(11 years ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Trefgarne (Con)
My Lords, with your Lordships’ permission I would like to say a word about the Motion that my noble friend has just moved. I had understood from my conversations with my noble friend that he had intended to table amendments to make significant changes to the Bill. I am not sure whether they appear on the Order Paper at this stage. If it is the case that I have not understood them fully—and no doubt my noble friend will explain them in due course—I am happy that we should proceed as he proposes.
Lord Lucas (Con)
My Lords, it may be that my amendments do not come up to the noble Lord’s standards but I hope that he will find that those I have introduced have the effect of giving certainty to the Bill, in that it will happen to everybody in time and allow those Peers who wish to accelerate the process to do so, rather than it being left as an uncertain process for ever.
The Earl of Caithness
The Earl of Caithness (Con)
My Lords, with the leave of the House, I will speak also to Amendments 5, 7, 16, 19, 29, 32, 36, 40, 44, 57, 60, 64, 67, 74, 82, 87 and 95. Into that group, I would like to add Amendment 79, which logically goes with the group but is omitted from the suggested grouping of amendments. It covers exactly the same point. With the leave of your Lordships, I will speak also to Amendment 4 because, on further reflection, what I want to say on that amendment ties in very well with Amendment 1; it covers the same points.
Lord Trefgarne
My Lords, did my noble friend include Amendment 91, which is mine? I hope that he did not, but I did not quite hear.
The Earl of Caithness
No, my Lords, because I am not my noble friend Lord Trefgarne, so I could not include it and deliberately omitted it.
I must first apologise to the House and, in particular, to my noble friend Lord Lucas for not being able to take part at Second Reading. I wish that I had been able to be here. I will declare my interest. I do not have any settled estates but I have an elder daughter and a younger son who could be affected by the Bill.
A title is a very complicated document. It is personal property and I therefore agree very much with what my noble friend Lord Wallace of Saltaire said at the end of Second Reading: namely, that this is not a matter for Parliament. It is a matter for the Crown. However, this is an extremely useful debate in order to guide advice to Her Majesty, because in my view this is a logical step forward. The situation that we are in now is anomalous, so in principle I have total support for what my noble friend is aiming to do. All that I would say is that it is horrendously complicated.
I declare my interest as not being an expert in this field. From what I read of Second Reading, I thank the noble Baroness, Lady Thornton, and the Labour Party for their remarks. All my life as a hereditary Peer I have been persecuted and vilified by the Labour Party, but at Second Reading they did a wonderful U-turn and said, “We support hereditary peerages; we’re going to extend them to females so that the titles will keep on for many generations”. I take that point.
Let us look at my own title. The first official document for the Earl of Caithness goes back to 1334. There were Earls of Caithness before that, but 1334 is taken as the first creation. Those noble Lords who are aficionados of Shakespeare will know that the Earl of Caithness appears in the play “Macbeth”—and Macbeth got killed or died in 1057. That Earl of Caithness was Thorfinn, more of a Viking mormær, or Earl, than a Scottish one—it was under Norse law. The person who got the title in 1334, Maol Íosa V, also Earl of Strathearn, was the first creation. He forfeited his titles through treason and the title died out, so that was the end of the earldom of Caithness.
However, because it is the prerogative of the Crown, there was a second grant a few years later, in 1375, to David Stewart, a younger son of Robert II of Scotland, who left his title to his heiress, Euphemia—so the Scots were well ahead in showing that females could inherit a title. That creation died out, too; this is the wonderful thing about having hereditary Peers. There is another gap and then we come to the third creation, Sir George Crichton in 1452—but he surrendered the title in the same year, so the Earl of Caithness came to an end yet again. The fourth creation comes down to me. As one can see, one was able to perpetuate the title but with different families, and now the Labour Party is saying that we can extend that. I feel that after 65 years of persecution, today is a very happy day.
I said at the beginning that the issue was unusually complicated. There will be all sorts of legal problems to be sorted out; in fact, the Bill will become a lawyer’s paradise. For some titles, though not mine, a private Act of Parliament will be necessary in order to effect the Bill. The settlement of the Shrewsbury family had to be done by a private Act of Parliament, for example, so in order to break that, my noble friend Lord Shrewsbury would have to have a further private Act of Parliament. That is just one of the many areas that the lawyers are going to be rubbing their hands over.
Lord Jopling (Con)
If we are to do the things that my noble friend Lord Lucas is trying to do, it will mean primary legislation. Dealing with the situation of our colleague, my noble friend Lord Shrewsbury, could be fitted into the same Bill, so I do not think that that constitutes a particular problem.
The Earl of Caithness
Indeed, my Lords—if the end result is done by an Act of Parliament. Following the logic of my noble friend Lord Wallace, though, if this is a matter that the Crown decides because our titles are granted by the Monarch, it would not be an Act of Parliament. Therein lies one of the many complications.
Lord Trefgarne
My Lords, may I just intervene? There is a problem with the course of action proposed by my noble friend Lord Jopling, and that is the Long Title of the Bill. If we were to seek to amend the Bill to include my noble friend Lord Shrewsbury, for example, we would have to ensure that the Long Title provided for that. I am afraid that on my first reading of it, the mere three lines would not do.
Lord Jopling
I think we have to understand that the Bill as it stands does not have a hope in hell of getting on to the statute book. I say that as one who, down at the other end of the building, killed more Bills than most people you will ever meet. It would need fresh legislation. We are embarked on a discussion of the issue, but those of us who are realists realise that the Bill will not go through.
Lord Trefgarne
If a Bill were to come forward simply to deal with my noble friend Lord Shrewsbury—or to deal among other things with my noble friend Lord Shrewsbury—it would be a hybrid Bill. Does my noble friend recall the difficulties of getting hybrid—
Lord Wallace of Saltaire (LD)
My Lords, perhaps it might help to bring the Committee to a degree of order if we allow the noble Earl, Lord Caithness, to move his amendment before we get into detailed discussion. I do not think he has yet moved it.
The Earl of Caithness
I am speaking to it and have a lot more to say. I know it is Friday afternoon and my noble friend on the Front Bench wishes to go home, but I have been working on this Bill for a couple of weeks, and I am not going to miss my opportunity.
Amendment 1 and my subsequent amendments are about the definition of hereditary titles. The Bill is quite clear that baronetcies include Irish baronetcies, but Clause 1 relates to the peerages of England, Scotland, Great Britain or the United Kingdom only. In fact, this is already a hybrid Bill because it incorporates the baronetcies of Ireland but not the peerages of Ireland. That is the effect of Amendment 4. It is particularly relevant for my noble friend Lord Clancarty. He is the Earl of Clancarty as well Baron Kilconnel and Viscount Dunlo—but they are separate titles in the peerage of Ireland. So there is a complication in excluding Ireland.
Amendment 4 shows that Amendment 1 is very relevant, because you need to define a hereditary title. If you do not define it, you face a gamut of things. Indeed, the noble Earl, Lord Erroll, has an amendment—I have similar amendments—that tries to include some hereditary titles from the Crown or state. That is a separate argument, and we will come to it.
The huge complication of the Bill as it stands is the definition of “hereditary title”. I wish to simplify that. I wish to include peerages, including Irish peerages, and baronetcies and leave it at that. I beg to move.
