Succession to Peerages Bill [HL]
(8 years, 7 months ago)
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Lord Trefgarne (Con)
My Lords, this Bill has nothing whatever to do with membership of your Lordships’ House. It concerns only the arrangements for succession to hereditary peerages, which Peers may, or may not, wish to come to your Lordships’ House. It intends only to bring the succession arrangements into the 21st century.
Noble Lords will be aware that most hereditary peerages can descend only through the male line. Thus it follows that in some cases, where there is no male heir, sadly therefore the peerage usually dies out. There are a few peerages, mostly Scottish ones or very ancient ones, which can descend through the female line and there are a very small number of other peerages where the letters patent specifically allow descent through a woman. My noble friend Lord Fellowes, when he comes to speak, will explain from his position of special knowledge some further details on this matter.
There are two other points that I would like to make. First, a number of your Lordships asked me why I do not propose that hereditary peerages simply descend through the oldest child, come what may. Speaking personally, I would have no particular objection to such an arrangement. But the plain fact is that that proposition has been before Parliament on several occasions and has on each of those occasions failed to attract your Lordships’ support. I therefore propose a more modest arrangement. Modernisation of the hereditary peerage should now begin and it is for that reason that I bring this modest proposal before your Lordships. Thus it is that the purpose of the Bill is to authorise succession through the female line in those circumstances where the peerage would otherwise disappear. I hope that your Lordships will agree that this proposition is right and proper in the present circumstances and will agree to the Bill.
I make just one further final point. A peerage is not the only hereditary title within our system. There are also baronetcies and one or two other more obscure hereditary titles, mostly within Scotland. I have received several representations from those representing baronets who would like their titles, too, which like peerages descend only through the male line, to be the subject of this Bill. Again, I would have no objection to widening my Bill in that way, but I fear that any such amendments may be said to be outside the scope of the Long Title and therefore out of order. That is a matter for the clerks rather than for me and I make no further observations.
There is a difference between abeyance of a peerage and extinction of a peerage. It is a highly technical difference and I would not claim to be an expert on it, save to say that abeyance generally applies to the very oldest peerages and may therefore come within the scope of this Bill. I have nothing more to say in connection with this measure and I hope that it will find favour with your Lordships. I beg to move.
Lord Pannick (CB)
My Lords, I congratulate the noble Lord, Lord Trefgarne, on bringing this Bill before the House and on doing so in such economical terms.
No one could suggest that a Bill on this subject is premature. The Sex Disqualification (Removal) Act 1919 removed sex discrimination in relation to the exercise of public functions, or the holding of any civil or judicial office or post, or from entering or carrying on any civil profession or vocation. Yet here we are, nearly 100 years later, debating a Bill that will remove some of the inequality—although, as the noble Lord said, only some of it—in relation to succession to peerages. This is a quite remarkable situation.
Women were given the same voting rights as men in 1925. The Equal Pay Act 1970 and the Sex Discrimination Act 1975 addressed sex discrimination in employment, education and in the provision of goods, facilities and services. Even the Church of England, not known for being in the advance of social progress, has now provided for women bishops, and Parliament has provided recently that succession to the Crown no longer depends at all on a person’s gender—see Section 1 of the Succession to the Crown Act 2013—and rightly so. The only area of public life that I am aware of that retains institutional discrimination against women is the hereditary peerage.
I can think of only one argument in favour of such prejudice: that the hereditary peerage is so absurd and anachronistic an institution—why on earth should a person’s status depend on that of his or her father—that we cannot expect to apply basic principles of fairness in that context. But that will not do. The peerage is not a private club. Indeed, 92 hereditary Peers, of whom the noble Lord, Lord Trefgarne, is a distinguished example, sit in this House helping to make the laws of the land. The peerage cannot claim to be exempt from the basic principles of fairness that govern the rest of our society.
In this context, as in others, discrimination against women is simply objectionable. It is entirely without justification and we have tolerated it in relation to the peerage for far too long. I therefore welcome the Bill because it puts this issue on the parliamentary agenda.
But the Bill, as drafted, is patently inadequate. It will need substantial amendment in Committee. Clause 2(3) would allow a woman to succeed to a title if she has no male siblings. If she has younger male siblings, they will have precedence over her. The noble Lord, Lord Trefgarne, said in a quite remarkable statement that his Bill aims to bring succession to the peerage into the 21st century—really? He said that his proposal is modest, but it will perpetuate sex discrimination and for that reason it needs to be amended.
If the oldest child of the monarch now succeeds to the Throne, whether they are male or female, how can it possibly be defensible to retain a position that the oldest male child of a Peer will succeed to the title? If this Bill were to be enacted, then in the magnificent creation of the noble Lord, Lord Fellowes, “Downton Abbey”, as I understand it the Earl of Grantham would now be succeeded by his eldest daughter, but only because he had no sons. However, a younger son would retain precedence over an older daughter. That is quite indefensible.
