Succession to the Crown Bill

Lord Beith Excerpts

Monday 28th January 2013 Commons Chamber

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

May I ask the hon. Gentleman about what seems to be at least a technical defect in the new clause? If the sovereign decides not to declare to the Privy Council that he or she is a Catholic, the procedure for ensuring that there is a Protestant supreme governor of the Church of England is not activated or brought into force.

[Jacob Rees-Mogg]

That is a fantastically late 17th century point. The language of coronation oaths of the late 17th century shows that people are obsessed by Jesuit dissemblers and believe that a sovereign who wants to get around the oath will come to the throne—he could have his fingers crossed behind his back or, even worse, a dispensation from the Pope saying that he is allowed to say that he is a good, honest Protestant when he is not. A sovereign is not likely to behave in that type of Jesuitical dissembling way. Our sovereigns tend to be good, upright and honest sovereigns rather than sovereigns who deceive us as to their religion. That is likely to remain the case.

I have dealt with new clause 1, and should like briefly to deal with amendments 1 and 2, which I tabled. The amendments are in honour of Henry IV of Navarre—not our Henry IV but the French Henry IV. He is supposed to have said—historians argue over this, as they argue over anything—that Paris is worth a mass. On Second Reading, my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), and the hon. Members for Rhondda (Chris Bryant) and for Cardiff West (Kevin Brennan), among others, discussed when somebody was deemed to be in communion with Rome for the purposes of the Act of Settlement and whether somebody would be excluded if they said, on becoming sovereign, “No, I’m not a Catholic,” when they had been christened or taken first communion as a Catholic.

Amendment 1 would make it clear that such a person would not be excluded at that point. It is separate from new clause 1 and has a different effect, but the clarification depends on allowing marriage to a Catholic. That is to say, as I said last week, that the canon law of the Catholic Church requires a party to a mixed marriage to use his or her best efforts to bring up a child of that marriage in the Catholic religion. If a party to a mixed marriage with an heir to the throne followed his or her Catholic requirement, the child would be excluded under a straight reading of the Act of Settlement, which I do not think is the intention of the Bill.

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[Jacob Rees-Mogg]

That is perfectly possible, but at what point would we know that that was the case? It seems to me that it is very important that we know who our sovereign is. We do not want to go through the courts to try to establish whether the child was brought up as a Catholic and was therefore in communion with Rome and excluded under the provisions of the Act of Settlement.

My amendments do not seek to change the requirement for the sovereign to be in communion with the Church of England. They are separate from the new clause, but simply state that a child brought up as a Catholic would not be deemed

“for ever incapable of succeeding to the Crown”,

which is the language used in the Act of Settlement about Catholics succeeding to the Crown. The question of eligibility could be clarified at the point of succession.

[Sir Alan Beith]

Does not the hon. Gentleman’s amendment address a situation that has arisen in other Protestant monarchies of northern Europe in which someone who had been brought up a Catholic decided to convert to being a Protestant when joining the royal family? Does it not look as if the wording of the Act of Settlement makes a once-and-for-all decision as soon as any kind of commitment is registered and should we not be clear that someone is free to make a choice at a later stage in their life?

[Jacob Rees-Mogg]

I am in complete agreement with my right hon. Friend. The Act of Settlement deems somebody who has been a Catholic for a minute to be dead in terms of the succession, and it passes over them as if they were dead. Once we allow the marriage of a Catholic into the line of succession to the throne, that provision makes absolutely no sense. We could be arguing that at the point of a Catholic baptism, the child was a Catholic even though it had given no personal agreement to its religion and should be disbarred from the throne.

[Jacob Rees-Mogg]

The hon. Gentleman is right that a child who decided to be confirmed as a Catholic would be excluded, but it is perfectly possible, not least because our Churches are coming closer together, for somebody to be confirmed a Catholic at the age of 12 or 13 but to decide on finding at the age of 23 that the throne was about to be offered to him that he might prefer to be an Anglican. We need to be clear about when people are excluded, so that if an heir to the throne decided that the religious bar meant that becoming King of England was worth changing religion for, the result would be clear and decisive. We do not want the monarchy to pass from one generation to the next only for us to have to go to court to work out who our sovereign will be based on the wording of a 1701 Act of Parliament.

[Sir Alan Beith]

The hon. Gentleman posits a situation in which someone gives up his Catholic faith for the Crown, but he must surely be aware that in mixed marriages it is not at all uncommon for children to experience aspects of both denominations and, at some point in their life, to make a choice that might debar them from the throne.

[Jacob Rees-Mogg]

Once again, I am in entire agreement with my right hon. Friend. It is important that the decision is made at the point of succession so that that flexibility is allowed. In ordinary family life in some mixed marriages, couples go to an Anglican service one week and a Catholic service the next.

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[Sir Alan Beith]

I am surprised that the hon. Gentleman suggests that the Queen has no relationship with the Church of Scotland, when in fact she appoints the Lord High Commissioner to the General Assembly, and it is the Church that she has consistently and regularly attended in Scotland throughout her life.

[Mr Leigh]

If I made a bad or weak point, I willingly withdraw it and accept my right hon. Friend’s superior knowledge.

Amendment 1 makes an important point. It is almost as important as the one that my hon. Friend the Member for North East Somerset made. If the legislation stays as it is, we will return to the world of the Act of Settlement, in which people were incredibly suspicious of some kind of papist plot. If someone had been tarnished in any way at any time in their life with Catholicism, they were excluded from the throne. As it happens, my eldest son is 640th in line to the throne, because he is descended from the Electress Sophia through his mother. He is not excluded from the throne as he was baptised as Russian Orthodox, although he has been raised a Catholic. So in our family we have found a way around the bar, but if the Bill stays as it is, we will return to a ridiculous, bizarre and absurd situation in which someone must never, at any point in their life, have taken communion in a Catholic church. As my hon. Friend pointed out, there are many mixed marriages and we go to each other’s churches regularly. Even those who oppose new clause 1 must accept that the logical and right thing to do is for the person to be able to make an election at the time they become Head of State.

