House of Lords (Hereditary Peers) Bill

Earl of Devon Excerpts

Committee stage
Tuesday 25th March 2025 Lords Chamber

[Lord Inglewood (CB)]

My Lords, this is a probing amendment. What I am suggesting is a stalking horse, so the detail is not important other than to engender discussion and debate. It is the reasons which lie behind it that matter. Dr Johnson, that quintessential Englishman, was clear when he said:

“Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully”.


And so I have been thinking.

Looking back to the last time the House considered the matters we are discussing now, some 25 years ago, I find that some things are similar but others are not. In particular, the wider political context is vastly changed. At that time, we were all basking in the glow of the collapse of the Berlin Wall and its political and emotional consequences. Now, sadly, it is all very different. Since those heady days, a great shadow has fallen across the globe. Democracy, freedom and the rule of law have lost at least some of their appeal and popularity, and with it some of their resonance and potency. They have been replaced all around the world by new personalities, new policies, and new political approaches and priorities which are greatly at variance with our national traditions and values. The concept of “good chaps” from the noble Lord, Lord Hennessy, then generally accepted across the political spectrum here in this country, is at best questioned and at worst dismissed in some quarters.

As I thought about the implications of the Bill in a wider context against this background, it became apparent to me how potentially fragile some of our constitutional arrangements might be. Members of the Committee should forget about the Salisbury/Addison convention and rather focus on the Parliament Acts. In raw political terms, an unscrupulous and determined Government with a big majority of seats in the House of Commons—which we know does not necessarily require as huge a number of votes in the country as one might expect, under the rules of our existing electoral system— could, in pretty short order, completely alter the entire composition of the second Chamber or even abolish it entirely, as happened under the Commonwealth.

I know from my time on the Constitutional Affairs Committee in the European Parliament that many countries deal with this kind of possibility through differential systems of voting, referenda and/or super- majorities as forms of checks and balances. We know that we do not do things quite like that here, but we have a provision in the Parliament Acts which excludes from their scope proposals to extend the life of Parliament. For the future, once this Bill will have become law, it seems sensible to me to envisage an amendment which would extend this rule to proposals to change the composition of the second Chamber and/or to abolish it. Under this approach, the House of Lords itself would become the check and balance of last resort.

I tried to table such an amendment, but it was ruled out of scope by the clerks, and this is the best I was allowed to table, the wording of which, on my own admission, is inadequate and is merely a peg upon which this wider important topic can be discussed. I hasten to add that I have done this for exactly the same reason that I insure my house against fire. It is not that I am expecting my house to burn down—on the contrary—but were it to do so, the consequences would be dire and very difficult to deal with without having taken out an insurance policy previously.

Finally, let us remember that the phrase “It just couldn’t happen here” is weasel words and is frequently the first step on the road to political disaster. I may well be accused of setting a hare running. I hope I have, and I hope it will run and run.

[The Earl of Devon (CB)]

My Lords, I shall speak to three amendments in this group. Amendments 91 and 94, in my name, seek to address gender equality in hereditary peerages once Clause 2 of this Bill ends for ever your Lordships’ ancient jurisdiction to determine peerage claims. Amendment 97 considers whether the name “the House of Lords”, with its inherently gendered, privileged and feudal connotations, remains appropriate once the gendered, privileged and feudal hereditary Lords have left. I am grateful to the noble Lord, Lord Hannan of Kingsclere, and the noble Baroness, Lady Smith of Llanfaes, who have added their names to Amendment 97.

Equality of succession to hereditary peerages is an issue I care about deeply. I had hoped we might change the law to remove this discriminatory patriarchal anomaly while I was here, but that now appears unlikely, given this Bill. The best we can do is require the Judicial Committee of the Privy Council, to which peerage claim jurisdiction now moves, to exercise its functions in a non-discriminatory manner and to consult on the challenges posed thereby.

Throughout the debate on the hereditary peerage, we have been assailed for our gender. Since the Countess of Mar departed, we have indeed all been male, and it is right that we should not reserve seats in Parliament for a predominately male cohort. However, the equitable solution is not to abolish us due to our gender but to change succession laws to alter our gender. It is discriminatory to critique us for a protected characteristic over which we have no control while refusing to allow us to change the law. These amendments are our last hope of dragging the hereditary peerage into modern times and establishing equality at the heart of British society. Once we leave your Lordships’ House, I think no one will care.

Here, I note my interest as the Earl of Devon. I am the 37th man to have held that title. There has been one woman, Countess Isabella, the last Queen of the Wight—an example of powerful feudal female leadership. The title was most recently restored in Tudor times, since when it passes exclusively to all heirs male. My grandfather, my father and I each grew up as the only brother among multiple sisters, poster boys for male primogeniture. The youngest of four, I was uncomfortable that my gender charted my life. That my mother “would have gone to any lengths” to have a son was a phrase that echoed somewhat awkwardly through my childhood, particularly given the prominence in our home of the portrait of the ninth Earl with his 13 sisters, painted in 1779. There are no male spares in the Courtenay family tree, which is so verdant with female branches. “Kind hearts and Coronets”, we are not.