In his play, “A Woman of No Importance”, Oscar Wilde wrote:
“You should study the Peerage, Gerald … it is the best thing in fiction the English have ever done”.
It is time that we brought the peerage into the real world. The peerage has hitherto treated women as being of no importance. This Bill, which is a modest improvement, would treat women as being of very limited importance. The peerage needs to do better than that. I congratulate the noble Lord, Lord Trefgarne, on introducing the Bill and I look forward to noble Lords improving it in Committee.
Lord Fellowes of West Stafford (Con)
My Lords, I rise to support the Second Reading of this Bill, and I must immediately declare an interest. My wife was born female, something of which I am very glad, but the fact remains that had she been born male, she would now be the fourth Earl Kitchener of Khartoum. As it is, our law preferred to let this title, probably the most historic of any of the imperial creations, become extinct rather than have it be held by a woman. As the niece of the last Earl, the reason she does not have that rank is only and entirely due to her sex. Of course, she is expected to take on the duties of the name, to be president of the Kitchener charities and to award the Kitchener scholarships, but the name she may not have because she is female. And if noble Lords think I find that extraordinary in 2015, they would be absolutely right. The fact is that women born into titled families are non-persons. They have none of the legal status of their fathers and brothers and none of their rights, even if they are sometimes obliged to perform their duties. It is an absurd and outdated situation.
Of course, there are many, no doubt some in your Lordships’ House, who would be happy to see the end of hereditary titles altogether, but that is not what we are debating here. They exist at the heart of many modern institutions and they enshrine an attitude to women that has no place in modern society. We may hear that the exemption of women will bring these titles to a natural end more quickly, but it will not. There are more than 800 of them, and especially the older ones will live on indefinitely without the intervention of a new law. It would be statistically impossible for a situation ever to arise where there was no heir to the dukedom of Norfolk, the earldom of Derby, the earldom of Devon or many others. There may be an argument for abolition, but there is no plan to abolish them yet. While they exist, are we prepared to tolerate the negative status of women they represent across the board, with the exception of a few Scottish titles and a tiny handful of English baronies?
An argument in this debate that always strikes me as questionable is when a speaker will say, “Why should we bother with this? Why spend useful time on it when we have more important things to do?”. This has the double benefit of conferring a place on the moral high ground to the speaker, showing how unsnobbish and unfrivolous they are, while at the same time changing nothing and leaving women at the bottom of the pit. But it does not wash because the suggestion that holding a title is no longer of any importance in Britain today does not wash. It is still a privilege to hold one, and it is a privilege that is denied to women.
It is true that there was a belief in the 1960s that by stopping their creation, the status of the hereditary aristocracy would soon fade and be replaced in terms of public profile by the life peers, but this has not happened. You will find holders of hereditary titles or their wives on the boards of many, if not most, charities, chambers of commerce, universities and hospitals, to say nothing of the Court, where almost every major position is still conferred on a hereditary Peer or his wife. I am sure, indeed I know, that many of these people take their appointment seriously and do excellent work, but that it is clearly thought by the authorities that their noble names will add lustre to the various organisations is proof that a hereditary title is still viewed by the public as conferring distinction, however illogical that may be. If, therefore, holding a hereditary title can be construed as a distinguished position and a privilege, how can we allow women to be excluded solely because of their sex?
Of course, there may be—I am sure there are—many of your Lordships who think that the trouble with my noble friend Lord Trefgarne’s Bill, as we have just heard, is that it does not go far enough and that the peerage should follow the Crown’s example and simply have succession in order of birth, with the firstborn inheriting irrespective of sex. I do not propose to put up a stout argument against this because I believe in it. However, I would point out only that there have been several attempts to encourage some interest in the idea, but it never gets off the ground, and the reason is simple. An immediate change now to eldest child inheritance would mean that a great many men would be stripped of their courtesy titles and the names they have lived under for years, and so would their children. It would mean that the financial arrangements that have been designed to protect a large number of families’ interests would be wrecked, and that those same families would be facing an intolerable position, dividing siblings and bringing real unhappiness.
The Royal Family took advantage, very sensibly, of a moment when the next three heirs—two then, but three now—were male eldest children and so nobody would be deprived of anything. By the time the new law will have any effect with Prince George’s daughter or granddaughter, the public and the Royal Family will have had many years to make the necessary adjustments and to grow used to the plan. The peerage would have no such luxury. Because of that—this is the point—as things stand, no such Bill will ever pass. However, once the law has been changed to give women at least some legal status within noble families, and once they are allowed to pass on the rights that their brothers can pass on, I am reasonably convinced that public opinion will cease to regard female Peers as anything very unusual and the climate will alter, perhaps leading to further reform. But we have to take the first step, and this Bill is the only first step that may pass into law.
