted the child to be brought up other than as an Anglican? Some of these questions were better enunciated by the noble Lord, Lord Marks.
We have moved on, even in this House, since 1700. We are looking forward to the birth in the summer of a babe born to an Anglican couple—a babe whose marriage is unlikely to take place for about 20 years. Their babe may, for the sake of argument, be born a few years after, in the year 2037, which will happen to be 700 years after the charter establishing the Duchy of Cornwall. We have heard warnings that we must think to the future, but I think that we can leave it to our heirs and successors in 2037 to decide at that point what is good for the country, the other realms and the Crown. We will not be supporting the amendment.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Cormack for introducing this amendment and allowing the House a further opportunity to discuss what, from our debates at Second Reading and in Committee, is quite clearly a very sensitive subject and one that quite properly has engaged the interest and concern of a number of Members of your Lordships’ House. Like the noble Baroness, Lady Hayter, I particularly thank the right reverend Prelate the Bishop of Guildford for giving us the benefit of his rich experience and giving us an understanding of how these matters are approached by the Roman Catholic Church. It has helped to inform our debate.
As I understand the position, my noble friend Lord Cormack seeks to give guidance to any royal couple who find themselves in a mixed Protestant/Catholic marriage as to the expectation that a child be brought up as a Protestant if they are one day to accede to the Throne. Perhaps the first thing I should make clear—indeed, my noble friend Lord Crickhowell summed it up very well—is that the relevant legislation simply requires the sovereign to be a Protestant and in communion with the Church of England. There is no statutory provision that the heirs should be brought up as Anglicans. The important point is that the sovereign be a Protestant. Therefore they could be brought up as a Methodist or, like my noble friend Lord Kilclooney, as a Presbyterian. That is the position. The Act of Settlement also requires the sovereign to be in communion with the Church of England. There is no statutory provision with regard to being an Anglican.
That point should also reassure the noble Baroness, Lady Flather, if it is reassurance she is seeking, and indeed the noble Lord, Lord Kilclooney, that there is nothing in this Bill that changes the position that the sovereign must be a Protestant. Given that requirement, the expectation is also clear that should royal parents in a mixed marriage wish for their child one day to accede to the Throne then they must be Protestants. I am sure that it is a matter that a couple will consider very carefully indeed. As was clear from what the right reverend Prelate said, couples throughout the land in mixed marriages have these considerations. As the representatives of the Bishops’ Conference of the Roman Catholic Church said to me when I met them, the overriding concern is the indissolubility of marriage and unity of the partnership and, as the right reverend Prelate said, the importance of praying with the family for the grace of Christian unity as the Lord wills it. That is the background. It is a choice. It is a position that royal parents know they must address.
My noble friend Lord Marks very eloquently and very concisely highlighted the serious practical difficulties that could arise if my noble friend’s amendment were to be incorporated into the Bill. Who would determine whether the upbringing continued to be Anglican? It is important to note the consequences of my noble friend’s amendment. As drafted, it would not only be the child’s prospects of succession that were affected if they were not being brought up as an Anglican; it would also mean that the parent who was in the line of succession to the Throne would have to drop out if the maintenance of the upbringing was not continued. As the noble Lord, Lord Fellowes, indicated, that would affect the succession to the Throne as someone would have to cease to be in the line of succession and that would engage the other 15 realms. Therefore it is not something that is purely a domestic matter.
I note that this amendment would apply to children born of mixed Catholic/Protestant marriages only, not, for example, to a mixed Protestant/Muslim marriage. The intention of this Bill in one of its parts is to remove a specific piece of anti-Catholic legislation with regard to the bar on heirs to the Throne marrying Catholics. It is a bar that applies to Catholics only and to no other faith. I believe it would be unsatisfactory on the one hand to repeal a piece of discriminatory legislation only to replace it with a new stricture that would apply only to those entering into mixed Catholic/Protestant marriages. Indeed, at Second Reading my noble friend Lady Falkner of Margravine highlighted something that exists today—that is, people entering into mixed Protestant/Muslim marriages.
Lord Empey
Can the noble and learned Lord clarify one point concerning the relationship between this legislation and the other Commonwealth countries and what the implications of change would be?
Lord Wallace of Tankerness
My Lords, this is an agreement that has been reached with the other Commonwealth countries. This question may arise in relation to later amendments, but the preamble to the Statute of Westminster Act 1931 gives an expectation that in matters of succession to the Crown there will be the engagement of the other realms of which the Queen is head of state. It is not a matter of binding law but it is certainly an expectation and one that we have considered to be very important in taking forward the proposals in this Bill. As I indicated, the implication or consequence of my noble friend’s amendment is that it would affect the succession, and we would need to consider that with the other realms of which the Queen is head of state.
Lord Cormack
My Lords, I am very grateful to everyone who has taken part in this short but fairly vigorous and interesting debate. I am particularly grateful for the support of the noble Lords, Lord Fellowes and Lord Kilclooney, and others. In response to the noble Lord, Lord Walton of Detchant, it is of course possible to be both an Anglican and a Methodist. The two churches are in communion, so there is no impediment there at all.
I am obviously grateful for the speech of my noble and learned friend the Minister and I shall bear in mind everything that he said. However, whatever is in this Bill, it remains in effect, in his words, discriminatory because there is an insistence that the heir to the Throne cannot be a Roman Catholic. I personally accept that and support it, as will have been apparent from my earlier remarks, but you cannot have it both ways. With this amendment, I was merely seeking to remove an element of ambiguity. I am particularly grateful for the excellent exposition of the right reverend Prelate the Bishop of Guildford, but he, too, ended his speech by saying that he would welcome the removal of ambiguity. He hoped that either in the Bill or in some other manner—perhaps in an exchange of letters or whatever—there could be some form of wording that would make it less ambiguous than it is at the moment. I am grateful to him for that because that is an extremely important point.
Obviously there are strong feelings in all parts of the House and around the country about this. I am conscious of the fact that the noble Lord, Lord Fellowes, who pledged his support, also said that he would reluctantly go into the Lobby. I will not make him reluctant tonight because I do not propose to press the amendment to a Division. There is still scope for further discussion. I was delighted to hear from my noble and learned friend that Third Reading will not come until after the Easter Recess. That gives all of us with an interest in this and other matters relating to the Bill, such as my noble friend Lord True, plenty of opportunity to consult, discuss and then decide whether or not it would be prudent to table another amendment at Third Reading. I certainly have not made up my mind on that score.
I will not detain the House further by referring to every speech but there is the clear issue before us that we are dealing with the succession to the Crown. It has been decided that gender should be no impediment as far as the first born is concerned. It has been decided that marriage to a Roman Catholic, subject to the sovereign’s permission, can go ahead. It has also been reiterated by my noble and learned friend that anyone succeeding to the Crown cannot be a Roman Catholic. Although he introduced—as did my noble friend Lord Marks of Henley-on-Thames—references to other religions, that is not what we are concerned with in this Bill. We are concerned with what is explicitly in the Bill. I still believe that it would be helpful if we had some form of safeguard either in the Bill itself or in an exchange of published letters with the Roman Catholic hierarchy, but we can all reflect on that over the coming weeks. With that, I beg leave to withdraw the amendment.