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[Paul Flynn]

I am delighted to support new clause 1 —it is a minute improvement to the Bill—and I hope that the hon. Gentleman will press it to a Division, so that we can support his cause and stand up for a minor improvement to end the grotesque religious intolerance in the Act of Settlement.

[Sir Alan Beith]

I wish to speak to amendments 1 and 2, which raise an important point.

It was a bit much for the hon. Member for Newport West (Paul Flynn) to lambast the Government for introducing a Bill that removes gender discrimination in the royal family—something that the last Labour Government said they wanted to do but never got around to completing—and deals with the Royal Marriages Act 1772 and the limitation on sovereigns being married to a Roman Catholic. Were the Bill to cover the much wider issues of disestablishment or of whether the sovereign should no longer hold the position they currently hold in the Church of England, it would be a different Bill and a much wider consultation would have taken place.

The intention of the Bill might be frustrated, however, if the hon. Member for North East Somerset (Jacob Rees-Mogg) is right, because the wording of the Act of Settlement about who is a Catholic is very detailed and picks up on almost any evidence of any connection with the Catholic Church at any time in the person’s life. As we discussed earlier, it is highly likely that the child of a mixed marriage will have experienced both denominations —and perhaps the Church of Scotland as well. Many parents offer their children the opportunity to see what different Churches have to offer.

[Bob Stewart]

As I understand it, Her Majesty the Queen has attended a Roman Catholic service at some stage in her life. Does that taint her under the old rules?

[Sir Alan Beith]

It depends whether one thinks that Her Majesty was reconciled to Rome by that action, which did not involve being in communion with the Church of Rome—something from which the Church of Rome would exclude Her Majesty in any event—so it is only on the first of those two possibilities that what my hon. Friend describes might be so regarded. I do not regard it as such, because “reconciled” in that legislation meant accepting the authority of the papacy over the Church in England. That was what the argument was really about. Members of all Churches are very much reconciled to each other these days, because they realise that they share a common faith that is more important than their points of difference.

[Mr Leigh]

To reply to my hon. Friend the Member for Beckenham (Bob Stewart) through my right hon. Friend, the Queen has attended vespers at Westminster cathedral, but in her entire reign she has been very careful never to attend a Catholic mass. Dare I say that I think that in this day and age that sort of care is not necessary?

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[Sir Alan Beith]

Perhaps we should not get into a discussion about precisely how the Queen has dealt with these matters. From my standpoint, I see her as someone who has used her position in the Church of England in a way that is generally beneficial to society, by setting out the importance of spiritual things and laying emphasis—as she did in her most recent Christmas broadcast—on some of the moral and ethical conclusions that one might draw from these things. That is something of a satisfaction to non-conformists, Roman Catholics and members of the Church of Scotland, with which she has a continuing relationship—it is her Church in Scotland. In all those respects she has been exemplary in the way she has used those positions.

However, I turn to amendments 1 and 2, because—

[Michael Ellis]

Will my right hon. Friend give way?

[Sir Alan Beith]

I want to get on to amendments 1 and 2, because I am anxious that we get this right and I am interested in what the Government have to say about them.

It seems to me that the wording in the Act of Settlement might well preclude someone who, let us say, as a teenager or young adult chooses to be in the Church of England rather than the Catholic Church, having had experience of both in their lives. They could be automatically excluded by those features of their early involvement with the Roman Catholic Church that fell within the extended definition in the Act of Settlement of what constitutes having been a Catholic. Unless we deal with that, our legislation will be defective and will fail to fulfil its intended purpose, because at some future date it might exclude someone from being the sovereign even though they were in communion with the Church of England and wanted to uphold the Protestant reformed religion, as the coronation oath requires.

[Mark Durkan (Foyle) (SDLP)]

I have attached my name to amendments 1 and 2, but not to new clause 1. That is not because I particularly disagree with the point that the hon. Member for North East Somerset (Jacob Rees-Mogg) is trying to make in new clause 1, but in many ways because I am sensitive about such issues, as someone who is not a British national, but a citizen of the Irish Republic—that is the passport I carry; therefore I see myself as a citizen of a nation that does indeed have an elected Head of State.

I come to this House not to disrespect any of the institutions that are cherished by other Members and that are part of the British constitutional settlement. Where I can, I will support moves to remove and relieve aspects of discrimination wherever we find them. I said last week that this Bill does two valuable things in that it removes a layer of gender discrimination in the succession to the Crown and it lifts one layer of religious discrimination —the bar on a Catholic marrying the heir to the throne. However, as we heard in last week’s debate, those proposals in themselves leave many questions. As we heard, for some of us, one question concerns the remaining areas of discrimination, whereby anybody who at any stage in their lives had either been a Catholic or been deemed to be a Catholic would be barred from being an heir to the throne. In effect, it is the McCarthyite question: “Are you now or have you ever been a Catholic?” For anybody who has ever been a Catholic in any shape or form, that is it—they are out; they count as dead for these purposes. Clearly that is wrong and anomalous. I do not believe that, in passing this Bill, the House should choose to say, “Well, we still want to keep that—it’s about right that we keep it.”

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[Miss Smith]

I deeply respect my right hon. Friend’s intervention and, indeed, his contributions to the debates on this topic. Many aspects of the law relevant to this area are not changed by the Bill, however, and I would like to answer my right hon. Friend’s intervention by saying that, to the extent that there are difficulties, they already exist. I stated clearly last week that key elements of the Act of Settlement and the Bill of Rights stay standing, and I reiterate that today. I do not see this Bill as creating further constitutional crises than could be wrought out of the existing law.