Lord Trefgarne
I have some doubts about the proposal being brought forward by my noble friend. I am anxious, of course, that the peerages and baronetcies of Ireland should all be treated fairly and equally if we possibly can, but the fact is, as my noble friend said, that these matters are of extraordinary complexity. We have already dealt with the problems being faced by my noble friend Lord Shrewsbury. My noble friend Lord Caithness described the problems being faced by the noble Earl, Lord Clancarty. What are we to do about this? At the very least, if we agree some of these amendments, we risk making the Bill a hybrid Bill. Noble Lords smile at that, but the fact is that a hybrid Bill is a very different animal from the one we are considering today. It needs Select Committees, learned counsel and all sorts of distinguished things that take a great deal of time and, no doubt, a great deal of money. My noble friend’s amendment takes us along that rather dangerous path, and I invite him to reconsider it.
Baroness Deech (CB)
My Lords, although I am no expert on the hereditary peerage, I entered into a correspondence with the Ministry of Justice—in fact with the Crown Office—on this matter. The noble Lord, Lord Wallace, told the House at the end of Second Reading that my specific point about husbands—and, indeed, the whole Bill—is a matter for the royal prerogative. According to the Crown Office’s letter, hereditary peerages are a matter of property.
It therefore seems to me to be very simple. Under the European Convention on Human Rights, we may not discriminate on grounds of property. Article 14 says that there shall be no discrimination on, inter alia, grounds of status; it is absolutely straightforward. If hereditary titles are property, we simply cannot discriminate. Under own Equality Acts—we have not yet got to those amendments—we cannot attach conditions to women that we do not attach to men, and vice versa.
The whole Bill therefore boils down to the fact that where there is a title, which is property, there must be equality—no “ifs” or “buts”, no petitions, no waiting for this, no waiting for that. Where people have a title which attaches only to one sex and not to the other, it is against our equality law.
Our only hope of getting this legislation through the House of Commons is to have a straightforward, simple Bill that applies the principles, which we cannot avoid, of the European Convention on Human Rights and our own equality law. We should strip away all the carbuncles and just get down to what has to be done under our law.
Lord Trefgarne
My Lords, there is a problem with the noble Baroness’s proposition that a hereditary title is property. There is more than one respectable view on that, as I understand it, so it may or may not be property. Another way forward, of course, would be to seek some sort of derogation from the European Convention on Human Rights with regard to hereditary Peerages. The Spanish Government are faced with the same problem. Perhaps my noble friend the Minister has some information about how the Spanish Government are responding to this difficulty. They recently created a new hereditary marquis in Spain who turned out to be the coach of the football team. However, they then lost so he may be stripped of it after all.
The Earl of Clancarty (CB)
My Lords, I agree with the sentiments of the noble Baroness, Lady Deech. We will come to the main discussion on this a little later. I am grateful to the noble Lord, Lord Lucas, for enabling us again to discuss gender equality in the peerage, and I congratulate the noble Lord on pushing the Bill further forward.
On these particular amendments I will be brief. I am not sure that at this stage we should be overtightening the Bill and prescribing so precisely what it contains in the title. In the way that it stands at present it contains peerages and baronetcies. In the next group we will be discussing other Crown offices and rights, so I do not think that we should yet be jumping to any conclusions about what necessarily will be covered in toto in the Bill.
It is probably no surprise to the House that I support Amendment 4. Irish peerages are an identifiable group under the current jurisdiction of the Crown and stem from a time before the current United Kingdom of Great Britain and Northern Ireland, which of course excludes the Republic of Ireland. “Great Britain” therefore is a term which has a certain ambiguity attached to it. My own peerage, the Earldom of Clancarty, is Irish, though I sit in this House by virtue of a viscountcy which is an English title. It would be wise to include the reference to Ireland, just as England and Scotland have already been included.
The Earl of Erroll (CB)
My Lords, first, I apologise: I have actually got 16 people for lunch and am meant to be chairing a meeting down in Committee Room G, so I will be jumping in and out a bit.
Even if the Bill does not become law, people will look at it should they wish to produce an equality Bill on titles, so I want to point out some things which need to be considered when rewriting it. The easiest point at which to do this is probably on this amendment. I have some amendments in the second group but I think they are all generically the same—about how you define the titles, how you define a registered title and what gets caught up in that.
I have added my name to several amendments tabled by the noble Earl, Lord Caithness, and the noble Lady, Lady Saltoun, because they are alternatives. With my amendment I have tried—particularly in Amendment 2 and some of the other consequential ones—to define the words “hereditary title” as being,
“hereditary peerage, baronetcy, or other heritable office of the Crown or State”.
That means that all the things we want to include are included in the words “hereditary title”, which means that you do not then need to amend the Long Title or so much of the Bill—you just need to take out the words “hereditary peerage or” and put in the words “hereditary title”.
The current definition of hereditary title, which comes right at the beginning of Clause 1, is too wide. It can catch up certain things that are not titles conferred by Her Majesty the Queen. All sorts of things could be caught up, for instance Scottish clan chiefships, which can devolve separately and differently, and which are regulated by the Court of the Lord Lyon. Therefore I thought it much easier to keep those out of it. In fact, many of the amendments in the name of the noble Earl, Lord Caithness, and the noble Lady, Lady Saltoun, also intend to do the same thing. I thought that an easier way was to define it right at the beginning, so that the term “hereditary title” is restricted in its definition and does not inadvertently catch up all sorts of other honorifics, honorary titles and other things which may be hereditary, such as the hereditary keeper of the something or other, or the hereditary groom of the something or other, and so on. Those can all go on doing what they do, the major titles will be dealt with in the Bill, and then we can put in the equality provisions, to which I have other amendments and for which I will join other noble Lords.
That is why I prefer my Amendment 2, which is the main one, and the other bits, which basically bring it back to hereditary titles. That means that we can leave the term “hereditary title” in the long title of the Bill without having to change it, because it is dealt with immediately later on. I apologise again because I will have to pop in and out, and I will speak as briefly as possible.
Lord Dubs (Lab)
My Lords, I am not sure that I am capable of following all the subtleties of those contributions. I am not sure where the argument about the Labour Party comes from. As far as I am concerned, it is very simple, although I cannot speak officially for the Labour Party. We are, simply, opposed to discrimination on the grounds of gender, as the noble Baroness said a few minutes ago. That is all there is to it; surely that proposition is so simple. Of course the Bill will get blocked in the Commons. If any noble Lords have nothing to do on a Friday afternoon at 2.30 pm when the Commons is sitting, you will see the government Whip with a list of all the Bills, and he shouts “Object” to all of them. Last Friday he even objected to the Bill to give a pardon to Alan Turing. I thought that that was absolutely shameful. This House totally agreed that that Bill should go forward. That happened for reasons that the Government do not have to explain. The procedure in the Commons is absolutely lacking in total transparency. I will not digress too much on this, but it is quite wrong that an anonymous person—it happens that one can see that it is a government Whip—objects to all of those Bills. To object to the Alan Turing Bill was a really shabby thing and the Government should be ashamed of that.
To return to this Bill, the proposition is very simple. I do not speak for the Labour Party, but we are opposed to discrimination on the grounds of gender. I do not have any particular views on the rights of the aristocracy in any other respect, but the proposition is absolutely simple. If the Bill were to go through quickly, the Government might object, but it would send a signal in the hope that before too long, the Government will themselves take the matter in hand and do something about it.
Lord Stevenson of Balmacara (Lab)
I came into this debate believing that a vow of omerta would probably be the best approach, and I intend to stick to that. However, I wanted to upset the noble Earl on his happy day. I am afraid that as my noble friend Lord Dubs just said, he is confusing several things. The position that we have adopted is as stated by my noble friend Lord Dubs: in relation to the way in which titles are transferred we believe in equality and we will support that. We do not believe in the hereditary principle, therefore his continuous presence in this House is something we would oppose.