Of course there will be losers, even in the proposed scheme. No one will be stripped of a courtesy title, and almost no one will have their financial arrangements disturbed since most Peers without a son nowadays rightly prefer to leave their fortunes to their daughters, whether or not they can control the descent of their title. But there will be heirs presumptive who will have to yield the senior position in the succession to their nieces or cousins. I would point out only that heirs presumptive have never enjoyed the security of heirs apparent. There has always been a chance that the Peer in question would marry again and produce a son, thereby displacing a more distant relative. My own cousin lost a baronetcy, which he had assumed was his until half way through his 20s, when a baby boy was suddenly and rather surprisingly born. The father of the present Marquess of Northampton was 61 when his son appeared, no doubt putting a few noses out of joint. But even the displaced heirs will not lose their rights entirely. They will merely have to step back to allow a better position in the queue to their female relatives who will have a senior claim—and what is wrong with that?
The advantage of allowing the revival of peerages made extinct in the present reign is twofold. It would seem harsh to exclude living women who would have had the right to succeed under the new system, and by including them there can be no risk of opening the running sore of legal action to defend their rights. This change will, or should, allow all female heirs who were alive when the last holder of their family’s peerage died to make a claim within one year of the Bill’s becoming law. Of course, some will not, and many of the extinct peerages were new and had no heirs, male or female, but there will still be a number of them, which is the strength of the clause.
By the measure, there will immediately be a group of hereditary lady Peers who will render the situation normal. It will not be necessary to wait for three-quarters of a century for a sufficient number to build up to make it ordinary. Of course, to quote Mandy Rice-Davies, I would say that, wouldn’t I? The fact is that my wife’s situation does not make it any less true. The sooner the female hereditary Peer becomes ordinary, the sooner these women are accepted within the traditional system, and the sooner the climate may be right for further reform.
In short, if your Lordships believe there should be no area of our public life where women are made nothing, please support this Bill. If you would like to see total equality, support this Bill to get the process started, because if you do not, there will be no change. If you believe that women are the equals of men and that leaving them as non-persons in any part of our constitution is wrong, support the Second Reading of this Bill. In fact, your Lordships should oppose it only if you believe that it is quite correct for women to occupy an inferior position, and be denied all rights, on so public a stage. The choice, of course, is yours.
The Earl of Clancarty (CB)
My Lords, I am grateful to the noble Lord, Lord Trefgarne, for the opportunity to discuss this issue. I have a hereditary title and I have a daughter who could inherit that title if the law were changed. I should also say that my wife, the journalist Victoria Lambert, is a co-founder, with Liza Campbell and Sarah Long, of the campaign group that wants to see gender discrimination removed from titles.
We now have women bishops. Since 2013 women, including Dame Ellen MacArthur, can be members of the Royal Yacht Squadron. From this year, women can be members of the Royal and Ancient Golf Club of St Andrews, and this year as well, women competed for the first time on the same day as men in the equivalent Oxford and Cambridge boat race. These changes will not apply to all women; they are niche changes, but nevertheless significant ones for the advancement of gender equality. So it should be with hereditary titles; women should have an entirely equal chance of inheriting a title.
There are those, of course, who do not believe in the hereditary system at all because of its innate unfairness and think that it should be swept away. Not all of those people will be anti-monarchists, and it is worth reflecting on the fact that the monarchy itself is simply a part—the top part, certainly, but a part of the wider system of hereditary titles. If hereditary titles are unfair, so is the monarchy. They are part of the very same system. As long as we have the monarchy—and it remains hugely popular—the system as a whole needs to be dealt with in the same way that the monarchy has very correctly been dealt with through the Succession to the Crown Act. Otherwise, the system remains inconsistent in terms of gender equality, which is unsatisfactory.
The titles themselves are not abstract. They are the property of the Crown. It needs to be more widely recognised that the great majority of these titles and offices, which are owned by the Crown, and for which it has responsibility, are gender-discriminatory. There are significant wider ramifications. One is that titles often go with other possessions which means that women can sometimes be excluded from the home they grew up in through the inheritance of a title by a stranger—a distant relative from the other side of the world—because there are no boys in the immediate family. That is not uncommon. Also, what should not be underestimated is the influence that this system has at all levels of society when women can still be left out of inheritance entirely because that is the way things have been done. Nor should we ignore what continuing influence such gender discrimination has abroad.