For the record, before moving on to my second argument about the two amendments, let me state again that the Government are absolutely committed to the Church of England as the established Church, with the sovereign as its Supreme Governor. We consider that the relationship between Church and state in England is an important part of the constitutional framework. It has evolved over centuries and the Government have no intention of legislating to disestablish the Church of England. It is important to state that. The Government’s view is that allowing a person of the Roman Catholic faith to accede to the throne would clearly be incompatible with the requirement for the sovereign to be in communion with the Church of England.

Let me move on to my second argument and address the substance of the two amendments. I suggest that, if they were made, they would add greater uncertainty to the line of succession. For example, let us consider someone who is brought up as the heir to the throne and is clearly in preparation for that vocation over their lifetime. In the Government’s view, it would make that person’s position, and the position of their immediate family, very difficult, if they could be superseded at any stage by someone who converted from Roman Catholicism to the Protestant faith. By extension, that could also raise the prospect of the reigning monarch being subsequently supplanted by someone who was theoretically higher in the line of succession on that latter person’s converting from Catholicism and joining in communion with the Church of England.

I see that as a major technical problem with the two amendments. I view it as adding uncertainty and I could envisage it leading, in the words of many who have contributed to the debate, to a “constitutional crisis” which I do not see the core Bill providing for.

[Sir Alan Beith]

I understand the Minister’s argument, but it does not address the fact that, throughout the discussion, it has been clear that we are talking about children who are going to be brought up in mixed marriages. It is likely that, in those circumstances, before the child is of the age to decide whether they want to succeed to the throne, they will have experienced both Churches and could make a perfectly free choice—unconnected with the throne—for one or the other. That choice would determine their eligibility long before they were 18 or 19.

Succession to the Crown Bill

Lord Beith Excerpts

Tuesday 22nd January 2013 Commons Chamber

[Miss Smith]

Clause 2 is extremely clear that the monarch may not be a Roman Catholic. I think that that is the simplest expression of the lawfulness entailed in the clause.

[Sir Alan Beith]

It will not be clear if confusion persists over the matter of Protestant or Church of England. For example, Prince Albert was a Lutheran when he married Queen Victoria; he was a Protestant, not a Catholic. The Hanoverians were Lutherans when they came to the throne. We have a Protestant succession but it also involves supreme governorship of the Church of England.

[Miss Smith]

Again, I am grateful for the chance to be extremely clear. There are no changes to the parts of the Act of Settlement that require the monarch to be a Protestant. I hope that that is sufficiently clear.

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[Ian Paisley]

The point that I had hoped to make without making you cross with me, Mr Bone, is that the Minister could take the issue away—or perhaps get something from the House of Lords—and then bring back an amended Bill to the House next week. There is clarity in my amendment—

“provided that person remains in communion with the Church of England in accordance with section 3 of the Act of Settlement”—

and if the Minister were prepared to accept that, the matter would be resolved. It would clear up a lot of the confusion that has been voiced today, and the Bill would then have intent, thrust and clarity.

[Sir Alan Beith]

I am glad to be under your chairmanship, Mr Bone, as we discuss the details of this provision. Clause 2 is an important clause, but it raises complications and difficulties, to which hon. Members of all parties have been right to draw attention in order to check whether we are getting this right and achieving the objective.

We are in a different world from that in which the legislation that the Bill will change was created. As hon. Members have said, that was a time when Catholicism represented an actual political threat to the United Kingdom, because of the behaviour of some Catholic powers in Europe. We are long past that era now—indeed, we are in an era in which Catholics and Protestants are aware that they have more things in common—some very important things in common—than they have matters of difference, and an era in which there are many mixed marriages between Catholics and Protestants. We should recognise that people find ways of accommodating and even sharing in the benefits of both approaches to the Christian faith.

A further fact that we cannot simply cast aside is that we have a long national tradition associated with a Protestant monarchy and an established Protestant Church in England—the Church of England—which has its own long and complex history, including its own Catholic elements. We have a long-established situation in Scotland, dating from the Union of the Crowns, whereby the monarch is expected to uphold the position of a national Presbyterian Church in Scotland and to conform to it and attend its services when in Scotland. Protestantism is also a resonant feature of life in Wales and Northern Ireland, as, indeed, is Catholicism in both places. All that is part of our history and we cannot throw it lightly aside.

[Mr MacNeil]

The right hon. Gentleman touches on the past. It strikes me that perhaps the great worry in the past was not theological as much as it was about the imperialist ambitions of neighbouring nations—France, probably, and Spain to an extent.

[Sir Alan Beith]

The hon. Gentleman is right to say that that is at the root of the bars and prohibitions that we are discussing now. There were of course strongly felt theological differences, and there was a time when to be a Member of this House, a person had to swear an oath against transubstantiation and the Pope’s ability to relieve them of any obligations resulting from falsely swearing such an oath. It was very stringent. Later, and rightly, it was changed.

The hon. Gentleman comes from an island with an extraordinary and honourable tradition of adherence to the Roman Catholic faith, without a break, since before the Reformation. It is an unusual part of the British Isles in that respect. Where he lives. there has always been diversity in these matters.

[Mr MacNeil]

The right hon. Gentleman mentions the geography and history of my constituency, and he is correct that the island that I happen to be from has that Catholic tradition associated with it. The recent census showed that the southern part of the Hebrides had the most Catholic areas in Scotland, but also that the most Protestant areas in Scotland were in my constituency, in Lewis, Harris and North Uist in the northern isles. It is interesting to note that there has never been any religious tension between the two at all.