Lord Lang of Monkton
Lord Lang of Monkton
My Lords, in moving the amendment I return to a matter that troubled me both at Second Reading and in Committee, namely the provision in Clause 3 to replace the Royal Marriages Act 1772 with a new requirement that only the first six persons in the line of succession to the Throne will require the monarch’s consent to their marriages. In my view that number is too small, and my amendment would increase it to 12.
The provision to which the clause will apply is much wider than before. Until now only Catholic marriages were specifically barred. Henceforth, consent can be withheld in respect of any religion, or for any other reason that the monarch, in consultation with his or her Ministers, thinks fit. That is the first major, and largely unadvertised, change that the clause makes. The seeking of consent itself is sensible in principle for a host of reasons, but it is the partial relaxation of the bar on Catholics that makes it necessary. To allow those in the line of succession to the Throne to marry Catholics while at the same time leaving in place an absolute ban on Catholics from occupying the Throne sets a collision course that sooner or later could cause trouble for the monarchy.
Clause 3, by implication, acknowledges that and seeks to provide some protection. However, my contention is that it does not provide enough. I am trying to resist the temptation to delve back into history again, having overindulged in Committee, but the more one considers this Bill and the 1772 Act, the more one realises what a minefield the Government are in danger of straying into. If the list of six now proposed had existed for the seven sons of George III, they would all have been members at some stage, but not all at once. Prince Augustus Frederick, sixth son of George III, and periodically sixth in line to the Throne, would have been in and out of the club three times in his life; yet he still managed to marry twice, both times without consent and both times during what would have been a period of membership of the six; and both marriages were declared void in terms of the 1772 Act. However, he did stay in the line of succession. Two other princes contracted marriages that were also voided by the Act. Three more princes stayed unmarried until middle age.
All of that suggests to me that the 1772 Act had a few unintended consequences, and it was not very effective on the marriage front. But it did serve a useful purpose, because although the royal dukes forfeited their unapproved marriages, they did not forfeit their places in the succession. Despite everything, that helped to maintain stability. The Bill before us does the direct opposite. It turns that around so that unapproved marriages will be allowed to remain in place—however unwise—but the right to the succession is lost. That loss is a substantial constitutional change, with potentially more unintended consequences, especially when linked to the relaxation on royal marriages.
At Second Reading, my noble and learned friend said:
“We retain the tradition of monarchical consent”.—[Official Report, 14/2/2013; col. 783.]
I respectfully suggest to him that he is not so much retaining it as turning it on its head. Before it was a measure confined to marriage to Catholics; now it is marriage to anyone of any religion or for any other unspecified reason. Before the penalty was the voiding of the marriage; now it is the loss of the right to ascend the Throne. These are constitutional changes of import. I do not believe that King George III, even in his angriest and most despairing moments at the behaviour of some of his sons, would have contemplated the extreme option of barring them from the succession. Yet it is done in this Bill, and not a word of explanation for such a change, so far as I could trace, has been offered either in this House or in another place.
Against that background my amendment seems impossibly modest. With these major changes, the future becomes harder to predict. However, what does seem clear is that just as a short list of six would not have been enough in the past, neither will it be enough in the future to protect the Crown from trouble. It is at the future that my amendment is directed.
I invite your Lordships to consider the potential case—a rather frivolous one, many years from now—of an imaginary granddaughter of the monarch, second in line to the Throne, who has a baby. Her first cousin, sixth in line, telephones her and says, “Thrilled about the baby. Do have another one soon so that I can marry that gorgeous Argentinean playboy I met last month in Ibiza”. It is frivolous but feasible. That would not happen if she were number six in a list of 12; and if something similar did happen with the 12th in line, it would be much further from the Throne and would have much less impact.
We tend to think of the succession in terms of Kings and Queens who have already reached the Throne, so for the most part it all looks relatively orderly and stable, looking back over the past couple of centuries. However, the line of succession is quite different. It can change rapidly and repeatedly. It can sometimes be unpredictable and even almost chaotic, as King George III’s experience demonstrated. He and Queen Victoria both exemplified the view that large families secured the succession, but there were certainly downsides to that. Now, and perhaps in the future, we tend to see smaller families but with longer life expectancy—several generations of them in the line of succession, a point made perceptively by the noble Earl, Lord Erroll, in Committee.
In that situation it is not difficult to demonstrate that all six places requiring marital consent can be filled by the heir apparent and his or her own children and grandchildren. That leaves all of the heir apparent’s siblings and their children outwith the ambit of marital consent. Can it be right that by the time they reach marrying age some of the reigning sovereign’s own children might not be covered by the terms of this Bill?
My noble and learned friend also said at Second Reading that he wanted to limit the monarchical consent,
“to the people who could feasibly assume the Throne”.—[Official Report, 14/2/2013; col. 783.]
So do I, but I ask him: is it not feasible that the siblings of the heir apparent might also, in some circumstances, assume the Throne? Should we not provide for that?
If some tragedy should befall the heir apparent’s family—and here I am giving a far from frivolous example —attention would turn to the monarch’s other children. Who could say how many of them or their children, beyond the reach of this Bill, may by then be married to Catholics and raising Catholic children or married to people of any other religion that is deemed unacceptable? That is when the line of succession would start jumping further out, and the further out it goes, the bumpier it gets and the more difficult it may become, after possible en bloc disqualifications, to find potential heirs who could meet the terms and obligations of a potential heir to the Throne.
My noble and learned friend accused me in Committee of positing a “catastrophic but remote hypothetical” event. However, I simply do not accept that. Nor do I accept that it is necessary or appropriate for me to spell out all the myriad risks and dangers that can and might arise in this day and age. We must be realistic, and not just hope for the best.
For all its faults, the 1772 Act brought certainty, if not to marriage at least to the succession. Now, with the repeal of that Act and its replacement by the Bill before us, it is the other way round: the marriages are okay but the line of succession is not.
Lord Hamilton of Epsom
My Lords, I have not contributed to this debate until now but was so moved by the oratory of my noble friend Lord Lang when he first put this prospect forward that I really thought it was important to back his amendment. There is no doubt but that it is an extremely modest amendment. I come from a position of serious disquiet, knowing that the person who is really pushing this Bill through Parliament is the Deputy Prime Minister. That adds a whole dimension of worry that the thing has been cobbled together in a rather hasty way. The whole idea of six members of the Royal Family being in this bracket is a number that came to him in the middle of the night and he thought, “Let’s just stuff it in”. I do not think that any serious thought has been given to this at all. I share many of my noble friend’s concerns that we live in a very dangerous age and that awful things could happen to six members of the Royal Family. Then, of course, we would all look incredibly stupid and six would be a number that was obviously much too small.