In terms of the Bill itself, it is worth noting that when we discussed this topic last at the Committee stage of the Equality (Titles) Bill, introduced by the noble Lord, Lord Lucas, the year before last, with the will of all sides of the House behind us, we were heading at the time the Committee stage was halted towards a greatly simplified Bill that stated simply that the eldest child of either sex was the one who would inherit. In my view, that is the Bill that should go to the Commons, and which would stand the best chance of being passed. Clause 3(2) of this Bill, which still allows men to inherit before women, and is therefore gender-discriminatory, must go. Surely it contradicts current equality legislation.
There are those who say, “But what about the expectations of young men?”—to which the reply is, “What about the expectations of women?”. In contemporary times this cuts both ways. The hopes of young women are as valid as the hopes of young men. The previous Government said that this change would be,
“far more complicated to implement fairly”.
The answer to that is clear. If the Government can sort this out for the Royal Family, with all the international complications involved, a simple, effective Bill can do the same for the other titles which the Crown owns and has responsibility for.
Baroness Flather (CB)
My Lords, as noble Lords will have noticed, I am British but not English and I look at a lot of things in a slightly different way. When I came to your Lordships’ House in 1990, I was the only Asian and the only minority woman in this House. The House was full of hereditary Peers, and I was worried about this because I had not met any aristocrats before I came to your Lordships’ House. I wondered how they would treat me. I can tell your Lordships that I was treated better in this House by the hereditary Peers than I have ever been treated anywhere else in my life. They became my friends—and my entertainment as well—and I learned a lot from them. They had a great sense of humour and they had a light touch about life. I have to tell your Lordships that I miss them and I have great affection for hereditary Peers.
That is by the by. We are talking about the Bill. When I saw it on the list I thought that I must speak because I must support it. Then I read the Bill and I got really quite upset. I thought that I was going to support something that I have always wanted: the eldest child inheriting regardless of gender. I cannot put it better than the noble Lord, Lord Pannick. He is the ultimate person for saying the piece. I am delighted with and endorse everything that he has said.
I am not sure about the other Bills because I am not very good with dates, but the other Bills may have come before we decided on the monarchy. They may have come before we had decided that the eldest child will be the next monarch. That will make a huge difference in people’s thinking: if the eldest child is a girl, she will inherit; if the eldest child is a boy, he will inherit. If they can do it, I cannot imagine that this House cannot do it.
I listened to the noble Lord, Lord Fellowes, with interest. He is really worried about the situation of some of the boys: how are they going to live? How are they going to manage? They will not have the amount of money that they would have had. In the old days they got sent to the colonies, as we all know. The younger sons were all sent to the colonies. You have not got any colonies so we have to find some other way of finding employment for them. Maybe it will encourage them to become professionals and to become more able to fend for themselves. That also would not be a bad thing.
In the case of Countess Mountbatten, Earl Mountbatten did not have a son. It had to go through Parliament to pass the title to Countess Mountbatten. Of course that is wrong. Viscount Whitelaw did not have a son and his title has died. It is quite right that that should not happen. If we want to make a change we have to make it gender neutral, as the fashionable term is these days. It has to be the eldest child. Thank you very much.
Lord Northbrook (Con)
My Lords, I welcome my noble friend Lord Trefgarne’s Succession to Peerages Bill. As an aficionado of the topic, I declare an interest as my title will die out under current peerage inheritance rules. I have a very capable eldest daughter who would be more than suitable to carry it on.
I believe that the Bill offers a way forward to prevent this extinction without seriously threatening the status quo for those peerages where there are male heirs. It is better than Lord Diamond’s Bills of 1992 and 1994, which proposed that hereditary Peers could petition the Crown to amend their letters patent so that the peerage could descend to the eldest legitimate child, male or female. It seems more logical than my noble friend Lord Lucas’s recent Bill, which sought to enable the succession of female heirs to hereditary peerages if the incumbent of the peerage wrote to the Lord Chancellor to ask that this should occur. I prefer it also to Mary Macleod’s Succession to Hereditary Peerages and Estates Bill in the other place, which included provision to remove male preference primogeniture in succession to hereditary peerages.
After the Succession to the Crown Act has passed, it seems only logical that appropriate change should be made for hereditary peerages. The House of Commons Political and Constitutional Reform Committee’s 2011 report on the rules of succession to the Crown noted that the proposal to end the preferential treatment of men in the line of succession had been,
“widely welcomed, and with good reason”.
It also drew attention to holders of hereditary peerages, noting that,
“the way in which their titles are inherited, and its effect on the gender balance in Parliament, remain matters of public interest”.
My noble friend Lord Fellowes of West Stafford stated in a submission to the Hereditary Peerage Association in 2008:
“People will tell you how difficult it would be and how it would involve re-creating all the peerages from new. … When”—
in the 1700s—
“the Duke of Marlborough was needed for another campaign and his only son was dead, a bill was introduced into Parliament granting a new remainder allowing a unique form of female descent to the existing title, without recreating it”.