[Sir Alan Beith]

The two versions of Christianity live side by side remarkably happily in the Western Isles.

The purpose of the Bill is not to change the Protestant succession, as the Minister has made clear. If it were, we would have to spend a lot longer on it considering many more detailed and complicated clauses, and there would be many more concerns to deal with. Nor will it disestablish the Church of England—it retains the monarch’s position as Supreme Governor of the Church of England—or change the situation in Scotland, where the monarch will continue to be expected to be a loyal supporter of the Church of Scotland and its work, as the Queen notably is, while having good relations with the other religious communities in Scotland.

The problem that arises is the one that I refer to as the early age problem. A decision to bring up a child of such a marriage as a Roman Catholic, whether taken entirely voluntarily or under the provisions of some Roman Catholic law, would result in that child being debarred from taking up the Crown unless they renounced the faith in which they had been brought up. That is perfectly possible, as was mentioned earlier, but it is quite a limitation to place upon a child.

[Jacob Rees-Mogg]

The Act of Settlement mentions

“all and every Person and Persons that then were or afterwards should be reconciled to or shall hold Communion with the See or Church of Rome”,

so if a child were baptised a Catholic, I do not think there would be any subsequent opportunity for them to abandon Catholicism. The decision would be that of their parents at the time of their birth.

[Sir Alan Beith]

That is an interesting argument but I am not persuaded by it in the first instance. It seems to me that it has always been possible for a person to renounce the religion in which they were brought up. It had not previously occurred to me that the way in which we currently define the position would invalidate such a renunciation as removing a barrier to taking up the Crown.

[Dan Rogerson]

My right hon. Friend has hit on the spirit in which the law would probably be interpreted now. At some point, long before the Acts to which Members have referred today were passed, no members of the Church of England would have been able to escape that position, as they would all originally have been baptised Roman Catholics.

[Sir Alan Beith]

That is a further interesting point. The problem is there and we should not ignore it, and I think any wise parents would have to consider it. My right hon. Friend the Deputy Prime Minister will have had to consider it when he married. I would expect a couple from the royal family to exercise a lot of care and wisdom in making such a decision. However, we have to recognise that we are placing a potentially serious limitation on the children of a marriage such as we are considering, and giving their parents quite a dilemma.

[Chris Bryant]

May I draw the right hon. Gentleman away from the point about baptism? There is no such thing as Roman Catholic baptism or Anglican baptism: there is Christian baptism. No Church has ever suggested that there should be a rebaptism when somebody changes their religious denomination. The right hon. Gentleman makes a fair point about the bringing up of children, but it does not apply to baptism.

[Sir Alan Beith]

Absolutely, and had I decided to spend more time dealing with the argument put by the hon. Member for North East Somerset (Jacob Rees-Mogg), I would have looked into other questions such the significance of first communion at the age of eight or nine, for example, and whether someone would subsequently be allowed to renounce it. Most parents would prefer that such a position was not reached, but I refer to it because it is a real problem. The hon. Member for Rhondda (Chris Bryant) raised another intriguing issue that could be the subject of an amendment to the Bill, although one that I think the Government might resist on the grounds that it would limit the powers of the sovereign in a family matter—it is a rather unique family situation. Most of us would like to have some influence over the choice of our children’s spouses, and some may feel that they have less influence than they would like, at least in the initial choice of boyfriend or girlfriend or whatever, but the royal family is in a special situation and I think it would be reasonable of the Government to resist fettering the sovereign’s ability to exercise the six-person limitation provided for in the Bill. I understand why they might want to do so.

[Paul Flynn]

In imposing this archaic rule and virtually choosing partners for people, which we would denounce in every other field, and in putting the emphasis on religion, when we know that half the population has no religion—

[The Temporary Chair (Mr Peter Bone)]

Order. I am sorry to interrupt the hon. Gentleman. I know that clauses 2 and 3 are closely linked, but we are shifting quickly into clause 3. The sooner we finish with the clause 2 stand part debate, the sooner we will get to clause 3.

[Sir Alan Beith]

I do not want to be drawn into clause 3. We are considering whether the effect of clause 2 might be undermined by clause 3, and that has much to do with clause 2, but I suspect—I do not intend to say this again when we debate clause 3, so I will say it now —that it is something we will have to live with in order to produce a sensible outcome. The Bill as it stands provides a reasonable outcome to the problems I have described, but there is no escaping the fact that some problems will remain.

[Mark Durkan]

I want to take up the Minister’s point that this clause removes a line of discrimination from law. That is clearly what it does—up to a point. It removes a blatant bit of sectarian discrimination that would prevent somebody from remaining in the line of succession if they married a Roman Catholic. However, as we have heard, it still requires us all to subscribe to the notion that the Crown must remain Protestant and that somebody can only be Head of State in the United Kingdom on the basis of one particular faith. That is a sectarian provision.

Succession to the Crown Bill

Lord Beith Excerpts

Tuesday 22nd January 2013 Commons Chamber

[The Deputy Prime Minister]

I want to make progress and quote a statement by the Church of England itself, in a briefing issued to MPs last week. It said:

“The present prohibition on anyone remaining in the line of succession or succeeding to the Crown as a result of marrying a Roman Catholic is not necessary to support the requirement that the Sovereign join in communion with the Church of England. Its proposed removal is a welcome symbolic and practical measure consistent with respect for the principle of religious liberty. It reflects the sea change in ecumenical relations over recent decades.”

I have, therefore, quoted statements from both the Catholic Church and the Church of England and I hope they will provide ample comfort to those who are concerned.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I support the position that my right hon. Friend is taking and I am worried by the argument of the hon. Member for North East Somerset (Jacob Rees-Mogg) that, somehow, the United Kingdom Government and the monarchy would have to ask the permission of the Papacy, which would, in itself, be a deprivation of religious freedom. These are difficult decisions, but what my right hon. Friend is doing is surely not putting us in that situation.