This is a very modest amendment and I hope that my noble friend Lord Fellowes is not right that this law will have to be processed through all the Commonwealth Governments if we change it. I refer to the noble Lord, Lord Fellowes, as my noble friend, although he sits on the Cross Benches. If you have shared a flat with somebody, you cannot really think of him as anything other than your noble friend. I hope that that is not a concern but I do think that this is a very modest and very sensible amendment and I sincerely hope that this can be taken on board.
Lord Thomas of Swynnerton
My Lords, I, too, support the noble Lord, Lord Lang, with his intelligent and thoughtful amendment. Can the Minister give some background to the situation? I, and I daresay your Lordships, would like to know how many times since Her Majesty the Queen came to the Throne have there been applications for marriages by descendants of King George III and how many times these marriages have been turned down. That would be interesting. As we are all interested in historical matters, this would be at least one contribution. It may seem an indiscreet suggestion but nevertheless it would be very useful to know.
Lord Deben
My Lords, I have been somewhat controversial during this debate so I cannot claim the virginity of my noble friend Lord Hamilton. The purpose of this Bill is to rid us of discrimination. I am sad to say that we have not proceeded as far as I would have hoped, but that is obviously going to be very difficult. But in so proceeding, it ought not to leave us with difficulties in the future. The purpose is to write something that is going to work, however odd the circumstances.
What we are trying to do here is to make decisions that are unconnected with the personalities involved. That is why we want to do this at a point where it does not affect any individual. We have been arguing that we do not want a situation in which we have to make some immediate decision because this Bill is defective, and thereby have a public argument about whether a particular person in particular circumstances is suitable to be an heir, or one of the possible heirs, to the Throne. That is what we are trying to avoid.
I put it to my noble and learned friend the Minister that we have had enough examples suggesting that six is too small a number so as to make it happier if we have a larger number. Given that we accept that six people have to ask permission, it does not seem absolutely dreadful that 12 people have to ask permission. I do not quite understand why it is six. I agree with my noble friend that six does not seem to be a particularly valuable number. I thought it was unnecessary to suggest that the figure was brought into doubt because of the progenitor. We can forget about the progenitor of this; it is simply that six does not seem to have any particular connection with it.
Lord Elton
My noble friend has had even more ministerial experience than I have. Has he not observed that once a number is on green paper, it becomes sacrosanct?
Lord Deben
There comes a point at which people think that there is some nobility about a figure that has been chosen, even though its history may be much less noble than the guise it assumes. This does not seem to be something that the Government should argue about.
I have to say something rather serious to my noble and learned friend. I have sat in this House for two and a half years now and the number of times I have come across things on which it would be very easy for the Government to give way—things that do not really matter but which might just be helpful, but where they solidly go on defending the indefensible—is really very peculiar.
Lord Deben
We had a debate on caste recently. It was quite clear that the Government could have given way. I have now discovered that almost everybody who voted against me on that occasion did so because they did not know what the debate was about, so if we bring it back the only people who will vote for it will be in the Whips’ Office. The Government could have given way on that without any difficulty at all. The same is true about so many things.
Perhaps my noble and learned friend could take one message back: there are some things where quite a good case has been made; there is no real downside to it, so why do we not do it? Why is it so necessary to assume that there is something so important about this figure? Would it have been all right if my noble friend Lord Lang had suggested seven or nine? At what point are we allowed to say, “In our judgment, this is a better figure”? I just want to say to my noble and learned friend: in my judgment this is a better figure. Looking at the various faces all around, most of us here would not revolt if 12 was put in rather than six, so can we please have it?
Baroness Butler-Sloss
My Lords, I just wanted to ask a rather more general question of the Minister. At the moment civil partnership is not part of this Bill. If the same-sex marriage Bill is passed, will that mean that same-sex couples would also require the consent of the Queen or her successor?
Lord Mancroft
My Lords, I am delighted to support my noble friend’s amendment. I start by saying to my noble friend Lord Hamilton that I have not always shared flats with people who are noble and certainly not always with my friends, but that is slightly beside the point. When legislating, we should always adopt the precautionary principle. The amendment before us is not a matter of principle; the principle is in the Bill: that the sovereign should retain consent. The amendment is merely about the practicality of numbers.
My noble friend in moving the amendment talked a bit about the past, about Queen Victoria’s family and George III’s family. I have a faint connection with a 20th-century royal family which, like many of them, no longer has a kingdom. I happen to know that there was some unhappiness in that family and did some research to look at it.
Between 1933 and 1994, which is 61 years and the length of the current sovereign’s reign, there were three generations and three successions in the German royal family, but, during that time, 17 individuals were removed from the line of succession for marital reasons and, in that, seven marriages were removed from the list. They are the only ones whom you can see by doing a little bit of research. Those 17 individuals all had children and grandchildren who would have been affected. So that is an incredibly short period of time and an enormous change, mostly for religious reasons, because that family, too, had difficulties over Catholicism and Protestantism.
It is worth remembering that when this Bill was mooted and was in the newspapers, everybody drew attention to the fact that if it had been passed during Queen Victoria’s reign, her eldest child, Princess Vicky, would have become Queen of England and the Kaiser, whom she married, her consort. The Kaiser would have been King of England and emperor of Germany. The family that I have been talking about would have been our Royal Family in this generation, with their 17 individuals and seven marriages moving on and off the list of six.
There are indeed differences, as my noble friend said, between the 18th, 19th and 20th centuries. There has of course been a decrease in mortality, particularly infant mortality—thank God that we have far less of that than they did in those days. However, we have an increase in marriages. A friend of my father once asked him what my sisters did. He said, “They marry, long and hard and often”. Quite a lot of people do that in the 21st century. More and more people have more and more marriages. One of the princes in the German royal family, Crown Prince Wilhelm, an eldest son, was married four times and had goodness knows how many children. That is not very long ago. I hope, and we all pray, that there will not be tragedies in the Royal Family—but there have been. We all know what happened to Lord Mountbatten and his family, not far from the sovereign. We hope that that will not happen, nor that it will be illness or death, but, undoubtedly, there are changes in families. Those 17 individuals were not all direct father-son-grandson in 60 years; many of them were siblings, and those siblings had children and grandchildren.
No one suggests that we go back to the idea of all the descendants of King George II, hundreds of people, having to get their marriages approved, but, under the precautionary principle on which we legislate so often, six seems rather a small number.
Lord True
My Lords, I have my name on this amendment, which I support strongly. When I intervened in Committee, I pointed out rather flippantly that if this provision goes through and the child that we expect is born, the Deputy Prime Minister will have to explain to one daughter of the Duke of York why she has to ask permission but not the other. That explains one of the many illogicalities which might arise from the number six.
When one legislates, one should go with the grain of what the public perceive to be reasonable. Why did we ever have this sort of legislation in the first place? It was because the then monarch was concerned about the impact on the image on the Royal Family of marriages which were being undertaken within the Royal Family. He cast the legislation wide because he had a wide family; indeed, it was not his children’s marriages that originally concerned him, hence it was thrown back to King George of the earlier generation. I am pleased to say that our Royal Family is not viewed in the same way as was the Royal Family in the 18th century.