As we have heard, my noble friend Lord Fellowes has now approved what are essentially the contents of this Bill, based on the Marlborough precedent.
In the same submission, my noble friend Lord Fellowes touched on his concern that, if nothing is done in this sphere, European law may step in with a solution of its own. The noble Lord, Lord Pannick, surprisingly did not mention it, but as I understand it Section 14 of the Human Rights Act 1998 makes it now illegal to discriminate on the basis of sex, where both sexes may perform the function required. Discriminating against women solely on the basis of their sex is also illegal. The noble Lord, Lord Pannick, has also mentioned to me that, if a legitimate female issue, where the peerage would otherwise become extinct, referred a case to the European Court of Human Rights, they could well have a chance of success. The organisation called The Hares—I think I see a couple in the audience—may well pursue this route, or much worse could happen if Mr Corbyn gets into power. It is far less disruptive to peerages, in my view, to pre-empt such a referral by enacting this Bill. Will the Minister give the Government’s thoughts on the outcome of such a referral, and their reaction to it?
I can understand the logic of Clause 3, which would guarantee a batch of new Peeresses, making the peerage look refreshed and modern from the first moment of the change, as opposed to having to wait years for any alteration really to show, and 1952 seems a sensible date. It is striking that there are currently no women on the most recent register of hereditary Peers who have put themselves forward to be eligible as candidates for future by-elections. All the hereditary by-elections since 1999 have been won by men. As of now, only one Peer of the 92 hereditary Peers who were allowed to continue in 1999 is female.
I have two other issues to raise. I think that there should be an amendment extending the change to baronets, although I take the point made by my noble friend Lord Trefgarne about that being outside the Title of the Bill. I am not sure either about the principle in the Bill of excluding a very close relative such as a brother from inheriting a peerage. Ruling out cousins and distant relatives is fair enough as their expectations are never high, but a very close relation may be a step too far. As the noble Lord, Lord Fellowes, stated, family financial arrangements could be seriously disrupted. There could be an argument for an amendment extending the peerage succession to brothers—a modification of the semi-Salic system, although it has to be said that an heir presumptive has never had the security of an heir apparent.
But overall I welcome this Bill wholeheartedly. It would merely put peerage succession on to the same basis as the Crown used to be. I wish it a safe passage through the House.
Baroness Hayter of Kentish Town (Lab)
I thank the noble Lord, Lord Trefgarne, for bringing this issue to the House, if only to tease out the Government’s and, indeed, the Opposition’s, view on the issue.
It is obvious that the Bill will not affect the size of the House one way or the other, yet, of course, that is the big issue that concerns probably all noble Lords, as evidenced by the debate that will take place here on Tuesday. The increase in the size of your Lordships’ House to 826 gives great urgency to reducing the number of Members rather than suggesting ways of bringing in a new category of Peer. Indeed, as we know, the Prime Minister has already appointed in five years more than double the number of Peers that Labour did in 11 years, creating new Peers at a faster rate than any other Prime Minister since life peerages began. Therefore, it seems to me that the priority for the House is to look at size rather than this issue. That is partly for the sake of this House and how it works but also, I have to say, because of the anachronism of appointing Peers here not by virtue of their own experience and attributes but those of their fathers, grandfathers or even great-uncles. Therefore, ending the hereditary by-elections as any of the 92 places fall vacant should surely be a better way forward. The calls I have heard today for maintaining the status of titled families are ones I did not believe I would hear in the 21st century. But more than that, as has been said, the flaw of the Bill is that it stands feminism on its head. For the very pragmatic reasons that the noble Lord, Lord Trefgarne, gave, it does not get rid of primogeniture for hereditary titles but says only that, where there is no man, a woman will do.
Your Lordships will have noted that there is only one other woman speaking today, which I think says something about how our sisters in the rest of the House feel about this issue. Perhaps they are not present because they also regard this Bill as deeply anti-feminist. It is saying, “Let us have some more women in this House”, of which I approve, “not for what they have to offer, their experience, knowledge, ability, insights, professionalism or anything like that but because some male forebear either fought, bought—
The Earl of Clancarty
I accept entirely that hereditary peerages will be removed from this House. Sooner or later that will happen. However, this Bill has nothing to do with hereditary peerages in this House, as the noble Lord, Lord Trefgarne, said.
Baroness Flather
I know that I am the only other woman speaking, and, as I said, I am not even English, but the noble Lord, Lord Pannick, and the noble Earl, Lord Clancarty, made the same points that I did. They did so very strongly and in some ways better than me.