Lord Wallace of Saltaire
My Lords, it is valuable to treat this Committee stage as a discussion about titles and the question of discrimination. The noble Baroness, Lady Deech, talked about stripping away all the carbuncles. I hesitate a little on that, partly because the British constitution consists of a great many carbuncles. The application of rational design to the British constitution would sweep us away in its turn, which we know the majority of Members of this House are very strongly opposed to.
I was here when the Government announced that the office of Lord Chancellor was to be abolished. They thereupon discovered that the office of Lord Chancellor—a very ancient office—had a whole cast of obligations attached to it which was extraordinarily difficult to get rid of. That is why we still have, for different purposes, the office of Lord Chancellor combined with the Secretary of State for Justice.
The Government’s principle on this Bill is that we welcome the discussion of the elimination of discrimination as far as titles are concerned. My understanding on titles is that all honours stem from the Crown. I am therefore not entirely sure that titles are matters of property. One of the issues that we are debating in the Bill that stands behind this one in the queue is the question of whether the Duchy of Cornwall is a private property or a type of public property.
Baroness Deech
On a point of order: according to the Crown office—and it should know—it is written in Halsbury’s Laws of England, 5th edition, Volume 79, paragraph 808:
“A peerage is an incorporeal and impartible hereditament, inalienable …”
It is real property akin to land. Of course, even if the Royal Prerogative enters into this, I think it is a lawyer’s point that a parliament can change or nibble away at or remove parts of the Royal Prerogative, so I hope that will not stand in the way.
Lord Wallace of Saltaire
I thank the noble Baroness for that. I recognise her legal expertise in this area. I say to the noble Lord, Lord Trefgarne, that I have not entirely followed the Spanish Government’s debates, and I am sure he could also inform us on the Dutch, Belgian, Italian and Swedish debates on what happens on titles. I can recall a most wonderful evening in Rome, talking to Italian liberals—a nearly endangered species—hosted by a wonderful woman called La Contesssa Machiavelli. This was not at all the content I had in my mind at all. If we are going to make comparisons on titles, there are a lot more: I am not sure whether Andorra—
Lord Trefgarne
My intervention is on the Spanish example. They are the only recent Government to have created a new hereditary peerage. It was a new hereditary marquisate conferred upon the coach of a football team.
The Earl of Caithness
My noble friend will remember that Mrs Thatcher, as Prime Minister, created two hereditary peerages: the late Lord Tonypandy and our late noble friend Viscount Whitelaw.
Lord Wallace of Saltaire
The Government are committed to equality of treatment before the law, and we have demonstrated this in the legislation that the Government have already taken through this House and the other place, including the Succession to the Crown Act, which removed the male bias with regard to the descent of the Crown and the Marriage (Same Sex Couples) Act. We are not, however, persuaded that this Bill provides the most appropriate mechanism to address inequalities within the hereditary title system. I suggest that, before any such system be introduced, we need an extensive consultation with affected parties. That said, it is clear that many noble Lords who have spoken today support the equalisation of inheritance in regard to hereditary titles, and these amendments have provoked a debate on that, which will no doubt continue.
The Earl of Caithness
My Lords, I am grateful to all noble Lords who took part, and I am sorry that the noble Lord, Lord Stevenson, tried to ruin my day. However, I say to him that, by allowing the eldest child, female or not, to inherit an hereditary title, you are going to perpetuate hereditary titles that would have died out with a male-only rule. That is to me a consolation.
May I ask my noble friend Lord Wallace, referring to my Amendment 4—which I will come to move in due course because I am only speaking to it at the moment— whether the Bill is hybrid at present as it includes Irish baronetcies, but not Irish peerages? Do we have a hybrid Bill at the moment?
Lord Wallace of Saltaire
My Lords, I am informed that this is not a matter for the Government. It certainly seems that if the object is to extend equality, the provision should apply to all those peerages created by the current and all previous monarchs of England and the United Kingdom, and therefore include the peerage of Ireland.
Lord Trefgarne
I am bound to say that some of us in this House have a little experience—somewhat distant experience now, I must say—of hybrid Bills and what the implications are. It is a serious matter. I believe that there is a procedure for referring a Bill to a Select Committee to consider whether it is or is not hybrid and to decide how to proceed. There are people called examiners, I seem to recall. It is probably one of our distinguished clerks, I imagine, who sits on a committee to examine all these matters. I do not wish to suggest that we unduly delay this Bill by such a process, but others may take a different view.
The Earl of Caithness
My Lords, I do not want to delay the Bill because it is going in the right direction, but it raises a huge point. If I had been present at Second Reading, I would have raised the question of hybridity. I am sure that my noble friend Lord Lucas wants to comment on that.
Lord Lucas
My Lords, I am very much in the hands of the House when it comes to whether it wishes to accept amendments or not. I am content with the current scope of the Bill, so far as it goes, but I shall not stand in the way of the House if it wishes to change that. I certainly agree with the intent of my noble friend’s Amendment 4. I think that the Bill should cover Ireland. However, as to whether it should be restricted to peerages or baronetcies, I tend to come at this from the point of view of gender equality, and therefore do not particularly wish to preserve little islands of male supremacy in whatever strange form they may exist. There was certainly a dispute going back in my family as to whether or not they were the hereditary sword bearers in front of the Queen. They lost that argument, but I am aware that these offices exist. As an aside, I am also rather intrigued by the history of the title of my noble friend Lord Caithness. If we could make this measure retrospective, we might have a number of Lord Caithnesses and perhaps they could duel to the death to decide who should succeed. However, other than that, I am content with the Bill as it stands, except that I think Amendment 4 looks quite nice.
The Lord Speaker (Baroness D'Souza)
Does the noble Earl wish to withdraw the amendment?
The Earl of Caithness
Yes, but I want to say to the noble Baroness, Lady Deech, that she hit the nail on the head with regard to the words “hereditary title”. Because it is so ambiguous, the purpose of this amendment is to narrow it down; otherwise, this will become a lawyer’s paradise, particularly in Scotland where heredity is a different game. The Bill seeks to impose on five different regimes one solution that fits all, the principle of which none of us disagrees with. In Scotland, the position is very different and there are huge complications which will end up in a number of court cases. That is why I want the Bill to be much more specific. However, I wish to comment on Amendment 2, which the noble Earl, Lord Erroll, will move, so at this stage I will withdraw Amendment 1.
The Lord Speaker
Is it your Lordships’ pleasure that this amendment be withdrawn?
The Lord Speaker
Does the noble Lord wish to test the opinion of the House?
Lord Trefgarne
My Lords, I invite the noble Baroness the Lord Speaker to put the Question.
The Lord Speaker
The Question is that this amendment be agreed to. As many as are of that opinion say content, the contrary not-content.
The Earl of Erroll
The Earl of Erroll
My Lords, that set the cat among the pigeons because I thought it would be best if we took away all these bits of the Bill that were trying to constructively limit the scope of the legislation—“peerage”, “baronetcy” and great offices of state—and work out which was the best way of doing that. In his amendments, the noble Earl, Lord Caithness, proposed one method of doing so. After talking to other people, I thought that there was another, neater method of doing so. If you combined my Amendment 2 with Amendment 6, it would produce a definition of how we want the Bill to be limited as regards hereditary title. The rest of the Bill would then read logically and would achieve the aim of the noble Lord, Lord Lucas, in trying to produce a gender-neutral succession. This is not a destructive proposal but is just a matter of definition. I had rather thought that we might withdraw all the amendments around this subject, go away, think about them and agree on the best way of defining it, and make the Bill consistent in such a way that anyone could pick it up and understand what on earth we were talking about and what it meant. I would suggest, if the Bill were ever rewritten, that this might be a slightly less cumbersome way of achieving the objective than having to insert “or baronetcy” and so on throughout the Bill. That is why I favoured my amendment over the other.