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[Chris Bryant]

No, no—I am not a Calvinist. I merely point out to my right hon. Friend that one of the provisions of the 1706 and 1707 Acts of Union is that the monarch, when accepting the Scottish throne, has to make a separate accession oath that guarantees the protection of the Church of Scotland. That is why I say that several provisions in law relate to the religion of the monarch. Section III of the Act of Settlement states that the monarch

“shall joyn in Communion with the Church of England”.

That is yet another provision.

[Sir Alan Beith]

Surely the position is that although the Church of Scotland is not and never has been established in the sense that the Church of England is, with a degree of parliamentary control, it is a national Church in Scotland and the Queen attends the Presbyterian Church in Scotland and takes communion within that Church. That is where her Scottish allegiance lies, rather than with the Scottish Episcopal Church.

[Chris Bryant]

Absolutely. I was not confusing the Church of Scotland with the Piscies, as it were—

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[Jacob Rees-Mogg]

The hon. Gentleman is making a similar point to mine, which is that there has been a failure to consider the detail of the Bill. Trying to add two further clauses to the major provision that everyone was interested in has created confusion.

[Sir Alan Beith]

Is it not unreasonable, however, to ask a Roman Catholic to become the Supreme Governor of the Church of England—the hon. Gentleman obviously recognises that, given his suggestion of a regency—or to conform to the Presbyterian Church when in Scotland?

[Jacob Rees-Mogg]

I agree with my right hon. Friend. It would be perfectly reasonable to leave the law of the land as it is, or to make provision for a regency, which would address the problem. Under the Regency Act 1937, the regent would be required to be a Protestant and would therefore be able to carry out the functions of Supreme Governor of the Church of England for a period when the Crown was being held by a Catholic.

Again, however, there are issues with the detail. I raised with the Minister the issue of Counsellors of State. Who is eligible to be a Counsellor of State is set out in the Regency Act 1937. It is usually the closest members of the sovereign’s family, including people who are not of the blood royal, so this includes the late Queen Elizabeth, the Queen mother and the Duke of Edinburgh: they both were or are eligible to be Counsellors of State. Once a Catholic is allowed to marry an heir to the throne, it is perfectly possible for the two Counsellors of State—they always act in pairs—to be Catholics. During a brief incapacity of the Crown or during the Crown’s absence abroad, appointments in the Church of England would have to be made by Roman Catholics, which is a felony under the Catholic Emancipation Act 1829. It seems to me that Her Majesty’s Government are simply not aware of the detail of our constitutional settlement, and have pushed this clause through without considering the detailed ramifications.

The bit of the Bill for which I have the most sympathy is the clause abolishing the Royal Marriages Act 1772. I intervened earlier to cite a quotation from it that makes it the most nonsensical Act on the statute book since the marriage of Princess Alexandra, as she then was, to the then Prince of Wales. Princess Alexandra and her descendants were exempt under the section I read out earlier to the effect that royal princesses who married foreigners and their heirs were exempted from the Act. The marriage of Princess Louisa, the daughter of George II, exempted her line, and through Princess Alexandra our current Queen and all the members of her family are exempted. This Act of Parliament has only affected people for whom it did not really matter who they married and it has not affected the people for whom it did matter who they married.

It seems slightly eccentric to update this Act in a more aggressive form than the one currently on the statute book. As my hon. Friend the Member for Tamworth (Christopher Pincher) said, the ability to get an exclusion from Parliament at the age of 25 has been removed, so more onerous legislation has resulted, taking people out of the line of succession rather than simply invalidating the marriage. Provisions have been put in place that are harsher than those of an Act that was completely ineffective against those with whom it was supposed to deal.

I am not going to vote against Second Reading. I am not going to try to cause a Division against the serried ranks of the establishment. Her Majesty’s loyal Opposition and Her Majesty’s Government line up their forces to push through a Bill of political correctness—not gone mad, but simply not thought through. I wish that when we considered, debated and changed our constitution, we did it with plenty of time, thoughtfulness and detail.

Pretty much every speech we have heard today has raised an issue that should have been thought about, but has been ignored. Why has it been rushed through? Because it is convenient. Once the two Front-Bench teams are in agreement, the days of the week could be renamed if they felt like doing it. There is nothing so silly as cannot be done by them jointly. That, I am afraid, is what we find with this Bill. Let us hope that when we come to Report—or more likely, perhaps, in the other place—the technicalities and the detail can be gone through, so that we do not find that the Duke of Lancaster ends up being one person and the sovereign another; so that we do not find that the Church of England is accidentally being run for a week by a couple of Papists who happen to be Counsellors of State; so that we do not find that an onerous charge is put on royal marriages so that the royals cannot marry when they want—or, indeed, so that the more junior members of the royal family cannot marry at all because if they are not subject to the Royal Marriages Act 1772, they are excluded from ordinary marriage legislation, so how are they going to get married? I really think that it is time to have a look at the detail.

Succession to the Crown Bill (Allocation of Time)

Lord Beith Excerpts

Tuesday 22nd January 2013 Commons Chamber

[Jacob Rees-Mogg]

I am extremely grateful to my hon. Friend because that is the crux of my view. Let us suppose that we were to make no change. We live with the great history of this nation day by day, and it is a history that I am proud of and love; when we change it, we have to think carefully about the words we use. We have to think about the great offence given to Her Majesty’s loyal Catholic subjects by going back to the language of the Act of Settlement with a minor amendment.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

If the House were to require more time, it would be to absorb the shock of the hon. Gentleman turning from so eloquent a proponent of things as they are to someone who wants to remove, at one stroke, the Act of Settlement, the Act of Union and the Glorious Revolution of 1688. What has turned him from a man of conservative instincts to a radical firebrand in such a short time?