Lord Winston (Lab)
I am very grateful to my noble friend for allowing me to say a word. I want to be a loyal member of a paid-up Labour Party. I suspect, although I do not know, that there are quite a few disloyal members. However, I do not understand the argument here. Surely we are not talking about membership of the House of Lords or the size of the House; this is a different issue. We have to accept that we have to address that issue in a logical and rational fashion. I understand that on the whole my party is not particularly favourably disposed to the hereditary peerage for whatever reason. However, that is not really what we are discussing here, is it?
Baroness Hayter of Kentish Town
What we are discussing is whether as a House we want to continue with titles and the privilege and status—I think respectability has been mentioned—and whether that is a priority. Surely, if we are to do anything, the priority is to do something about the peerages in this House. That is something my party would like to do by removing by-elections for hereditary Members.
We want women, whether in this House or with the other titles they may earn, to get them by their own ability. The examples are the women who serve in this House. They may get damehoods before they get here. We would not want those to be inherited, I assume, because the awarding of a title is about what they have done for themselves. The point I am trying to make—perhaps ineffectively—is that surely the priority is for more women, whether in this House or with other titles such as dame, to receive them by virtue of what they have done for themselves. The examples I want to give are the people who have got peerages here on their own abilities rather than the abilities of some male forebear.
The noble Baroness, Lady Grey-Thompson, was a dame before she came here. She did not get that because her father was a great athlete. She got it because she had won 16 Paralympic medals, 30 world titles and the London Marathon six times; she chairs the Women’s Sports and Fitness Foundation; and she was BBC Wales Sports Personality of the Year. The noble Baroness, Lady Benjamin, is an actress and television presenter, and chancellor of the University of Exeter. The noble Baroness, Lady Finlay, is past president of the Royal Society of Medicine and a consultant professor of palliative medicine. These are women who have gained their titles—which happened to bring them here; some of them had damehoods before—because of what they did. Those are the examples I want to give.
There are, of course, people such as the noble Baroness, Lady Harding of Winscombe, the chief executive of TalkTalk and named as one of the 10 most influential women. She happens to be the daughter and granddaughter of Peers, but has her title because of what she has done in her own right.
Baroness Hayter of Kentish Town
Could I just finish with this example? I am arguing that the Bill seems to be based on the continued assumption that women should not gain a title—recognition—because of what they have done but because of what a father, grandfather or great-uncle did. I give way to the noble Baroness.
Baroness Chisholm of Owlpen (Con)
I am sorry, my Lords, I think in this debate you cannot give way—you just have to keep going.
Baroness Hayter of Kentish Town
I am delighted to get that bit of advice. The assumption behind this—that because there are titled families the best way to deal with that is to pass the title, where there is not a man, to a woman—is, in the 21st century, the wrong assumption. As a feminist and on behalf of the other women here who have great experience in the trade union movement, for example, and who have won their spurs by their own efforts, I say that that is the way we should recognise women, not because of what their male forebears have done. If a woman wants a title, I say, “Do the same as anyone else. Go out and earn your spurs. Work in civil society, trade unions, business, academia, medicine or law”. That, surely, is the way to be recognised and to be valued in society. In the 21st century, that is the feminist way forward—not to inherit a title because of a male forebear.
The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)
My Lords, I, too, congratulate my noble friend Lord Trefgarne on securing this Second Reading, which has provoked an engaging, thoughtful and at times entertaining debate. Among his many accomplishments, I know that my noble friend has spent much time supporting the excellent Brooklands Museum, which I thoroughly recommend to your Lordships, where he has helped to conserve and restore to life the gems of British motoring and aviation. Today his intention and energy has turned to protecting and conserving that other part of our nation’s history, the peerage.
My noble friend’s energy and tenacity is obviously shared by a number of your Lordships who have spoken today. Although it is invidious to single out anyone in particular, I thank my noble friend Lord Fellowes for his passionate contribution to the debate. He is clearly following in the footsteps of the great Lord Kitchener and becoming the recruiting sergeant for this campaign. I can see the poster now: “Your peerage needs you!”.
This debate reminds me that while a number of your Lordships have spent many years looking into this issue I am a mere novice, trying to get my GCSE on issues such as abeyance while many of your Lordships clearly have doctorates on the subject, so forgive me for stating the obvious and repeating a point made before. This Bill, as its title suggests, is about the succession of peerages. Its purpose is to ensure hereditary peerages do not die out and like that noble prince in Sleeping Beauty, it aims to give the kiss of life back to peerages that now lie dormant. Its primary purpose is not therefore to address the inheritance of peerages discriminating against women, which I know that a number of your Lordships have debated before.
This latter issue—the equality of treatment before the law—is one that this Government take seriously in every walk of life. As the noble Lord, Lord Pannick, and others have said, during the last Parliament the coalition introduced what became the Succession to the Crown Act 2013, which removed, as your Lordships know, the male bias with regard to the descent of the Crown. We therefore sympathise with the concerns over gender inequality in the area raised and discussed by your Lordships today.