Now that Amendment 1 has failed we should either withdraw Amendment 2 and go away to discuss it, or press it because it would at least be an improvement on the generic term, “hereditary titles”, which can encompass all the other sorts of things that we do not want to be caught in the Bill. After considerable debate in the Standing Council of Scottish Chiefs, for instance, there was general consensus that it would be better to keep that issue separate and not in the Bill. At the moment, you can leave a chiefship to a daughter, and you can change the destination if you need to if a person is unsuitable or by certain applications and approvals. That should be dealt with completely separately to the Bill. We wanted to ensure that that sort of thing was not caught up in it inadvertently, which is why I tabled this other version of what is effectively Amendment 1 to discuss which version was better.
I am obviously very much in favour of Amendment 4 because there is no logic in separating out Ireland from this provision. We were all the same at one time. Amendment 6 is consequential on Amendment 2. If it goes through, we need Amendment 6 because it would rewrite the first clause and achieve a definition in the Bill. The rest of my amendments, in their various groupings, are all around this subject and logically follow from the combination of Amendments 2 and 6. I beg to move.
Amendment 3 (to Amendment 2)
The Earl of Clancarty
The Earl of Clancarty
My Lords, this group of amendments deals with the range or inclusiveness of titles, rights and offices to be considered as part of this Bill. We need to bear in mind the Equality Act 2006, which created a public duty on grounds of gender. Many hereditary titles are owned by the Crown; armorial rights are administered on behalf of the Crown by the College of Arms in England and Wales, for instance.
As regards my amendment, in Scotland coats of arms and the clans are under the official jurisdiction of the Court of the Lord Lyon. My understanding is that in England and Wales there are up to 100,000 holders of coats of arms. The College of Arms grants about 150 new ones each year, so we are talking about quite a sizeable group here. The most publicised grantee in recent years has been Michael Middleton, whose youngest child James can pass the coat of arms down to his children—in fact any son can do so—so they may proliferate through all the male lines, but the two daughters, the Duchess of Cambridge and Pippa Middleton cannot.
The Royal Family took a great step forward with gender-neutral succession to the Crown. It seems to me that any titles, rights or offices which attach themselves to the Crown should absolutely now be gender neutral so that royal succession is not an anomaly but part of a general rule of equality of the sexes. The Crown needs to be brought properly up to date in this respect in all its workings and manifestations. If we are to continue to have these living traditions given official sanction, they need to reflect female equality.
The Earl of Caithness
My Lords, I support the noble Earl, Lord Erroll, on Amendment 2. A number of my amendments are grouped with his, including Amendments 9 and 17. To that, I would add Amendment 20, as it would sit logically with the others. The group also includes my Amendments 30, 33, 37, 41, 45, 58, 61, 65, 68 and 75. I would substitute Amendment 80 for Amendment 79, because Amendment 79 links with Amendment 1. My Amendments 83, 88 and 96 are also in the group.
The noble Earl is absolutely right in what he said, which comes back to the point that we discussed on the first amendment. The noble Earl is the Lord High Constable of Scotland, a title of the Crown, or state, to which he succeeded after his mother. However, it is nothing to do with the earldom of Erroll; it is a totally separate issue. In Scotland, we also have the Hereditary Bearer of the National Flag of Scotland, who is the Earl of Lauderdale, the Hereditary Royal Standard-Bearer for Scotland, who is our noble friend Lord Dundee, and the Hereditary Keeper of Holyrood Palace, who is the Duke of Hamilton. Those are fairly straightforward and should be dealt with in this amendment. Without being at all derogatory, we then get down to perhaps a slightly lesser level. What about the Keeper of the Ancient Staff of St Moluag? Should that be hereditary? This is the real problem with this issue and why it needs to be so clearly defined.
The noble Earl also talked about clan chiefships. This is a matter of debate: some Writers to the Signet, in some cases, have said that clan chiefship is a title and others have said that it is a right or a privilege. We could have a huge number of court cases trying to decide that. It is not our job in this House to leave legislation ambiguous; we need to be absolutely clear. The lawyers make enough money as it is and we do not want to give them any more.
I would resist the amendment of the noble Earl, Lord Clancarty, which is a good example of where the Bill is being extended to include armigers. Of course, the rules in Scotland are different from those in England, and this one solution to fit all systems comes apart. If my daughter marries a Mr Smith, she cannot then bear her coat of arms as a Sinclair unless she changes her name. In Scotland, if an heiress inherits, to assume the coat of arms she is required to change her name, otherwise she is conventionally dead within the family and the next heir then inherits. It is not fun to be conventionally dead, or indeed unconventionally dead. In contrast, a peerage or baronetcy is generally not legally connected to a name. There are lots of examples of a peerage or baronetcy granted to Mr X where the name changes with various inheritances. There are some Scottish peerages where there is an obligation to bear the original name of the arms, but those are a limited minority.
We have a different legal system in Scotland. When I saw this amendment, I spoke to the Lyon Clerk, who is the assistant to the Lord Lyon in Scotland. She threw up her arms in horror and said, “No. This is just unacceptable. There has been no discussion about it. The implications are enormous”. For that reason, I will resist this amendment.
The Earl of Erroll
Amendment 3 should be dealt with separately within the Bill because there are complications around it. My wife, Isabelle Astell, is English and is armigerous. She is the heir to the Astell place and to the Astell arms. As far as I know, she still bears her own arms and I hope she will pass them to one of our sons. It happens to be that way round but, given that she inherited them, they could presumably be passed to a daughter. This issue needs looking at and thinking about but the point is well taken. At a later stage of the Bill, perhaps something could be inserted to cover just arms, leaving it separate from peerages and baronetcies—things that have come from the Crown directly.
Lord Trefgarne
My Lords, I presume I am right in thinking that we are considering the amendment in the name of the noble Earl, Lord Clancarty, and not that in the name of the noble Earl, Lord Erroll.
Lord Wallace of Saltaire
My Lords, I merely wish to say that we are in the process of discovering the sheer complexity of what we are discussing. The Government’s objective is to ensure equality before the law. Therefore, the provisions should appropriately be applied broadly but we are beginning to discover just how complex the slightly different laws of England and Scotland are on this matter. I recall that when I was nominated to this House, the Lord Lyon King of Arms wanted to make absolutely sure that my title did not entrench upon anything to do with the Wallaces in Scotland. It was a very interesting overlap. I shall google St Moluag this afternoon just to check exactly who he was. I intend to use it in the next pub quiz I take part in as a test question.
Lord Lucas
My Lords, I am conscious that, as a Private Member’s Bill, this should be kept simple and of defined extent. Much as I am tempted to go into the nature of arms and all the rules that apply, I have to admit that I know so little that I would not detain your Lordships long if I did. It would be wise to keep this out of a Private Member’s Bill, for the same reason that I am quite attracted by the amendment in the name of the noble Earl, Lord Erroll, should he choose to press it. It defines the Bill more closely and makes it clearer.
The Earl of Clancarty
This has been an interesting, short debate. I understand the mood of the House on this, so I beg leave to withdraw my amendment.
The Earl of Caithness
The Earl of Caithness
My Lords, we have had a good debate about this. I beg to move.
The Earl of Erroll
The Earl of Erroll
My Lords, this amendment is consequential on Amendment 2, which will make no sense without it. The rest of the amendments in the group —I have not worked out which ones they are and I am sorry for that; there are quite a lot of them—relate to wherever the Bill states,
“hereditary peerage or hereditary title”.