It is not just the personal embarrassment of male preferment that motivates me but the earldom itself. It was granted to Baldwin in 1142 when he was the first Norman baron to raise his standard over Exeter Castle in support of the Empress Matilda’s claim to the Throne of England. She was usurped by her cousin Stephen on the death of her father, Henry I, because Stephen and others felt that Matilda, being female, could not rule. Baldwin disagreed. From inception, therefore, the earldom of Devon championed female leadership. Lost and recovered some five times during the Middle Ages, the earldom was most recently restored in 1553 by our second female sovereign, Queen Mary I, because once again the family championed her right as a woman to rule England upon the death of her father, Henry VIII. We had been beheaded for these radical views in 1538, but through Queen Mary’s good graces the family recovered and have since kept our heads sufficient for me to be here now to continue that fight—and perhaps risk a further beheading.

--- Later in debate ---

[The Attorney-General (Lord Hermer) (Lab)]

My Lords, I thank all noble Lords for their contributions to this debate. Amendments 55, 62 and 97, tabled by the noble Lords, Lord Inglewood and Lord Lucas, and the noble Earl, Lord Devon, all seek, in different ways, to place a duty on the Government to review and report on the impact of legislation after it receives Royal Assent.

As a matter of principle, and when they are applied in the right case for the right reasons, obligations to review and assess the impact of legislation can serve a very valuable public function. For example, the scope or size of the subject matter of a Bill might give rise not just to a range of predictable outcomes but to a material risk of adverse impacts in the real world that cannot be adequately assessed at the time of the Bill’s passage. Those impacts could be wide-ranging: for example, they could be financial or environmental or could entrench any manner of inequality. While Parliament can always review the impact of legislation at any time of its choosing without an explicit statutory authority, on occasion, as I have said, a mandatory obligation can serve a proper and indeed important function. However, the Government’s view is that there is no adequate rationale for a review and reporting requirement here.

This Bill is very simple. The primary purpose it seeks to achieve is singular: to remove the right of the remaining hereditary Peers to sit and vote in your Lordships’ House. We also know well what the impact will be: the loss of those Peers. I mean no disrespect to the great public service of those Peers to say that their loss will not give rise to unforeseen, significant adverse consequences that come anywhere close to the sort of justification we would want for the measures sought by these amendments.

We know from experience what the impact will be, because your Lordships’ House has already experienced a far more significant reduction of hereditary Peers following the 1999 Act—which, I note, itself had no post-legislative reporting requirements to scrutinise impact. There has been little suggestion that those reforms produced any profoundly detrimental impacts, let alone ones that would justify the steps proposed in these amendments. The House continued to function effectively then, and, as I say, while we truly value the work of hereditary Peers to date, the House will continue to function when this reform is completed. As the Leader of the House said at Second Reading, the Bill does not alter any core functions of your Lordships’ House.

I hope those points address the amendment tabled by the noble Lord, Lord Inglewood. I thank him for clarifying that his is a probing amendment, and for his thoughtful contribution and the important points he made about our constitutional framework. However, the noble Lord’s amendment is not confined simply to a review-and-report requirement: if agreed, it would continue in perpetuity to impact any subsequent legislation that alters the composition of your Lordships’ House. In other words, there would be a requirement to undertake reviews indefinitely after every general election until the end of time. With the greatest respect, I suggest that would be a disproportionate measure—but I hope the brevity of my response will not be mistaken for a lack of gratitude for his thoughtful contribution to the debate.

The noble Lord asked what insurance policy is in place. I hope that there are several, not least the Government making plain that this reform—completing the work, as we put it—is the beginning of steps for a further reform of your Lordships’ House, the next being close consultation across the House on the shape of further reform. I agree with very many of the sentiments expressed by the noble Baroness, Lady Finn. As we go forward, it is important to ensure that we capture and protect the important role of the second Chamber in revising and reviewing legislation, ensuring that it has a degree of independence from the other place. The reassurance I give is that it is our intention to consult widely and collegiately on the steps ahead.

I turn briefly to the contribution of the noble Lord, Lord Sandhurst, whom I have known for a long time prior to coming into this House. As he knows, I greatly respect him and our friendship, but I am afraid I consider his remarks, drawing a comparison between the Bill and the risks faced in the Weimar Republic, quite misplaced. All of us in this House are no doubt acutely aware that this is a delicate moment for liberal democracies and your Lordships’ House no doubt has an important role to play at this delicate and important time, but the power of our contribution will be diluted if we reach too quickly for overstatement or—the more so—inappropriate overstatement. This is a manifesto commitment that is limited in scope, and we serve ourselves well to remember that and not to rhetorically overreach.