Lord Lexden
My Lords, I support this amendment very strongly. Briefly, my points follow closely those of my noble friend Lord True. By extending from six to 12, the measure would reinforce the sense of family and the obligations that go with it. These are especially important where the Royal Family is concerned. In giving approval for the marriages of his or her blood relatives, the monarch can surely expect to bind them more closely to the Crown and the public duties that it imposes. For that purpose, it is surely appropriate to have 12 blood relatives in this category, rather than six.
Bagehot, the great Victorian constitutionalist, laid great stress on the benefit that Britain derived from a Royal Family of significant size which, under Queen Victoria, inspired great respect, following the disreputable family of George III. I suggest that to maintain and strengthen that tradition, it would be right to increase to 12 the number in the line of succession who would need to seek the approval of the monarch.
Lord Brown of Eaton-under-Heywood
My Lords, I, too, support this amendment. Twelve seems to me an eminently sensible and, indeed, a hallowed number. There were 12 tribes of Israel, 12 apostles, 12 members of the jury and there used to be 12 pence in the shilling. Perhaps more importantly, one asks: what is the downside of 12? If those who are ranked seven to 12 do not rate their chances of succession, or if perhaps they do not want to succeed, their remedy is perfectly simple: they do not ask Her Majesty for consent and the statute automatically then disqualifies them. It is only Her Majesty who might suffer the problem of having to consent—if consent is sought—to so many more marriages and I am sure she would not mind.
Lord Cormack
My Lords, I strongly support my noble friend. He made a splendid speech in Committee and again this afternoon. Any amendment that can unite my noble friend Lord Deben and me deserves the support of the House. I hope that the Minister will not attempt to resist it and will heed the sensible words of my noble friend Lord Deben. What is the point of resisting? This is not a point of principle, but of practicality. To have 12 builds in an extra safeguard and rules out the possibility of a different sort of ambiguity, to which the right reverend Prelate referred in his earlier admirable speech. No one has spoken against this amendment. I am sure the Minister will incur not only the admiration and good will of the House, but the admiration of those outside who are following these proceedings. If by chance my noble friend does not feel able to accept the amendment, I hope that my noble friend Lord Lang will press it.
Lord Elton
I speak only to add weight to the perception that I hope that my noble and learned friend is getting that the whole House supports the amendment, and that he will have a major task in showing us significant downsides to prevent all of us flocking around my noble friend.
Baroness Hayter of Kentish Town
I will live up to what the noble Lord, Lord True, expects and disappoint him. Not everyone was here in Committee, when this was discussed at greater length and there was an amendment to reduce the number—I think to four, or even to zero—so it was not as clear-cut then that the number should be increased. Indeed, the number six is not the full number of people who will necessarily always have to seek permission, because they have to seek permission at the point at which they marry. It could well include far more people. Someone who may not be heir to the Throne within the first six at any one point could be in that position by the time that they want to marry. It applies at the time of their marriage, so more people may well have to seek permission.
As we said when this was discussed at greater length in Committee, with more evidence given than perhaps all noble Lords have had a chance to read, we feel that this is not an exact science. We know that five were probably as many as were ever needed, so we thought that six gave a useful additional margin.
We certainly do not think that it is sensible to involve an unnecessarily large number of people in having to seek permission of the Crown in order to marry when they have no realistic possibility of inheriting the Throne. We do not know on what grounds a monarch would debar someone from a particular marriage if it was not about religion, although one noble Lord suggested that. We do not know what sort of reasons a couple would have to consider when deciding whether to go ahead with the marriage and give up their place in line. It seems to us strange to put a young couple through that when there is no good reason for doing so.
I should add that although this was not in the original Perth agreement, it is part of the agreement that has been discussed with all the other countries, with all the hard work done on everyone’s behalf by New Zealand. It would need an enormous amount of unscrambling to change the number now when it has been discussed at great length. I am sure that it is in no way the intention behind the amendment that it should be wrecking or delaying. However, I fear that changing the number from six would have that effect. I am sure that we would not want to risk the other really important parts of the Bill, the two bits that the whole House strongly supports—the succession to the Crown of the first born, should it be a woman, and the ability of someone in line to the Throne to marry a Catholic—by delay. We support the continuation of the Bill as it stands.
Lord Wallace of Tankerness
My Lords, again, I thank my noble friends Lord Lang, Lord Hamilton and Lord True, who have signed the amendment. My noble friend Lord Lang raised this issue at Second Reading and again in Committee and on each occasion stimulated a very good debate. It is clear that a balance needs to be struck somewhere between mitigating a remote but potentially catastrophic event, on the one hand, and the risk of impinging unnecessarily, as the noble Baroness, Lady Hayter, said, on the lives of those who are more distant from the Throne.
My noble friend Lord Lang said that there were two differences in what was being proposed from what was there before. I think he said that, before, consent under the Royal Marriages Act 1772 related to religion and marriage to a Catholic. In fact, it went much wider than that. As my noble friend Lord True said, it was George III’s concerns about his siblings that prompted it. It was not actually to do with religion because the provision on religion was such that if you married a Catholic, you lost your place in the line of succession. I suspect that you also still had to get consent, being one of the descendants of George II, otherwise your marriage, albeit one that took you out of the line of succession, would have been void. Nothing is changing there. It is not related solely to religion.
My noble friend also said that the other change is that rather than the marriage being void, as is the case under the 1772 legislation, the person and their descendants from that unconsented-to marriage lose their place in the line of succession. Hitherto, failure to get consent did not cause the individual concerned to lose their place in the line of succession, as the examples given by my noble friend indicated, but their children did not have any place in the line of succession because by definition the marriage was void. Therefore, the children could not take up any place in the line of succession. Being the children of a void marriage, they would not be legitimate.
This change has taken place first to reduce the very large number of people who are today the descendants of George II. In response to the noble Lord, Lord Thomas of Swynnerton, I just do not know how many consents Her Majesty has given during the 61 years of her reign. If my memory serves me correctly, I think I said in Committee that no one seems to have any record of consent having been refused. I would not like to suggest that information about how many consents have been given might be available. The fact is that as each generation comes to bear another generation, the number of descendants of King George II increases. Indeed, it may well be that some of them do not know that they are descendants of George II and may be contracting marriages which are void. That is one of the principal reasons why we wish to change this, so that the consequence of failure to get consent or of consent being refused is not that one’s marriage is void, which has considerable consequences for the couple concerned and their family, but rather that the person loses their place in the line of succession.
As the House will be aware, I indicated that we believe that the six steps provide sufficient proximity to the Throne. The noble Baroness, Lady Hayter, made an important point about consent at marriage: people who at the time of the consent for their marriage were in the first six may subsequently no longer be within the first six in line to the Throne, so the number at any one time who have had to receive consent will almost certainly be greater than six. If one looks at the 240 years of history since the Royal Marriages Act 1772 was passed, the person furthest away from the Throne at the time of marriage who subsequently ascended the Throne was William IV, who was third in line to the Throne, so the position as it stands provides twice as many steps away from the Throne than have ever been necessary in more than 200 years.