Where it does, I have taken out “hereditary peerage”, so that from then on the Bill will always read just “hereditary title”. It would then be consistent with Amendment 2 throughout. That makes it much simpler than changing it throughout. I recommend that we accept this amendment in order that Amendment 2 is logical. My challenge is trying to work out all the other ones which are the same. If you see something with my name on it saying “remove ‘hereditary peerage or’” it is in order to ensure that the Bill just refers to “hereditary title”. I beg to move.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, if this amendment is agreed to, I cannot call Amendments 7 and 8 by reason of pre-emption.
The Earl of Caithness
My Lords, it is not quite as simple as the noble Earl has just said, because he has not put his name to Amendment 20, in my name, which covers exactly the same point. I think I am right in saying that it is Amendments 8, 15, 18, not 20; 28, 31, 35, 39, 43, not 47; 48, 49, 50, not 52; 53, not 54; 56, 59, 63, 66 and 73—I do not know about Amendment 77; I need advice on that, it is not my amendment—78, not 80; 81, 86, 91, 92 and 93. I hope that is helpful. I will therefore speak to my Amendments 20, 47, 52, 54 and 80 separately.
Lord Trefgarne
My Lords, I am afraid that this amendment seems to suffer from some of the difficulties that we have been discussing; namely, the possibility that there is a hybrid element within it. There seem to be a number of possible areas of hybridity in this Bill, which makes the whole Bill very difficult to proceed with. The proper way to proceed with a Bill that might or might not be hybrid is for it to be referred to the Examiners. I hope that if the Bill proceeds further after today, that will happen—it will have to happen; it will not be up to me alone, of course.
Has the noble Earl, Lord Erroll, considered this question? It is an important one, which will have to be raised time and again if it cannot be clarified.
The Earl of Erroll
Is that the question of hybridity? I do not think I am qualified to speak on hybridity, which I seem to remember is the question of whether a Public Bill affects the rights of a subset of people differently from the general class of people. I do not think my amendment does that because I have spoken just in terms of general classes: hereditary peerage, baronetcy and officers of the Crown and state. Those are generic classes, with no special definitions, unlike the House of Lords Bill, which discriminated in favour of only English hereditary great offices of state and not Scottish ones.
Lord Trefgarne
My Lords, I will not extend this discussion too long but the problem is if you have a category that you describe as “hereditary titles” but some hereditary titles are not included, by definition you have a hybrid Bill.
The Earl of Erroll
My Lords, I think the answer is that this is about English. For the purposes of the Bill, one might restrict the term “hereditary titles”; for instance, a description of “the incumbent” does not mean to say the incumbent of every parish or the incumbent of everything. Some of these are generic words in English. The wording “hereditary titles” is used merely within the Bill: a restricted class of hereditary titles is used in the Bill and called “hereditary titles”. That does not mean we are trying to affect the terminology of hereditary titles for the English language as a whole outside.
I have to admit that I had hoped the first amendment would not have been negatived and therefore we would have taken all these away and sat down and got them logical as a whole in the Bill, with the help of the noble Lord, Lord Lucas. However, that has not happened. Perhaps we can just clean it up on Report if necessary, but certainly Amendment 6 is needed in order to make sense of Amendment 2, so I suggest that we accept that one and if we then miss some of the other ones later, to make it logical we bring it back on Report and do a massive amount of tidying-up.
Certainly, Amendments 6, 28, 31—off the top of my head—35, 39 and 43 are all the same. You can work through them: they are the amendments in my name only. I had added my name to the alternative amendment in the names of the noble Earl, Lord Caithness, and the noble Lady, Lady Saltoun, because I wanted to show that I also supported those and that it was a question of which of them we should tidy up. However, now that that has been negated, I think that we have to drive forwards with mine for the moment and tidy it up on Report.
The Earl of Caithness
The Deputy Chairman of Committees
The question is that Amendment 9 be agreed to.
The Deputy Chairman of Committees
My understanding is that it has already been debated, but I may be wrong about that.
The Earl of Erroll
Perhaps I might help on this. As a result of my two amendments being agreed, Amendment 9, which I do not think was entirely expected, may make the provision gibberish. I feel that part of what we might have to do on Report is tidy up, because we have several competing amendments all trying to cover the same subject. It may be wise if we tidy up on Report.
The Deputy Chairman of Committees
Perhaps I may take the noble Earl’s implied advice and suggest that, if that be the case, the amendment be not moved at this stage.
The Deputy Chairman of Committees
I believe that it has not been moved but it has been debated. I am looking to the clerks for advice, but I think that that is the case; in which case, the amendment is not moved.
The Earl of Clancarty
The Earl of Clancarty
My Lords, my interpretation of what we are doing with this Bill, or what we are supposed to be doing, is to make an unfair system significantly fairer, and this can be done in a straightforward manner. It is worth reiterating the assertion made by the noble Lord, Lord Dubs, that there should not be gender discrimination in Britain full stop.
It is on this basis that I have tabled Amendment 10, and I am grateful to the noble Lord, Lord Pannick, for supporting it as well as those which would remove the petitioning and special remainder clauses, Clauses 2, 3, 4 and 5. The noble Lord gives his apologies that he cannot be here today, as he is currently on his way to Hong Kong, otherwise he would have spoken in this debate. I am grateful also to the noble Lord, Lord Jopling, for supporting Amendment 10.
Clause 1, uncoupled from Clause 2, will mean simply that succession can and will take place by a living heir, regardless of gender, on the death of the present incumbent as soon as the Act comes into force. As the Campaign for Equality of Women in the Peerage has put it:
“It is not in a man’s gift to bestow equality on women”.
This should not be decided on the whim of a male incumbent or even around the dining-room table. No male incumbent should have the right to decide whether women will inherit, but this is exactly what will happen if the petitioning clauses stand.
I am sorry to say to the noble Lord, Lord Lucas, who is trying very hard to find a compromise solution, that there will be women who find this even more insulting to them than the status quo, because we would move from an institutionalised sexism—at least you know where you stand—to a personalised one. This is unacceptable.
There is a lot of talk about the expectations of young men, but is that more important than the hopes of young women? Even if the Bill passes in its present form, it will not prevent the current generation of elder daughters who are considering doing so from taking their cases to Strasbourg. The beauty of Parliament deciding in a properly cut and dried manner that when the Act comes into force, there will be gender equality full stop, is that there will be no further argument, uncertainty or litigation, which petitioning might otherwise promote.
In combination with the removal of Clause 2, the amendment ensures that succession may be at any age —again, irrespective of gender. I believe that that is widely supported. Clause 2 contains the stipulation that the woman has to be 21. It is simple. If the man can inherit from any age, the woman should, too. There is no other argument.
It is important to get the Bill right. This is its most crucial aspect. My approach makes the Bill fairer, much simpler and gives it a more realistic chance of getting through Parliament, which many would like. It should be a mandatory, not a permissive Bill. I hope that the Government will support that position. I beg to move.
The Deputy Chairman of Committees
My Lords, if the amendment is agreed to, I cannot call Amendment 12 by reason of pre-emption.
Amendment 11 (to Amendment 10)
The Earl of Caithness
The Earl of Caithness
My Lords, in moving the amendment I shall speak also to Amendments 23, 26 and 42, which are not grouped on the Marshalled List, but logically appear with it. I do not include in my grouping Amendments 21, 34A, 71, 76 or 89. We are slightly confused by the suggested groupings list. It is always difficult with a Bill such as this, and I do not criticise anyone.