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[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I want to speak against the amendment tabled by the hon. Member for North East Somerset (Jacob Rees-Mogg), although I have some reservations about the way the Government have sought, at least initially, to timetable the Bill.

I oppose the amendment, because it is designed to facilitate a great widening of the scope of the Bill beyond its intended purpose and into another area, beyond what was agreed by the Commonwealth Heads of Government. There may be some wider agreement on that, but it is a much bigger thing. It conjures up a nightmare vision: the hon. Member for North East Somerset, perhaps clad in a suit of armour, waving a sword that slices up all the constitutional documents to which he has previously referred with such reverence. That is why I have called him a radical firebrand all of a sudden. What is at stake is the Protestant succession, the position of the Church of England and the Church of Scotland, and the coronation oath to defend the Protestant reformed religion—all those things—and my right hon. Friend the Deputy Prime Minister would have been cautious about going into that territory.

There are issues that we need to discuss, and which can be discussed within this framework, about the consequences of particular provisions, particularly for the children of a mixed marriage such as one that is envisaged, if in effect their opportunity to succeed to the throne was decided for them at an early age. We shall come on to that. My concern was greatest when the Government seemed to want to do this in one day, without an interval between any of the Bill’s stages. I regarded that as unacceptable and would have voted against it if it had proceeded to a vote.

What happens when we deal with legislation is that things are discovered in Committee, and we have to do something different on Report. If we compress the time so much that we do not have an opportunity to do so, it is pretty serious. Even when that has been done in a genuine emergency with terrorism legislation, it has often led to bad consequences, and it is a bad way of legislating.

[Mr Andrew Turner (Isle of Wight) (Con)]

The right hon. Gentleman has just referred to the possibility of a royal son married to a woman of Roman Catholic faith. A child is born, and someone decides of which faith they shall be. Is it the woman, or the man, or even the child, after perhaps 18 years? Who would be the decider of the faith of that child?

[Sir Alan Beith]

There is no answer to that question. One answer that I can give the hon. Gentleman is that it has very serious consequences, one of which would be the inclusion or exclusion of that child from the right to succeed to the throne and that decision would be taken when it was at a very early age. I hope that there will be an opportunity to discuss that, if the Committee stage is managed such that we are able to discuss the relevant clause.

I was addressing the desirability of legislation having stages. There should be a gap between the stages, and we have now arrived at that slightly happier position because Report will not be for a few days. I am entirely supported in my argument by the Government’s own action in tabling an amendment to their own Bill. Having believed at an earlier stage that it could all be done in one day, they have proved that that is a bad idea. I hope they have learned a lesson from that.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 8th January 2013 Commons Chamber

[The Deputy Prime Minister]

I am proud that this coalition Government have come together to clear up the monumental mess left by the hon. Lady’s party. After all, it was her shadow Chancellor who went on the prawn cocktail charm offensive in the City of London to suck up to the banks, which created the problems in the first place. It was the Labour Government who presided over the shocking tax system in which a hedge fund manager paid less tax on their shares than their cleaner paid on their wages. It is this coalition Government who have ended that scandal.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

T6. I congratulate my right hon. Friend on bringing forward legislation on the succession to the Crown. However, does he think that it is necessary to push it through in one day as if it was emergency terrorism legislation, when Parliament has a job to do to ensure that it is correctly drafted and that any concerns or unforeseen difficulties are addressed properly?

[The Deputy Prime Minister]

Making a small, concise amendment to an Act that has been on the statute book since 1701 is hardly acting hastily.

Justice and Security Bill [Lords]

Lord Beith Excerpts

Tuesday 18th December 2012 Commons Chamber

[Mr Clarke]

It was he, as Home Secretary, who introduced them. They arose partly at the behest of human rights lobbyists who are now vehemently opposing the Bill. It was the intervention of human rights activists in the case of Chahal in the late 1990s that saw the system of closed hearings develop, but some of the same people are now arguing that closed material proceedings put the Government above the rule of law.

As I have already said and as the right hon. Gentleman has with authority confirmed, people have been successful in fighting the Government in these civil actions under the closed material proceedings, as the number of claims goes—

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

rose—

[Mr Edward Leigh (Gainsborough) (Con)]

rose—

[Mr Clarke]

Let me move on, because I am probably moving on to the point of concern—

[Sir Alan Beith]

On this point.

[Mr Clarke]

All right.

[Sir Alan Beith]

My right hon. and learned Friend referred to the ability of the special advocate to challenge the evidence. Lord Kerr, in the remarks quoted earlier, talked about gisting and whether it was possible for the special advocate to confirm or correct with the other party whether he was in a particular place at a particular time, because that had come up in the evidence. We need to consider a little more carefully that ability to check back with the person who would normally be instructing the advocate but cannot because he is a special advocate.

[Mr Clarke]

I shall turn to some of this detail, but gisting is allowed under the Bill. The judge will have all the powers he requires to recommend gisting once he has heard the secret evidence.

--- Later in debate ---

[Sir Alan Beith]

I point out to my right hon. and learned Friend that that situation means that refusal is possible and is too easy in circumstances where embarrassment is involved. I can think of at least one case in which I feel that that happened during my time on the Committee.

[Sir Malcolm Rifkind]

I agree with my right hon. Friend. There has to be an ultimate right for the Prime Minister to decline to allow the Committee to receive certain information. However, until now, the agencies have been able to exercise that power. To be fair to them, they have rarely, if ever, tried to do so.