Lord Crickhowell
The Minister referred earlier to a possible catastrophic but remote event. The fact of the matter is that in this day and age, very sadly, catastrophic events are too common. Members of the Royal Family are by their nature public figures and they are often together. The possibility of a catastrophic event should be taken into account. I, for one, am still not at all convinced by the argument from the Front Bench and am inclined to support the amendment as it stands.
Lord Wallace of Tankerness
My Lords, the point I made is that we need to provide a balance between militating against a potentially catastrophic event and the risk of unnecessarily impinging upon the lives of those who are more distant from the Throne. While it is reasonable for different rules to apply to the Royal Family, a requirement to obtain consent to marry is a real restriction on people and as such a very strong argument should be made to extend it. I have heard various people say why six is not acceptable. However, I have heard no reason for 12, with the possible exception that it is the number of apostles or the number of former pennies in a shilling. It is also said that it is the number of jurors on a jury, but of course in Scotland that is 15. It is not a question to which there is a mathematical answer.
Lord Elton
My noble friend has moved on from the point that I wanted to pick up on. He is treating the necessity of getting permission from the Crown to marry as if it were a great disincentive to marry and a great burden for these people to suffer, but they are not going to be forbidden to marry; they are only going to be told that they are not in line for succession to the Crown, and I should think a great relief to many of them that would be.
Lord Wallace of Tankerness
I hear what my noble friend says, and he makes that point well. It is, indeed, as I and the noble Baroness indicated, an additional requirement and impinges on the lives of individuals. The Bill is trying to seek that balance. It is not a question to which there is one, and only one, right answer. As the noble Lord, Lord Deben, said, it is a matter of judgment. While my right honourable friend the Deputy Prime Minister would no doubt love to take credit for everything that has been put into the Bill—he has ministerial responsibility for constitutional matters and this legislation—I pay tribute to my right honourable friend the Prime Minister who, like his predecessor, sought to get agreement with the other realms and was party to the announcement of the agreement that was made at Perth. The noble Baroness, Lady Hayter, rightly says that this was not part of the Perth agreement, but it was flagged up at the Heads of Government conference in Perth that we would be seeking changes to the Royal Marriages Act 1772. That was followed by Prime Ministerial correspondence, on which agreement was reached on the number six.
My noble friend Lord Lang referred to a letter to the noble Lord, Lord Trefgarne, in which I said that procedural matters would not require the consent of all the other realms. Indeed, there are procedural issues in Clause 3 as to how, for example, the consent has been obtained and signified. However, substantive matters on the succession to the Crown—to which I referred in the debate on the previous amendment and which get into the spirit of the preamble to the Statute of Westminster Act 1931—would require the agreement of the other realms. This impinges on the succession to the Crown. Indeed, the New Zealand legislation, of which I have a copy somewhere here, specifically makes provision for six with regard to those who would require the consent of the sovereign to marry.
The noble and learned Baroness, Lady Butler-Sloss, asked about civil partnerships. Civil partnerships do not require monarchical consent, as a civil partner does not necessarily assume the public role expected of a spouse as sovereign. She also raised same-sex couples, which came up in an earlier amendment moved by my noble friend Lord True. The Government believe that marriage as stated in Clause 3 of the Succession to the Crown Bill means marriage as defined by the jurisdiction in which it takes place. If we take this away from the issue of same sex—to take away from, as my noble friend Lord True said in moving his amendment, the controversy that might surround that—different jurisdictions very often have different rules on marriage. As a simple example, the age for marriage without parental consent was different from that in England. If it was a legitimate marriage in the law of Scotland, it would be recognised as a marriage, albeit that it would not necessarily have been a legal marriage under the law of England.
Lord True
Before my noble friend leaves that important point—and I accept what he says about civil partnerships —is he saying that the Government are knowingly legislating for a position where the monarch’s Ministers in one country may advise that a same-sex marriage should be disqualified from the succession to the Throne, but in another of the Queen’s dominions, the Crown’s Minister will give opposite advice? Is that what the Government are recommending to Parliament?
Lord Wallace of Tankerness
My Lords, that is not what I am saying. It depends on the jurisdiction of the place where the marriage is contracted. I believe I am right in saying that under the law of Canada, same-sex marriage is legitimate. If, therefore, hypothetically there was a same-sex marriage by someone perhaps well down the line of succession to the throne in Canada as of today, and that was lawful under the law of Canada, that would be a marriage. It hat is not a question of Canadian Ministers giving consent, which might be different because the law in the United Kingdom is different. There might even be different laws in the near future between Scotland and England, depending on the timing of legislation. It is not a question of Ministers giving consent; it is the actual law that is in place in a particular jurisdiction at a particular time.
It is a matter of judgment. I say that quite frankly to the noble Lord, Lord Deben. The Government believe that six is the appropriate number. That is what history suggests is necessary. No more than three have been required in the last 240 years, and there is some added leeway. As I said, with any legal restriction, if we impose a legal restriction we should limit it as far as possible. While I fully recognise the strength of the arguments that have been put forward, I have not heard sufficiently strong arguments that we should extend this legal restriction more than we believe is necessary to take account of the historical number of places to get to the throne, and double it up for that matter. I know how strongly my noble friend feels about this, because we have discussed it in the past. If he feels that it would be helpful to have further discussion on it, I am more than open to that suggestion. In the mean time, however, I invite him to withdraw his amendment.
Baroness Butler-Sloss
May I ask a practical question? If this House took the view that 12 is preferable to six, how would that deal with the problem as to whether this Bill was then in difficulties with the other countries, which have agreed the Bill as it is?
Lord Wallace of Tankerness
My Lords, when we come to a later amendment in the name of my noble friend Lord Trefgarne, I will be able to explain what the position is in the different realms. It would require agreement among the other 15 realms. I will explain this in detail when we come to a later amendment. I am not introducing a parliamentary procedure. As I have indicated, New Zealand is, and it already has a Bill before its Parliament with the number six in it. It would therefore require agreement; it would not necessarily require a parliamentary process. It is up to each individual realm to decide what to do, and some of them do not believe that they need a parliamentary process.
Lord Hamilton of Epsom
Are we simply saying that an exchange of e-mails would be quite adequate?
Lord Wallace of Tankerness
I am sure that if it was just that, it would be simpler. Certainly, the experience of reaching agreement was far more painstaking and more work was put into it than a simple exchange of e-mails. I know that when the noble Lord, Lord Stevenson of Balmacara, who participated in some of our earlier debates, worked in the previous Administration in No. 10 Downing Street, this was one of his responsibilities when the previous Prime Minister was seeking to get agreement. I know how much effort was put into getting the agreement at Perth, and subsequently into getting the agreement on this provision. It is not, therefore, as simple as an exchange of e-mails.