My points relate to the question of legitimacy, because the law on legitimacy is different in Scotland than it is in England. The wording of the Bill sows confusion and causes problems north of the border. I think that my noble friend Lord Lucas is beginning to understand what a Pandora’s box he has opened. We need to get this absolutely right.
A child legitimately born is not something that we understand in Scotland. If a male and female produce a son out of wedlock, or, in due course, a daughter out of wedlock, that child is legitimised on the marriage, so the question of illegitimacy does not occur in Scotland in the same way as I understand that it does in England.
Your Lordships will all know that in 1832, the Macdonald of Sleat baronetcy passed to the eldest child, legitimised by his parents on their subsequent marriage, while the Irish peerage of Baron Macdonald passed to his second son, but the first legitimately born after the marriage. The same principle was used in the Marquis of Queensbury case, and there is the Anstruther case. The Anstruthers had two baronetcies and they produced a son out of wedlock. It was all very carefully planned. They were lucky to have a boy. They then got married. That legitimised the boy, who received the Scottish title. They were then very clever and, having been married, produced a second son who was legitimate and therefore got the English title; they were able to separate the two Anstruther titles.
That is why I am moving Amendment 11. I know that the rules in England are different. As I understand it, they refer to illegitimate children born after 28 October 1959 who were legitimised by the subsequent marriage of their parents. I hope that my noble friend and the House will be able to accept my amendment so that we do not have any further problems. I beg to move.
Lord Jopling
My Lords, I must apologise to the House that I was not able to take part at Second Reading. I was keen to be here but it was impossible. I warmly support the general purpose of the Bill, principally because I feel very strongly that the law which covers the Crown should have close parallel with those laws which cover the peerage. Now that the eldest female child of the Crown can inherit the Crown, I believe that we should move in the same way so far as the peerage is concerned. That is why I congratulate my noble friend Lord Lucas on aiming to do this. As he told us a few minutes ago, I approach this issue purely because of gender equality rather than because of all these quirks of the law about titles in England, Scotland, Ireland and Wales. Those are mysteries to me; I am concerned with the gender equality aspects.
I said in an earlier intervention that we have to accept—I hope that my noble friend Lord Lucas and everybody else accepts this—that the chances of this Bill coming into law are nil. As the House may know, I had experience in another place as a party manager and a business manager. There is no way that the Bill will move into law and therefore, as the noble Lord, Lord Wallace, quite correctly said earlier, we ought to regard this as a discussion on this matter rather than a detailed way of passing it into law.
Lord Trefgarne
My noble friend referred to his time as a business manager in the other place. As I recall, he came to be known as the lord high executioner. Is he proud of that?
Lord Jopling
I am really very proud of having blocked a lot of particularly senseless Bills which came before the other House. I am certainly very proud of that aspect of being an executioner.
I hope that when the noble Lord, Lord Wallace, has recovered from this discussion, he will make representations to the Government that we ought to have a government Bill in the very near future dealing with this whole aspect of the law on titles, so that gender equality can be established.
Having congratulated my noble friend Lord Lucas, I am bound to say that I am extremely unhappy that there should be a discretionary element in the way that an eldest female child can inherit a peerage. When the eldest child is a girl, I believe that her succession to a peerage should be automatic. The Bill as it stands makes it discretionary. Given everything that that implies about attempts to get agreement within a family, I cannot think of a surer way of causing disagreement and resentment within families than by making it discretionary.
I fully support Amendment 10, moved by the noble Earl, Lord Clancarty. At the same time, I want to make some remarks about Amendment 34 in my name, which is taken with this general grouping. I well recognise that in some families arrangements have already been made, and expectations already exist, about the inheritance of a title. I have no interests to declare—my title makes me a day-boy, if I may call it that, in your Lordships’ House—but it would be very unfortunate if we were to pass laws about the inheritance of titles that took away from living people expectations that they may have and led to the aborting of arrangements that will have been made and that will be almost impossible to take back.
I believe that the Bill should be effected only for children born after the Bill becomes an Act of Parliament. By doing that, we would not take away any expectation of succession or arrangements that had been made for living people, and it would mean that from the day when the Bill became law it applied to children born after that date. I hope that the House will accept that amendment, and I am most pleased to be able to support the noble Earl, Lord Clancarty, in his efforts to achieve a much fairer method of gender equality.
Lord Trefgarne
My Lords, during the course of our discussion in this Committee stage so far, I have made a number of light-hearted interventions that I dare say have irritated your Lordships, and I apologise for that. May I now make a serious intervention and give a serious response to the Bill proposed by my noble friend Lord Lucas? Like my noble friends Lord Jopling and Lord Caithness, I was not able to be here at Second Reading although I was aware of what was happening. Like my noble friend, I read the Hansard and wished that I had been here.
I very much support the principle that the succession of hereditary peerages should go to the eldest child, not the eldest son, and I would support a change in the law that achieved that. Like my noble friend Lord Jopling, though, I also believe that it is something that cannot be arranged to take place immediately because it would upset all sorts of family arrangements of a very complicated and legal kind, which would be highly undesirable. A number of noble Lords—indeed, my hereditary colleagues—have spoken to me about that, although obviously I will not mention their names. They have family trusts that have been arranged to take account of the fact that their second child, for example, is going to succeed to the peerage. Indeed, I do not mind saying that in my own father’s will he made special provision for the peerage and made it clear that certain things in his estate were to go to the holder of it. As it happened, his eldest son was me so that was fine.
I support the principles of what the Bill proposes. However, I fear there are a number of real difficulties, which have been suggested. I genuinely fear that the Bill is hybrid in one way or another, and I regret that very much. Hybrid Bills cause all sorts of difficulties; my noble friend Lord Jopling will remember that only too well from the distant past. Indeed, when the House of Lords Act 1999 came before Parliament all those years ago, it was thought at some point to be hybrid, although we did not in fact press that argument—other considerations were thought to be more relevant. Whether the amendments now being considered improve matters is a matter of open debate, and I look forward to hearing the further views of noble Lords.
Lord Richard (Lab)
I entirely agree with the noble Lord, Lord Jopling, when he says that the chances of this Bill actually reaching the statute book are extremely slim—indeed, virtually non-existent. In that case, this House, if it is going to consider this subject, must consider very carefully what it is trying to achieve. It is very useful that this House said in an almost declamatory way that it favours the eldest child succeeding to the title whether that child be male or female. I am not sure whether this House can go further than that on this issue.
What I would like to see emerge from the attempts of the noble Lord, Lord Lucas, is a relatively short statement in the form, I suppose, of a draft statute in which we say, first, to which titles the Bill applies and, secondly, the terms of the amendment put down by the noble Lords, Lord Jopling, Lord Pannick and Lord—I have forgotten who was the third noble Lord was. That encapsulates in a very precise and legally sensitive way exactly what the Bill is trying to achieve.
I have been listening to this debate, particularly the debate on the earlier amendments, and I have found them almost incomprehensible. Anybody who has listened to the debate or who tries to read it in Hansard will find it almost impervious. Whether it should apply to people who hold coats of arms seems almost totally irrelevant. Whether it applies to that strange beast which the noble Earl, Lord Caithness, raised, the name of which I cannot remember, but which the noble Lord, Lord Wallace, will use in pub quizzes in future, again seems totally irrelevant. We all know what we are actually talking about; we are talking about peerages in this House and possibility baronetcies. It should possibly be extended to Ireland—I have no particularly strong views about that. As far as the Scottish peerage is concerned, of course it should be extended to it.