On operations, the statutory basis is crucial. The Committee has accepted that our oversight of operations should be retrospective. We do not wish to interfere in ongoing operations. That would be unreasonable and would put an intolerable burden on the agencies. As long as the oversight is retrospective and there is a significant national interest—we will have debates over what that phrase means—I believe that there is a sound basis.

Thirdly, until now, the Intelligence and Security Committee has been able only to request information from the agencies, not require it. To be fair to the agencies, they have not, for all practical purposes, ever refused us information, but they have been in control of the information that has been provided. Real problems have emerged over the years. On some occasions, it has been found, subsequent to the publication of a report, that important documents had simply not been made available to the Committee. That may not have been done in bad faith, but the consequence was embarrassment for the agencies and for the system of independent oversight. That cannot be allowed to continue.

We have also found that when the agencies have responded to a requirement of the courts, the resources and the time that they have devoted to finding every relevant document have been slightly greater than for a Committee that can only request information and not require it. That is going to change. I pay tribute to the agencies for accepting the need to make this change. The Committee will now have the power to require information from the agencies, including information on operations, subject to one or two important safeguards.

I come now to the crucial difference. Until now, the problem has been that although the agencies hold vast amounts of information on any given subject, we do not expect them, when we request information, to fill several forklift trucks with information and dump it at our offices. That would be absurd, and we will not expect that when we require information in the future. However, until now, the agencies have done the editing themselves. Even if it is done entirely in good faith, that does not enable the Committee to be confident that it has seen all the information that it would wish to see before it brings forward its proposals.

We have proposed that we will appoint additional staff—assistants to the Committee, who will be our employees and be answerable to us—who will go to the agencies when we require information on a particular subject from them and discuss all the information, including the raw material, that they have in their files. I pay tribute again to the Government and the agencies for agreeing to that. I hope that there will be a process of agreement and discussion, but at the end of the day, it will be our staff who decide which parts of the available material the Committee is likely to want to see. We, Parliament and the public will therefore be able to have confidence that the decision will be taken by the Committee itself, not by the agencies, however much they would be trying to do their best in good faith.

That is an enormous culture change for MI6, MI5 and GCHQ to accept. For the first time in their history they will be not just providing information to people who are not employees of the agencies or part of the Government—we are not part of the Government, and in future we will be part of Parliament—but allowing them to come into their offices, see material and discuss what the ISC would like to evaluate. I pay tribute to the agencies for accepting that. Of course they have some reservations and concerns, and a memorandum of understanding is being discussed. It is referred to in the Bill and will be published in due course. It will explain in greater detail how the system will work on a day-to-day basis. We may have to review it in a year or two in the light of experience.

I pay tribute also to both Her Majesty’s Government and Her Majesty’s Opposition, because such a change is not just a potential rod for the back of the agencies but will occasionally create problems for the Government of the day. Both Front-Bench teams know that the Bill will mean that intelligence oversight will have the teeth that it has not had in the past, because it will be on a statutory basis and include the real powers that I have described. That is why I and the Committee feel confident in saying that we will have a tougher, more effective and more reliable system of oversight than we have ever had in our history or than can currently be found in almost any country in the western world or globally.

--- Later in debate ---

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Having served on the Intelligence and Security Committee for more than a decade after it was first established, I warmly welcome the action of Ministers in introducing these new provisions. I have some slight reservations about improvements that are needed, but the measure is a good indication of the importance that the Government attach to the effective oversight of intelligence.

Much of my time on the Committee was deeply rewarding, and gave me a great deal of respect for the people who work in our intelligence services or assist them. Sometimes, however, it was like drilling into hard rock, and the drill had not got through the rock by the time I left the Committee. There were still many areas where the Committee did not have the information that it ought to have had to make the right kinds of judgment.

The value of the Committee rests only partly on its reports, which it makes to the Prime Minister. In future, it will make reports to Parliament. There has been reference to an annual report: the Committee makes numerous reports on different matters, and occasionally it has to make a report exclusively to the Prime Minister because none of the content can be revealed, so provision is made for that. The Committee’s value also rests on the fact that it gives confidence to the House and to colleagues that there are people who have enough access to know whether there is likely to be incompetence, illegality or unacceptable behaviour going on. The Committee provides reassurance that if that were the case, it would challenge it. To do so, it needs depth of knowledge, which means being aware of what is going on operationally.

Some of the definitions in the Bill are capable of benign use, but could also be put to hostile use, and could be used to restrict information. I do not think that that is the intention, but they could be improved significantly. The right hon. Member for Salford and Eccles (Hazel Blears) made a point about ongoing operations, and I think that that is a limiting provision. When does an operation end? Many of our operations against terrorism are ongoing for as long as we think there is a threat, but we have to know what is happening. If we look back to the period leading up to the Finucane murder, for example, it would have been wrong, if the ISC had existed then, for it not to have had some understanding of the relationship between the Security Service and military units such as the force research unit and the basis on which information might be released by agencies and get into the hands of paramilitary organisations. The Committee needs that level of understanding to meet the test I described, so the wording needs to be adapted. It would be wrong, and a terrible mistake, if the Committee knew who was serving as agents and what handlers were finding in particular cases at particular times. That information should be kept as narrowly as possible, but allowing understanding of the operation, why it is being conducted and on what lines is significant.

[Sir Malcolm Rifkind]

My right hon. Friend may like to know that part of the intention of the reforms is to ensure that we receive regular—probably quarterly— reports on the spectrum of agency activity, including operations, subject to retrospection and significant national interest. That gives us a broader awareness of the totality of agencies’ activities than has been possible in the past.