Lord Cormack
If we pass this amendment this evening, it will simply go to another place, which will give extended time for sounding out opinion in the rest of the Commonwealth realms. If a negative response to those soundings was received, we could of course think again, and the Commons might decide to reject the amendment. We are simply expressing this view of this House on a common-sense matter. I very much hope that we shall be able to do that.
Lord Lang of Monkton
My Lords, I am most grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Baroness, Lady Butler-Sloss, and my noble friends Lord Cormack and Lord Elton, who gave me time to digest what I thought my noble and learned friend said at the end of his remarks. I will come back to that shortly.
First, I thank everybody who took part in the substantive debate, in particular my noble friends Lord True and Lord Lexden, and the noble Lord, Lord Thomas of Swynnerton, who are three serious historians. I invite my noble and learned friend to contemplate not only the number of noble Lords who have spoken, because there has been unanimous support from the Back Benches in the Chamber, but the quality of the contributions. I also thank my noble friend Lord Deben, whose persuasive luminosity was up to its usual very high standard. My noble friend Lord Mancroft brought substance and fact to a debate that has had to be held on a conjectural basis before, with his very important friends or relations—I am not quite sure which—in Germany. Not that all relations are necessarily friends. That was extremely helpful, as were the contributions from the noble and learned Lord, Lord Brown, and my noble friends Lord Hamilton and Lord Cormack. I apologise to anybody I have omitted to mention.
I do not want to go over all the points that were raised before, because we have batted balls around in the past and we do not always reach agreement. If I misspoke, to use a convenient Americanism, in the context of the 1772 Act, I apologise. The two central points I was keen to get across were that that Act was concerned with breaking marriages but saving the line of succession. The present Bill is the other way around. It would let the marriages go ahead but would throw in the bar to succession. That is an important injection of uncertainty that could lead to certain unintended consequences, which is why I am so keen to see a stronger and more stable base of 12 who have to seek the monarch’s consent in future.
As to the age at marriage, which is an improvement on my noble and learned friend’s previous commitment to the age at birth, Queen Victoria’s age at marriage was not relevant because by then she had left the line of succession and was already Queen. She would only have had to ask for consent to marry. I could, however, refer to the example of the Duke of Cumberland and Teviotdale, Prince Ernest Augustus, who was sixth in line to the throne when he married in 1815, rather than my noble and learned friend’s example of someone who was third in line. He ended up as King of Hanover in 1837 because, of course, Queen Victoria could not accede to that throne because of male primogeniture.
This comes down to judgment. I thought I heard a coded message coming from my noble and learned friend—I do not think I saw white smoke coming out, but at any rate it put me at a slight quandary. I am conscious that regardless of the extent of support within this Chamber, if it came to a Division the noble Baroness, Lady Hayter, has substantial support at her disposal in the Lobbies, and there is no detection of a change of tone coming from there. Nevertheless, I believe that my noble and learned friend is offering me half a loaf, which is better than none. I will withdraw this amendment in the hope that these discussions will be productive, not just empty posturing and going over the ground that we have already gone over. In that tone, I beg leave to withdraw the amendment.
Lord Trefgarne
“(2) The other provisions of this Act shall be brought into force by statutory instrument subject to the approval of both Houses of Parliament.”
Lord Trefgarne
My Lords, we touched on this matter in Committee. Under the present provisions, the Bill can be brought into force, bit by bit, by order of the Lord President of the Council, who is, of course, Mr Clegg at present.
This is not a personal matter. My complaint is not that it happens to be Mr Clegg in his present role but that there is a single Minister at all. A Bill of this nature and this importance should not be brought into force, bit by bit, at the request of a single Minister, however senior and distinguished. That is the essence of my complaint, so I propose that it should be brought into force by statutory instrument, subject to the approval of both Houses of Parliament. I hope your Lordships will agree, and I beg to move.
Lord Wallace of Tankerness
My Lords, my noble friend very succinctly makes his point about the commencement of the Bill. I fully accept that this has nothing to do with the personality of the Lord President. As I explained earlier, it happens that he has ministerial responsibility for constitutional and elections law.
There is absolutely nothing unusual in a Bill including a power for a Minister to commence provisions in an Act on a date and at a time to be specified by order and without that order being subject to any particular parliamentary procedure, negative or affirmative. Parliament will already have given its approval and the Act that is brought into force will be unamended; it will remain unchanged. Therefore, there is no reason for it to return to Parliament so that Parliament can confirm what it has already agreed.
Lord Trefgarne
My Lords, my noble and learned friend has gone further than he went in Committee, which is reasonable and acceptable. I beg leave to withdraw the amendment.
Lord James of Blackheath
“( ) An order made under subsection (2) shall not have authority in Scotland unless a draft has previously been approved by the Scottish Parliament.”
Lord James of Blackheath
My Lords, I came to Second Reading with one major concern in my mind. By Committee I had two and now I have three. Perhaps I should stop coming to these debates because my list will only grow. It leads me to wonder whether we are here with unreasonable haste on something that should not have great haste: namely, an important and challenging constitutional issue.
We all know that there will be a happy event around midsummer this year. I hope that we are not being overinfluenced by that, because it is not the gender of the unborn baby that should guide us at this moment but the continuity of the lady on the Throne, whom we should not seek to embarrass or put in any predicament that could be adverse to the continuity into the future of her glorious 60 years. It is possible that in time, having made a full recovery now, she will exceed her mother’s years—and may she reign for all of those years, too. In that case, what is the haste that we are looking at? We have had many instances in our history when the succession has fallen on an individual who has been born long before they came to the throne. Whatever happens in June or July this year, we do not need to make any commitment.
By the way, I can assure the House emphatically that the Duchess of Cambridge did not intend to use the “d” word and say that she was going to have a daughter. It is a very important point. In my earlier career I was the recipient of a great deal of training in lip-reading. It is one of the few things at which I can claim to be an expert, so I ask noble Lords not to mock me. I have watched the five-second clip of the incident many times. The Duchess never had her tongue out of the roof of her mouth. That enabled her to say the “d” very emphatically. From there she could have gone either to an “au” sound for “daughter”, a “u” for “duke”—but she would not use twee language and say, “I will give it to my duke”—or to an “o” sound to say that she would give it to her dog. She brought herself up on the spot because she realised how hurtful that would be to the kindly donor of the little dog. She had to change direction, and in order to avoid one brick she stubbed her toe on another. Unless the Deputy Prime Minister has plans to so overhaul our constitution that we have a dog on the throne, I cannot see that there is anything here about which we should be concerned. The more we look at constitutional issues, the more it appears that Mr Clegg may have misidentified them and that he is in fact Mr Baldrick Clegg, creator of some very cunning plans.
As I said, I have three major concerns. The first is the one that I began with: namely, that we are putting the Crown in an impossible position. We expect to receive a delegation of the prerogative of consent, which I do not believe the Crown is entitled to delegate to us. Secondly, because of those factors, we should look very closely at the issues of entrenchment and the laws that are being changed. We have heard that one Parliament cannot bind another, but this occurs frequently and in this case it is emphatically there. The third factor is that without any doubt the Bill, in particular Clause 4, virtually wipes out the Act of Settlement with Scotland and renders unnecessary a referendum. If this Bill were passed, Scotland would float off towards the Arctic and a very cold economic future. We should be very concerned not to create these appalling outcomes.