In relation to Amendment 13, there is not a word in the Bill about legitimacy. There is a definition of an heir. It says that a title should go to an heir. There may be different definitions of an heir in England and Scotland, but it seems to me that both would come under the terms of the proposal in Amendment 10. Why on earth the noble Earl, Lord Caithness, wants to amend it in that way when all he is in fact doing is declaring what Scottish law already is does not seem to take the argument or the Bill any further.
If we could have a short statement from this House stating clearly to which titles we wish the Bill to apply, and that succession should apply irrespective of the gender of the eldest child, that would be useful. It would not get into law, but it would be a statement by this House about what it wants to see. It might even—who knows?—provoke the Government into trying to do something about it.
The Earl of Caithness
If “living heir” is accepted, does the noble Lord, Lord Richard, accept that it would be irrelevant whether that child was legitimate or illegitimate?
Lord Richard
Of course I accept that the definition of an heir may be different in England and Scotland. It is a matter of Scottish law. All I am saying is that if it applies to a Scottish title, then Scottish law will apply to the definition of an heir. Whatever the definition of an heir is, that heir in future, according to this proposal, will be either male or female depending upon which is the eldest. That is the Scottish position. So be it. The English position may be different. I do not see the difficulty that the noble Earl, Lord Caithness, sees in this. The proposal talks about an “heir”. What is an heir? It is one thing in England and one thing in Scotland. You cannot marry the two together in a Bill; of course not. The noble Earl’s amendment is frankly irrelevant and unnecessary, because Scottish law will apply to Scottish peerages and English law will apply to English peerages. I do not see the difficulty.
Lord Trefgarne
My Lords, the trouble with the line being taken by the noble Lord, Lord Richard, is that he has not taken into account the dreaded European Convention on Human Rights. If we leave the sort of uncertainties which my noble friend Lord Caithness is trying to resolve, someone or other will be off to Strasbourg to try to get it challenged and changed. That is not what we want.
The Earl of Caithness
My Lords, that is exactly the point. I declared at the beginning that I am no expert on this. The advice that I have been given is from an eminent writer to Her Majesty’s Signet in Scotland, and he advised me that it needs to be put into a Bill of this nature.
Amendment 34 of the noble Lord, Lord Jopling, is identical to the amendment in my name and that of the noble Lady, Lady Saltoun, who sadly cannot be here because of the weather conditions in Aberdeenshire; it has exactly the same effect. Both these amendments are consequential on the amendment we are discussing. It would only serve to confuse the Bill if both amendments were automatically passed. Therefore, when the time comes, I hope that we will accept Amendment 34 of the noble Lord, Lord Jopling, and I will try to remember not to move my Amendment 71.
Lord Lucas
My Lords, I have enormous sympathy with the noble Earl, Lord Clancarty, and the simplicity of what he proposes. However, we then need some way back for existing arrangements, such as that suggested by my noble friend Lord Jopling. The difficulty with my noble friend’s amendment is that it does not allow for anything to be done by families who want to change now and who are prepared not to wait until everybody is dead.
I would therefore move my Amendment 46, and consequential Amendments 69 and 70. They adopt the position which would arise from the amendment of the noble Earl, Lord Clancarty, plus that of my noble friend Lord Jopling: the succession to eldest child, irrespective of gender, would start when everyone now living was dead, but families would be allowed to gather together and say, “Actually, we would like this to happen now”, so that we get some sense of change.
My noble friend Lord Trefgarne is quite right that there are a lot of complications in the peerage; sadly, that is not the case with mine—there are no great estates to cause that. However, complications exist, and if we try to trample on those sorts of arrangements we shall only get trouble. We must therefore allow for some mechanism for those to expire over time, although, certainly in respect of my own peerage, I would like to see the change coming as soon as possible.
Lord Wallace of Saltaire
My Lords, I reiterate the Government’s support for equality in its broadest sense, and therefore equality in titles of one sort or another is something which we support in principle. The noble Lord, Lord Jopling, invited the Government to produce at speed a Bill on this issue. Since I have spent the past six weeks consulting on a Bill which the Government produced last summer, and which a number of outside organisations have said should have been subjected very carefully to pre-legislative scrutiny, et cetera, I would not recommend that the Government be in a hurry to produce a Bill on this complex area.
We have heard over the debates on the first few amendments just how complex this whole area is. If we wish to proceed, the way to do so, I would have thought, would be consultation followed by a committee or commission of some sort to make sure that we fully understand what one might be doing.
I have already referred to the previous Government’s attempt to abolish the Lord Chancellorship in one day, and the subsequent discovery that the antiquity of the Lord Chancellorship meant that it had accumulated a great many of the carbuncles to which the noble Baroness, Lady Deech, referred. Therefore, if we are to proceed further on this, we should take our time, look very carefully at the implications—the difference between the English, Scottish, Irish and other dimensions of this—and then perhaps consider further.
Lord Trefgarne
My Lords, if the Minister is proposing a Royal Commission on this matter, that is an admirable proposal and a number of us here would be happy to volunteer to be chairman.
The Earl of Caithness
My Lords, to come back to Amendment 11, given what the noble Lord, Lord Richard, said, which is contra to the advice I was given, it would be wise for me to withdraw my amendment at this stage. However, it is something which, in the discussions and consultation which I am sure the Government will be keen to continue, needs to be looked at.
The Earl of Clancarty
I am heartened by the support that Amendment 10 has had during this debate. I intend to return to it on Report, but for now I beg leave to withdraw the amendment.
The Deputy Chairman of Committees
My Lords, in the circumstances I believe that it is my duty to put the amendment to the voices. Therefore the question is that Amendment 10 be agreed to.
The Deputy Chairman of Committees
Amendment 12 has been pre-empted so it cannot be considered further.
Amendment 13
The Earl of Caithness
“( ) Once succession has passed to a female heir, thereafter the succession shall be in terms of the destination or limitation of the title, but with the succession being traced without reference to gender.”
The Earl of Caithness
My Lords, in moving Amendment 13 I will speak to Amendments 24, 51, 55 and 85.
Amendment 13 is fairly simple. It continues the principle of the eldest child succeeding that we have been discussing, but to give the Bill clarity it needs to be made clear that that will happen.
Amendment 24 is different. It covers the point that,
“where a hereditary peerage is without a male heir, that peerage should automatically pass to the incumbent’s oldest surviving daughter upon the incumbent’s death and should thereafter pass to the oldest surviving child regardless of gender”.
What happens in my own case, for instance? Should my son not have an heir, male or female, but my daughter dies before my son, the title should then go to my daughter’s children. If she does not die, and the provisions in the Bill were enacted, that is how it would go. That is complicated, but I think I have the gist of what I am trying to do with that. I am trying to make certain, were we to change the rules, that the eldest daughter will inherit instead of a son, even though the destination is different.
Amendment 51 is the same as Amendment 13, so I do not need to speak to that again. Amendment 55 is in the name of the noble Lord, Lord Clancarty; I cannot speak to that. It was grouped with this; I might speak to it after he has spoken to it. Amendment 85 is in the name of the noble Earl, Lord Erroll, so I will leave him to deal with it before I come back.
Lord Gardiner of Kimble (Con)
My Lords, as a precaution, I thought it might be helpful to refer to the Companion, which indicates that at about 3 pm, it would be customary on a Friday for the House to resume. I just give that forward notice.
The Earl of Erroll
My Lords, since there is nobody else wishing to speak, I might as well speak to my Amendment 85, which is grouped with this lot. It seeks to leave out lines 13 and 14 on page 4. These say:
“Future holders of a hereditary peerage or hereditary title may not apply for a special remainder under this section”.