I turn to Amendment 97, tabled by the noble Earl, Lord Devon. The House of Lords will continue to be called the House of Lords following the passage of the Bill. The removal of the right of hereditary Peers to sit and vote in this place does not change the fact that Members of this House, save for the Lords spiritual, will continue to consist of Peers of the realm. The answer to the eloquent speech of the noble Lord, Lord Hannan, as to why is simply a literal one. In answer to the point raised by the noble Earl, Lord Devon, about the dictionary definition of the “House of Lords”, I respectfully suggest that that version of the dictionary, like this House, requires some subtle updating.

Amendments 91 and 94 have joined this group to accommodate the noble Earl, who is, sadly, not available for the final day of Committee. I hope I accurately capture the amendments in saying that they address a narrow point about the power to refer disputes to the Judicial Committee of the Privy Council, but also a wider point that seeks to address gender inequality in the succession to peerages. I will first address the narrow point about referrals to the Judicial Committee, which I will come to again substantively when we discuss the amendments to Clause 2 tabled by the noble Lord, Lord Wolfson, next week.

As your Lordships know, this House currently has a role in handling complex and disputed peerage claims under Standing Order 77. The aim of Clause 2 is to remove that role. The intention is that that role will be fulfilled by the Judicial Committee of the Privy Council, whose jurisdiction to do so is already established by virtue of Section 4 of the Judicial Committee Act 1833. The effect of the noble Earl’s amendment would be to place the issues arising out of inheritance and title, irrespective of complexity, on the Judicial Committee. The Government, and indeed the Privy Council, would perceive this to be an unacceptable burden on an already exceptionally busy body. It would, in short, amount to an unnecessary and disproportionate use of its resources and expertise. For those reasons, and given the points raised by the noble Baroness, Lady Hayman, we cannot accept the amendments.

Finally, and most importantly—

[The Earl of Devon (CB)]

The Minister may have misunderstood the purport of my amendment, which is merely to ensure that when the Judicial Committee of the Privy Council exercises the functions that it will exercise following the passage of this Bill, it does so in a way that does not discriminate against claimants due to their gender. It is nothing more than that—I am not adding any work. I just wish that women could inherit hereditary titles.

[Lord Hermer (Lab)]

I am very grateful for that, and I shall turn to that point now, but the actual wording of the noble Earl’s amendment would have the effect that all disputes, not just complicated and contentious disputes, would be referred to the Judicial Committee, so there is a very practical objection to it.

I turn to the wider point, which I know is the one of most interest to the noble Earl. I shall deal with both amendments in turn, starting with Amendment 91. In the Government’s view, the amendment unacceptably seeks to force on the Judicial Committee how it should exercise its jurisdiction with regard to gender equality and to impose an obligation on it to report on how that obligation has been discharged. With the greatest of respect, that misunderstands the appropriate constitutional role of the Judicial Committee of the Privy Council, which is to apply the law. If the law distinguishes between the sexes, as the noble Earl is aware that it does currently in succession to hereditary titles, the Judicial Committee must apply it accordingly.

As I leave that aspect of Amendment 91 and turn to Amendment 94, I of course recognise the importance of the issue that the noble Earl seeks to raise through his good faith amendments. The Government very much share his unease at the inequality baked in to so many hereditary peerages. The fact that fewer than 90 hereditary peerages allow women to inherit titles is something that I know Members in both Houses and across this House are not comfortable with. The Government are committed to the principle of greater equality.

On careful reflection, not least through the engagement that the noble Earl has had with my noble friend the Leader of the House, we do not consider that the amendments have a place in this Bill. The law around succession is complex and the inequities are not confined to gender. The law around succession to hereditary titles also affects adopted children, those born to unmarried parents and children born via assisted conception, using donors. That is before we enter into the issue of whether any future reform should protect the expectation of living heirs or managed property rights. We consider that those are issues that should be considered, but they need to be carefully considered holistically and do not properly form part of this legislation, however aligned we are with the noble Earl on the rationale behind his amendments.

There is also an additional objection of a constitutional nature to Amendment 94, because it seeks to impose on the Judicial Committee of the Privy Council an obligation to consult. Such a requirement to consult on how the law should be applied in the area of peerage claims very significantly cuts across the judicial independence of the Judicial Committee. I appreciate, of course, that that is not the noble Earl’s intention, but I fear that his amendment would critically undermine the independence of the committee. Either the committee independently and impartially applies the law or it takes views on social policy. It cannot do both. However, as I have said, nothing in my response to the amendments from the noble Earl should be taken as a suggestion that he is not raising very important points—he is—but they are not part of the policy aims outlined in our manifesto commitments or in this Bill.

I turn briefly to the issue raised by the noble Baroness, Lady Deech. As the contrasting contribution from the noble Baroness, Lady Hayman, demonstrated, there is no consensus on this point, and it underlined— I say with the greatest respect—that this Bill is not the place to determine that question. For those reasons, I respectfully request that noble Lords do not press their amendments.