The matter of entrenchment is something that we need to think about very hard. When my noble friend Lord Marks and I had our dialogue in the debate at Second Reading, we were misleading each other and were both under a very big misapprehension. We were talking about alterations to the declaration of rights. In the half hour the Minister was kind enough to give me last week to discuss this, he and his team made the same mistake. The declaration of rights is not the issue here; it is the Bill of Rights. We are confusing them because of the interregnum. There was no monarch at the time. Therefore, there was no way that there could be a Bill leading to an Act, as happens at the moment. There was a declaration of the complaints of the citizens of this country, which was answered by a Bill that eventually became an Act. The Bill of Rights that was presented to William and Mary repeated word for word the declaration of rights. However, it ended at the word “accordingly”, whereupon Joe Browne, the Clerk of the Parliaments, signed his name. A space was left for William to sign, but in fact he signed a separate piece of vellum that was stitched into the Bill. This was perhaps the first instance in England of a political stitch-up.
The document sets out the suggested oaths that could be sworn by future monarchs. However, they are only suggestions and not part of the Bill. As such, my noble friend Lord Marks was wrong, and the Minister remains wrong, because the alterations to the oaths that occurred in the past do not constitute a precedent by which one can alter the Bill; one cannot. I will read two phrases that sum up how far the entrenchment goes. First, the two Houses of Parliament should,
“with royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this Kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly … to the same in all times to come”.
There is not much wiggle room there.
Towards the end, the document states that the provisions are,
“enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever”.
That is what we are asking to pass back to Her Majesty, with the request that she should forgo her coronation oath by altering something that was put into the laws of this land for ever and is, I submit, incapable of being changed. I return to my objection on Second Reading. We do not have the authority to accept delegation of the prerogative to this House, and any noble Lord who voted for it would be in breach of their oath on joining your Lordships’ House. I have raised this with many Members on these Benches. No one will give me an answer. They all say: “I’m sure it’s all right but I don’t know why”. I want to know why. I cannot vote for this and I suggest that no noble Lord should vote for it unless we are assured that we are not forcing Her Majesty into an impossible predicament by so doing.
The situation is very straightforward. We have a constitutional monarchy that is committed, first, by its commitment to the oaths of proclamation. There is a very different wording for England and for Scotland, whereby it is much tougher for Scotland. Then we have the coronation oaths, which bind the Crown to abide by what is in effect the entrenched law of the land, which we are now proposing significantly to change. The legal bounds of the Crown’s authority of governance are breached if the Crown’s constitutional limitation is exceeded. This defines the point at which a constitutionally limited monarchy has a duty arising from the commands of the law and constitution to refuse assent to a measure. If a measure is demonstrated to require removal of the constitutional law defining the duty to enforce, it is a breach of that duty, and constitutionally must be disallowed. We in this House can have no authority to pass a measure that collides headlong with the existing rules of our constitution. The limitations of the Crown would need to be breached to remove those duties, and this is an impossible and intolerable situation to place the Crown within.
In allowing the Bill, we would violate principles emanating from these enactments, which limit the Crown and the constraints imposed by the oath of office. At that moment, we would place the Crown in breach of its solemn and sworn duty, a duty undertaken as a reign-long obligation by Her Majesty. We cannot do that. Furthermore, we can hold no authority whatever to seek to do it.
I want to hear the answers to these points. I am very happy at what this Bill tries to achieve and would oppose none of it, but I am wholly opposed to the process by which we seek to do it. The advice that we have had on our legal position is undercooked, and I want to know a great deal more.
Lord Wallace of Tankerness
My Lords, I thank my noble friend for setting out his concerns. I was grateful to him for taking the time to elaborate on the rationale for his concerns at a meeting to which he referred, which we had last week. As I understand it, he has two particular concerns. The first relates to the coronation oath, which the sovereign is required to make to maintain the established Protestant religion. He is concerned that there might in this Bill be something inconsistent with the coronation oath that Her Majesty swore. I disagree and I make it clear that we are not amending the provisions of the Bill of Rights or the Act of Settlement, which say that the sovereign has to be a Protestant. That was debated under an earlier amendment. One could conceivably argue that as a result of the Bill more people might come out of the line of succession, because one of their parents was a Catholic and the parents intended to bring up the child as a Catholic, but that is simply not the same thing. Given that the prohibition on the sovereign being a Catholic remains, there is no conflict between the Bill and the coronation and accession declaration oaths. Therefore, I believe that my noble friend’s opening premise is wrong.
I also disagree with his assertion that the Bill is inconsistent with the oath that the sovereign has to swear with regard to maintaining Presbyterian church government in Scotland. I declare an interest as an elder of the Church of Scotland. As a young student during Her Majesty’s Silver Jubilee Year in 1977, I sat in the gallery of the General Assembly when Her Majesty opened it and reaffirmed her coronation oath with regard to the Church of Scotland. Again, nothing in this Bill in any way conflicts with the oath that Her Majesty took on her accession, which she has subsequently reaffirmed.
My noble friend also made reference to Scotland, and his amendments very much relate to the position of Scotland. He seemed to imply that the Bill would somehow lead to the break-up of the union. In our view there is nothing in this Bill that conflicts with requirements set out in the Act of Union. Given that my noble friend’s amendments focus on the territorial extent of the Bill, it would be helpful to consider that matter as well. The Crowns of England and Wales, Scotland and Northern Ireland are united by the various Acts of Union. Any changes that the United Kingdom Parliament makes to the laws of succession will apply automatically across our United Kingdom. The succession to the Crown is a reserved matter, as is clearly stated in the Scotland Act 1998, and the Scottish Parliament would have no competence to pass a resolution in relation to succession. At least, it would have no legal effect, as proposed in my noble friend’s amendment. However, the devolved Administrations were provided with drafts of the Bill ahead of introduction. Similarly, the Bill applies not only to the UK but to the Crown dependencies and overseas territories by necessary implication, following the precedent set by other Acts concerning the sovereign. Again, Crown dependencies and overseas territories were also consulted.
I seek to reassure my noble friend, who I know is deeply concerned about these matters, that there is nothing inconsistent with the provisions in the Bill before your Lordships’ House and the coronation oaths sworn by Her Majesty. I hope I can allay his concerns and persuade him that this is a perfectly proper matter that we deal with in this Bill.
Lord James of Blackheath
I thank the noble and learned Lord for that response. The first of my two amendments is, I agree, improper because it anticipates a resolution that the Scottish Government cannot pass. The second amendment was intended to provide an alternative and a way around the problem if it was still seen to be a problem. In that context, I wonder whether another meeting between myself and the noble and learned Lord might be helpful.