However, as your Lordships know better than me, and as has been pointed out, addressing this area of discrimination means tackling a very thorny legal thicket. Over the summer, I asked my officials to give me the relevant debates on this issue. I rather regretted that, as I got a very large pile of reading for my deckchair. As I ploughed through those previous debates, I must confess that I felt as if I was reading a mix of Jarndyce v Jarndyce and “Kind Hearts and Coronets” with a good sprinkling of “Downton Abbey”. Indeed, as Dickens described Jarndyce v Jarndyce:
“Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it”.
The same could be said of this issue.
With that in mind, while it is obviously true that the succession of most peerages does not treat men and women equally, one must ask whether the Government ought to be devoting time and resources, both of which are limited, to addressing this extremely complex subject. Discrimination on the grounds of not just gender but race and age is clearly and sadly present in many parts of society and, despite the efforts of this Government and their predecessors, continues to blight the opportunities of many people—many more than those affected by the issues we are discussing today. When it comes to our approach to tackling discrimination, addressing these wider aspects is the Government’s priority.
I realise that these words will irk some of your Lordships and those who have campaigned on the issue that we are discussing. As has been mentioned, I see that a group called The Hares has been specifically created to lobby for a change to the law to create gender equality in the peerage by ending male primogeniture. I fear that to them I am yet another tortoise whose plodding is holding up progress but I assure your Lordships that I am more than willing to hear of ways in which this area of discrimination might be tackled. Let us not forget that, in the end, the tortoise wins the race.
The fact is that the Bill would have a very limited impact in addressing the fundamental issue here, namely gender inequality in the succession of hereditary peerages. As the noble Lord, Lord Pannick, pointed out, Clause 2(3) of the Bill explicitly states:
“Within each group of siblings”,
male heirs,
“in order of birth and their issue”,
would succeed before female heirs in order of birth and their issue. The Bill therefore permits women to inherit hereditary peerages only when there is no direct male heir. Surely, if we are to achieve equality in this area, the first born should inherit the title irrespective of their gender. I am not alone in saying this. The campaign group The Hares described the clause in an email to me as,
“clearly gender discriminatory. Under present equality legislation this is unacceptable”.
I also draw your Lordships’ attention to Clause 2(2), which states that,
“any daughter (‘D’) and her issue shall be treated for the purpose of succession as they would be treated if D had been male, save as provided by subsection (3)”.
It is not clear whose daughter is being referred to and whether this provision excludes female relatives, other than a daughter of the incumbent, from inheriting a peerage. If that is the case, this further highlights the Bill’s inadequacy in promoting gender equality.
I will now explain the concerns that the Government have with Clause 3, which provides for the revival of peerages that have become extinct. Given that we believe that many peerages have the potential to fall within the scope of this clause, it is vital that there is thorough consideration of and consultation on the significant impact this clause could have. To begin with, the effect of immediately reviving a large number of extinct peerages should not be underestimated. Before a peerage can be revived, its provenance and the right of the individual in question to inherit must be proven before the peerage can be entered on the Roll of the Peerage. The Bill would therefore create a considerable amount of additional work for the Crown Office and, most probably, the College of Arms. If the descent of a title were in any way unclear or contested, it could take years for matters to be resolved. I can almost hear the solicitors in Lincoln’s Inn rubbing their hands with glee.
Clause 3(1) states:
“For any peerage which became extinct on or after 6 February 1952”,
the Bill shall vest the peerage,
“in the person who would have succeeded to that peerage if the universal rule of succession had applied”,
to it since 6 February 1952. The Bill therefore proposes that the line of succession for all peerages that became extinct on or after 6 February 1952 is to be traced back and potentially altered from that exact date. This is very likely to have odd, and potentially unfair, consequences in some cases. For example, suppose a now-extinct peerage had been inherited by a distant male relative after 6 February 1952 and that male relative had since died. It may be the case that, applying the “universal rule of succession” from that date, the title would not have been inherited by that male relative but by a closer female relative instead. In that case, according to Clause 3(1), the fact the peerage had been inherited by the male relative would be ignored. Instead, the inheritance would be retrospectively redirected through the female. This is not only a somewhat strange method to adopt but could affect the legitimate expectations of the male relative’s successors who wished to revive the peerage. Clause 3(1), which applies the new rule of succession on and after 6 February 1952, would therefore appear to be incompatible with Clause 5(3)—which states that the Bill will not affect any succession to a peerage which has already taken place. Similar issues arise in respect of Clause 3(2) and (3), which make provision for peerages which became extinct before 6 February 1952. These are changes that should not be undertaken lightly without proper consideration of their effects or of any potential unfairness or conflict they could cause.