I wondered why we were blocking change for the future; is this just to be a one-off change and then it does not change again? Given the complexity of it all, I can see some families taking a while to get their heads around the whole thing and finding it difficult to work out. It may be that the incumbents are very old or do not want to talk about it, so I could not quite see why it had to be a one generation hit only. I may be reading the whole thing wrongly, but it struck me as I was reading it through. I will probably be told that it does not apply to any section that is useful, but I do not know. That is why I put down Amendment 85: to tease out why we are limiting it to the current generation.
Lord Trefgarne
My Lords, I will make a brief intervention. As my noble friend Lord Jopling mentioned a little while ago, all of this started last year when we changed the law with regard to the succession to the Crown. I remember saying at the end of the proceedings on that Bill that the Government had started the hare running as far as the hereditary peerage was concerned. I subsequently learned that a group of young ladies desirous of inheriting titles had formed themselves into a group called the Hares and had lunches every week. With a bit of luck, they will invite me to one of them shortly.
Be that as it may, this is a hugely complicated matter; surely the debates this afternoon have shown that, if nothing else. This amendment is par excellence a huge example of the complications to which I have referred.
Lord Jopling
“Definition of female heir
(1) For the purposes of this Act “female heir” includes a daughter conceived through the use of the gametes of both the incumbent and his wife but carried by a surrogate mother.
(2) The Human Fertilisation and Embryology Act 2008 is amended as follows.
(3) After section 48(7) (effect of sections 33 to 47) insert—
“(7A) A daughter conceived through the use of the gametes of both an incumbent, to any dignity or title of honour, and his wife will be regarded as a legitimate female heir to the dignity or title of honour regardless of whether the pregnancy was carried by a surrogate mother or the wife.””
Lord Jopling
My Lords, when we were legislating earlier in the year to allow the eldest female child of the Crown to succeed to the Crown, I raised a case which I have followed over a good many years now; it was a constituency case when I was a Member of the other House. I raised the case of a child born of a surrogate mother but with the gametes of the Monarch and the Queen—if that is where the succession passed—and I asked whether, over the succession to the Crown issue, that child could succeed. The noble and learned Lord, Lord Wallace of Tankerness, who was speaking for the Government, was not able to answer the question there and then, but he kindly wrote to me again back in March of this year. I wish to quote part of his letter. He said that,
“the child of a surrogate mother cannot succeed to a peerage and the Government is of the view that if succession to the peerage is excluded then a fortiori succession to the Crown must be excluded as well, even though the Crown is not expressly mentioned”.
He went on to say:
“We believe that the law is currently sufficiently clear in this area, but should the issue arise in the future, and the Government of the day disagree, it could, of course, amend the legislation in line with the medical practice of the time. Given the pace of medical advancement in this area this seems eminently sensible”.
My Amendment 14 seeks to allow the children of a Peer and his wife, or rather the eldest child, to succeed to the parent’s title when it is born of a surrogate mother, and where it can be clearly shown that the child is the product of the gametes of that Peer and his wife. Until recently, of course, this would have been a very dangerous amendment to the law and would not have been sensible. It would have been open to what I would describe as “monkey business” and one could have trod on very dangerous ground. However, we now have DNA testing and it can be established with virtual certainty that a child is really the offspring of those who assert that it is. Obviously, a situation of this sort is much more likely to crop up in the peerage than over succession to the Crown because far more people are involved in the peerage. I see no reason whatever why a child who has exactly the same genetic make-up as his or her parents, albeit having been born of a surrogate mother, should not have exactly the same rights as a child born to the genetic mother. I believe that this is fair. It is obviously a novel concept. I wish that we could have introduced this in the Crown Bill, but I am afraid that I thought of it only at the very last moment when I spoke on that Bill—I think on Report. However, in this Bill, when we are talking about succession to the peerage, I think it would be appropriate to introduce this element which science has made possible within the past few years. I hope that your Lordships’ House will accept this amendment. I beg to move.
Baroness Deech
My Lords, some while ago, I was chairman of the Human Fertilisation and Embryology Authority. Little did I think that that post would have any bearing on today’s debate. Without going into the detail, there is no doubt that modern law, including the Human Fertilisation and Embryology Act of a couple of years ago, leads us to the situation that children, however they are conceived, enjoy the same rights as those conceived in the natural fashion. In fact, I think that the amendment goes further than is absolutely necessary—it may be a storm in a teacup—because if the child has the gametes of both parents, it is their child. However, the law says that a child born to a surrogate mother is actually the child of the surrogate mother. The law treats the baby as the child of the mother from whose body it emerged. This amendment would achieve something, but if we are ever going to get a general statement of principle from the Government or elsewhere, it will have to be along the lines that the use of in vitro fertilisation techniques, as in other walks of life, will make no difference to succession to titles.
Lord Jopling
The noble Baroness may recall that I was heavily involved in the 1990 Act following a constituency case, which I mentioned earlier. The law was changed so that in the case of a surrogacy the genetic mother could get an order from the High Court that she be deemed to be the full mother, not the surrogate mother. In this case, no doubt, the same procedure would have to be followed, as in the High Court ruling. At that stage, the genetic mother would be fully the mother.
Lord Trefgarne
I am far from an expert in these matters but, as I understand them, these things can be determined by analysis these days. It is therefore perfectly straightforward to satisfy or solve a dispute as to who was the mother or father. The amendment tabled by my noble friend Lord Jopling goes the right way and I support it.
Lord Lucas
My Lords, I, too, support my noble friend’s amendment. It would have been very useful to the Lord Bengwill of his day—in 1745 he was on the wrong side, or perhaps the right side, and his title was extinguished for a while before being reignited in Victorian times—if he had been able to save a few frozen Stuart embryos, which the society for the restoration of the Stuarts could pop out into this world at regular intervals as proven children of that line. It might cause some confusion. Perhaps things are not quite as simple, particularly for succession to privileges and powers, as they are in ordinary human reproduction, so we ought to take a little care.
Lord Jopling
My Lords, in view of the support that the amendment has received, I hope that it will not be opposed; no one has spoken against it.
Lord Trefgarne
Lord Trefgarne
My Lords, on behalf of my noble friend Lord Erroll, who has had to do something else, I wish to move the amendment. It is, as the Deputy Chairman of Committees says, consequential on Amendment 6. I beg to move.
Lord Trefgarne
The Earl of Caithness
The Earl of Caithness
My Lords, this sub-paragraph relates to age discrimination and states that a female heir succeeding to the hereditary peerage—or hereditary title, as it is called now—
“has attained the age of 21 years”.
That is discriminatory and I ask my noble friend why. I beg to move.
Lord Lucas
I was going to seek some technical help from the Front Bench on this but clearly my noble friend is unbriefed. This is terrible. My understanding—if I remember correctly—is that Lord Ferrers became an Earl at the age of 14 but that he was not able to succeed to the title properly until he was 21. Is that right? Is one allowed to be—
The Earl of Caithness
I succeeded at the age of 16 and was fully entitled to do so but I could not sit in the House of Lords. I took my seat when I was 21, so I have been here for 44 years and my age is still below the average for the House. No other job in the world could ever put one in that position. I think that that is why my noble friend is wrong. The minority in England is 18; in Scotland it is 16. Shall we just drop the “21”?
Lord Trefgarne
My Lords, I had a similar experience to that of my noble friend Lord Caithness. I was 19 when I succeeded to the title. I then had to prove who I was. As I recall, I had to produce my birth certificate and parents’ marriage certificate. I then got a letter from the then Lord Chancellor saying that he would have authorised me to be issued with a Writ of Summons had I reached my majority. I think that those were the words that he used. I did that a couple of years later and duly took my seat in your Lordships’ House.