The other issue missing from all this at the moment is any reference to the regency, which was created first of all in 1936 but was not actually used. One wonders whether, if there is a problem, one could wait for an interregnum and then have a regency for long enough to pass a Bill. There would not then be a problem. I would like to discuss that with the noble and learned Lord at another time. Otherwise, I am happy at this moment to withdraw my amendment. The second amendment was intended only to provide an easier route than the first.
Lord Trefgarne
“Commencement
This Act shall come into force when all the relevant Commonwealth Parliaments have given their assent to all of its provisions.”
Lord Trefgarne
My Lords, I am concerned—I think that there was reference to this in the letter that my noble and learned friend very kindly wrote to me the other day—about the possibility of different parts of the Bill coming into force at different times in different parts of the Commonwealth. For example, it seems possible for one nation to agree that the eldest child of the sovereign became its head of state and for another nation not to agree, or at least to delay agreeing—and therefore it might be the second child of the sovereign who became its head of state. That seems to be a confusion and complication that we would not wish to see. My amendment proposes that we should wait until all the nations that want to agree have agreed, so we avoid that difficulty. My amendment proposes that the Act will come into force when all the relevant Commonwealth Parliaments have given their consent to all its provisions. The word “relevant” relates, of course, to the fact that some Commonwealth nations do not have our Queen as their head of state. Therefore, their consent is irrelevant.
I hope that my noble and learned friend will be persuaded as to the point that I have made. I beg to move.
Lord Wallace of Tankerness
My Lords, my noble friend makes an important point about the simultaneous implementation of these provisions in all the realms of which Her Majesty is Queen—and clearly for the right reason, as he gives it. It would not be helpful, nor would it be the policy intent of any of the realms that have agreed to this, that there should be divergence between different realms as to the head of state. Indeed, it is the intention that the effect will be given once all the realms have done what is necessary before the Bill is brought into force, as indicated in response to Amendment 5. I noted the interest that the House has taken as to how changes will be given effect in the different Commonwealth realms, and I have given an undertaking that the Government will lay a Statement before Parliament ahead of the commencement order to indicate how the realms have given effect to the Perth agreement.
It may help the House if I give an update on how the other realms are taking forward these changes. I have referred before to the preamble to the Statute of Westminster 1931. It states:
“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”.
This being part of a preamble and not being in the body of the Act, these words impose no legal obligations. However, the Government recognise that they carry considerable political weight and as such have undertaken to agree these changes with other realms’ Governments and to seek their consent to the legislation before introducing it into Parliament.
The New Zealand Government have co-ordinated this discussion, which culminated in all realms giving their written consent to the introduction of this Bill and their assurance that, based on the Bill as drafted, they were in a position to give the policy the same effect in their country. In doing so, some realms decided that legislation or parliamentary consent was required. Others have been clear that no further steps are necessary and that the changes will be brought about by the changes effected by the United Kingdom Government. In our view, it is in accord with the principle of the Statute of Westminster that it should be for each realm to decide what, if anything, is necessary or desirable to give effect to the agreement. Thus, although the preamble refers to the assent of the Parliaments of the dominions, we do not believe that it is for the United Kingdom to insist that parliamentary approval is obtained. I can confirm that in the case of some realms a referendum is necessary before changes to their constitution are made. However, we are not aware that any realm intends to amend its constitution, so the question of its undertaking a referendum on this issue does not at present arise.
As regards the detail of each realm, the Pacific realms of Papua New Guinea, Tuvalu and the Solomon Islands are all content that because of the wording of their constitutions no changes to their laws will be required to implement the changes to the law of succession in their respective countries. We do not believe that they intend to consult their Parliaments further on this matter.
As regards Australia, on 7 December 2012, in a meeting of the Council of Australian Governments, the Prime Minister, state premiers and territory chief ministers reiterated the support of all Australian Governments for the changes to the rules of royal succession proposed by the United Kingdom. Australia has not yet reached agreement with all states and territories on the specific method of implementation in Australia but legislation will be required, probably at both Commonwealth and state levels. Indeed, Queensland has already introduced its own Succession to the Crown Bill.
The New Zealand Bill was introduced on 18 February and its provisions mirror those of the United Kingdom Bill, although it additionally amends, where necessary, New Zealand specific legislation: for example, the Imperial Laws Application Act 1988.
The Canadian Bill has now been introduced into the Canadian senate. The Canadian Government’s view is that the laws of succession are UK law and not Canadian law. The Canadian Bill therefore does not seek amendments to the rules of succession. Instead, the Bill states that Parliament has assented to the changes set out in the United Kingdom Bill. The Canadian Bill will come into force on a date set by an Order in Council.
Jamaica and Belize have stated that, based on the nature of their constitutions, no legislative change will be required to give the changes effect domestically. We do not believe that they intend to consult their Parliaments further on this matter. The relevant oaths under the constitutions of Jamaica and Belize make reference to:
“Her Majesty Queen Elizabeth II, Her Heirs and Successors, according to law”.
The constitutions do not contain any express provisions defining “Her Majesty” or setting out the rules of succession, but we understand that Jamaica and Belize take the view that the reference in the oath to the heirs and successors of Her Majesty is to the heirs and successors under UK law—or, in other words, that it is implicit in their constitutions that the question of succession to the Crown in right of Belize and Jamaica is resolved by the law of the United Kingdom.
We believe that it would be open to the other Caribbean realms to take a similar view, but it is, of course, for them to decide how best to give the changes effect. The United Kingdom and New Zealand are in ongoing discussions with each realm to support the work they are doing.
I thought it would be useful to put that on the record because I know that in earlier debates interest was shown in that matter. I reiterate that it is intended that these measures will come into effect at the same time when all the realms of which Her Majesty is head of state have concluded their appropriate arrangements. In responding to an earlier debate, I indicated that the Government would make a Statement to Parliament prior to introducing the commencement order, indicating what has happened in each realm. Indeed, the reason why there is flexibility in the commencement order is to achieve that very purpose. In light of those comments, I hope that my noble friend will feel able to withdraw his amendment.
Lord Lexden
Before my noble and learned friend sits down, has he any view as to the earliest possible point when the realms will have completed their work and the measure can be implemented?
Lord Wallace of Tankerness
No, my Lords, I do not, and I do not think that I would help the House if I tried to speculate.
Lord Trefgarne
My Lords, I am most grateful to my noble and learned friend. He has gone further than he did at the previous stage of the Bill and I am grateful to him for that. I am also grateful to him for his letter—five pages, no less—which he wrote to me since the previous stage, which has likewise been very helpful. He has said that he will lay a Statement before Parliament as each step is reached. If I may assume that that Statement will be a situation report and will perhaps describe the other nations where progress has not yet been achieved, I am content. On that basis, I am happy to withdraw my amendment.
Lord Wallace of Tankerness
Just so there is no ambiguity or misunderstanding, I think I said that before introducing the commencement order, we will make a Statement—it will not be a sort of running commentary—indicating what has been done in each realm to give effect to these changes.
Lord Trefgarne
My Lords, that is all right. I beg leave to withdraw the amendment.