Turning to the issue of the inheritance of land associated with some peerages, Clause 5(2) states that the Bill, if it were to become law, would,
“not affect the succession to land or any other property real or personal”.
It should be noted, however, that there are a number of hereditary peerages which carry estates, either by virtue of the terms of the instrument creating the peerage or as a result of a trust arrangement which has been put in place in order to ensure that the peerage and property descend together. In those cases, the Bill would create a strange system whereby property would continue to be inherited by the oldest male heir even if, under the Bill’s provisions, the title went to a female heir, leading to titles being split from their associated estates. It would be impossible to say how many titles would be affected by this provision, given that trust arrangements are often confidential matters. This is another aspect of the Bill that would have to be carefully considered in order to prevent any unintended consequences.
My noble friend Lord Northbrook raised the issue of the ECHR and Article 14. During my summer reading, I also had the opportunity to look into it. The prohibition of discrimination set out in Article 14 of the ECHR applies only in conjunction with other rights set out in the convention. The right to peaceful enjoyment of one’s possessions is set out in Article 1 of Protocol 1 to the convention. It has been argued—unsuccessfully—that Article 1 of Protocol 1 applies to hereditary peerages and the right to inherit a peerage, and therefore that accession to hereditary peerages engages Article 14. Although peerages have been described as a type of property under English law, there is Strasbourg case law to the effect that nobility titles cannot be regarded as possessions within the meaning of Article 1, Protocol 1.
The High Court of England and Wales has confirmed that the right to sit and vote in Parliament by virtue of a hereditary peerage is not a possession. Furthermore, Strasbourg has held that Article 1 of Protocol 1 applies only to a person’s existing possessions, not future ones. It does not guarantee the right to acquire or succeed to possessions. Therefore, as Article 1 of Protocol 1 does not extend to peerages or the right to succeed to a peerage, Article 14 cannot be engaged. It is highly unlikely that a successful claim could be raised under the Human Rights Act 1998 in the UK domestic courts, as the Act does not apply to the Lords Select Committee on Privileges and Conduct, which is the only domestic court with jurisdiction to hear peerage claims.
To conclude, I fully understand the interest and passion that this issue raises for some families, but as your Lordships would, I hope, agree, one of the great strengths of this House is to legislate with care and caution, to kick the tyres of policy and to think through the consequences of our actions. In that spirit, I hope that I have clearly set out the Government’s reservations about the approach set out in the Bill.
The Bill itself fails properly to address the issue of gender discrimination in the succession to hereditary peerages: rather, it provides a means by which hereditary peerages which have died out can readily be revived. In addition, the Bill raises numerous problems and concerns, particularly relating to Clauses 2 and 3— problems which would take up a significant amount of parliamentary time and consideration in attempting to work out. Indeed, they may never be resolved, due to considerable uncertainties as to whom the provisions of this Bill may adversely affect and the likely unintended consequences were it to become law.
By making a single, rather sweeping change to the descent of all hereditary peerages, potentially the Bill would affect a considerable number of families in different ways, according to their own individual circumstances.
The Earl of Caithness (Con)
My noble friend has spoken on this point, and we have listened with care. Can he tell us how many peerages have become extinct since 6 February 1952?
Lord Bridges of Headley
I will have to write to confirm that, but I am led to believe that there are scores. I will need to write to my noble friend to confirm that.
In some cases, the Bill will lead to the disinheritance of individuals with legitimate expectations to inherit an hereditary peerage. Whereas the Succession to the Crown Act could be introduced without disturbing the legitimate expectations of anyone in line to the throne, I suggest that even with lengthy and detailed consideration and research, it would be impossible to foresee clearly all the effects of the Bill. At the very least, such a change should not be undertaken without extensive consultation and public discussion.
Above all, I hope that your Lordships would agree that given this complexity, the Government’s priorities should rightly lie elsewhere, as I said at the start.
Let me conclude by stressing that I hope that all I have said will be seen as constructive criticism. The Government recognise the inherent inequality in the succession of hereditary peerages and are happy to consider further attempts by interested parties to address the multitude of issues of gender discrimination which overcome the complexity that I have outlined.
Lord Trefgarne
My Lords, I am grateful to every noble Lord and noble Baroness who has contributed to this debate, and particularly grateful to my noble friend the Minister for his lengthy, interesting and detailed reply. I am reminded that back in 1956 a case came before Parliament relating to a peerage that had gone into abeyance in 1302—so there is some complexity in these matters.
I have an open mind on many of the issues that have been raised during the debate, and I shall be happy to consider amendments that might correct the anomalies referred to, particularly the one referred to by the noble Lord, Lord Pannick, and repeated by others.