[Sir Alan Beith]

That is very helpful. There is a success story here: the Committee is still building the relationships necessary to give the confidence I described earlier. I pay tribute to those who have been involved in this on the Committee side as well as on the Government side. There will be occasions, as there have been in the past, when the public fear that power within the intelligence sphere is being used inappropriately or, indeed, not effectively. A democratically elected body must therefore be able to provide reassurance that if something goes wrong it will know about it and try to do something about it.

The other part of the Bill deals with closed proceedings, which are also closely related to intelligence. I emphasise that we are discussing civil proceedings, not prosecutions. Closed material proceedings are unwelcome, but it is difficult to see an alternative. They are necessary to protect the operational effectiveness of intelligence services, including the secrecy of sources. The control principle of foreign intelligence is fundamental to intelligence operations: people do not give away their country’s intelligence unless they know it will not be misused.

That is not a one-way process—other nations sometimes forget the control principle. I recall a rendition case in which our US allies did not observe the principle. Indeed, the Committee reported on it because the intelligence was provided on the basis that action would not be taken, yet it was used to provide the basis for an action. That was an example of the control principle not being applied, but we must apply it; otherwise, we will not gather the intelligence we need to protect our citizens.

I pay tribute to the work of the Joint Committee on Human Rights, which the Justice Committee decided was doing the work and should be allowed to get on with it. Boundary lines between our two Committees are often drawn, but the Joint Committee’s excellent work contributed hugely to their lordships making the Bill more acceptable to those of us who come at it from a more liberal standpoint. Their lordships made it quite clear that although the Executive apply for closed material proceedings, the judge decides.

The original subsection (2) of clause 11, which would have allowed the extension of closed material proceedings into other areas, was removed by a welcome Government amendment. Their lordships passed an amendment on considering alternatives such as public interest immunity and a strict necessity test. The amendment appeared to be desirable, although my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) today indicated that it could lead to some cumbersome processes, so it will be appropriate for the Committee to look a little more closely at it.

A court will be required to balance national security with fairness, transparency and the need for open justice. The amendment that was unsuccessfully proposed to bring that process continuously into closed material proceedings was unrealistic—it is pretty difficult to satisfy foreign allies that we will apply the control principle if the question is being reopened in proceedings daily. The Government have indicated that they will accept the provision under which either side will be able to invoke closed material proceedings. I find it hard to envisage the circumstances in which a plaintiff would do so, but equality of arms requires that provision. I do not know why the Government resist the amendment proposing an annual report on the use of closed material proceedings—a fairly simple requirement—but perhaps such proceedings will not be so frequent and only a biennial report will be necessary.

As a result of proceedings in the other place we are now close to achieving a reasonably satisfactory balance in using difficult and unwelcome powers to ensure that information can be put before a court. None of us would want to have to use the process, but without it we will not be able to decide cases on the evidence available.

Another matter with which the Bill deals is the more general application of the Norwich Pharmacal principle to intelligence, on which the Government are right to act. I note the Intelligence and Security Committee’s suggestion, which the Justice Committee can look at, on how we limit its application so that we more specifically refer to foreign intelligence and the control principle or information that would impair the effectiveness of our security operations. The Government must act to defend our ability to acquire intelligence from elsewhere.

Further improvements might be possible to make it clear that a gisting process can work in cases where the special advocate realises that he cannot effectively challenge or assess evidence without more information that is in the possession of only the plaintiff. We must find some way of resolving that. We cannot allow the present position to continue, but we must get the Bill into the best state possible.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 16th October 2012 Commons Chamber

[The Deputy Prime Minister]

As I have explained, the legislation is on the statute book and that will not change. I have merely made clear during the last few weeks and months the position of Liberal Democrat Members when the matter comes to a vote.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

6. What terms of reference he has given to the commission of priorities for the economy of the north-east.

[The Deputy Prime Minister (Mr Nick Clegg)]

The terms of reference for a strategic, constructively critical review of the economy in the north-east have rightly been set by the north-east local enterprise partnership itself, not by Government. The partnership has commissioned a high-profile team of leaders from UK finance, industry, public and civil society to produce this review, and I believe it will be an excellent means of helping to drive growth in the north-east. I look forward, as I believe my right hon. Friend does too, to receiving the report early next year.

[Sir Alan Beith]

Is my right hon. Friend confident that this group, which has an important and valuable job to do, can take fully into account those things that matter to the economy of Northumberland, in particular the dualling of the A1 and the provision of broadband in rural areas?

[The Deputy Prime Minister]

Absolutely. I can assure my right hon. Friend on that because the group, as he knows, is independently constituted and can address itself to the concerns surrounding broadband infrastructure and road transport, which I know are deeply felt and on which he has long campaigned in the north-east.

House of Lords Reform Bill

Lord Beith Excerpts

Monday 3rd September 2012 Commons Chamber

[The Deputy Prime Minister]

I have made it very clear that all Liberal Democrats, whether Front Bench or Back Bench, will vote against the changes coming into effect before 2015. On the right hon. Gentleman’s first point, I wonder whether he could advise the House on what more the Government could have done to seek to understand what a cross-party approach would be. We convened cross-party discussions on seven occasions when the coalition Government were first formed. We published a White Paper and a draft Bill. We convened a Joint Committee, allowed it to continue its work for months and months, and adopted the vast majority of its recommendations. We chopped and changed our legislative text, taking on board suggestions from Opposition and Government Members. For the right hon. Gentleman to say that that was a capricious exercise unilaterally conducted by the Government ignores the painstaking work put in by the Minister with responsibility for political and constitutional reform, my hon. Friend the Member for Forest of Dean (Mr Harper), me and many others to try to generate proper cross-party support for this now long overdue measure.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Now that Labour’s refusal to co-operate on a timetable has ensured that we will see a steady increase in the number of unelected legislators, may I assure my right hon. Friend that he was very wise not to invite my hon. Friends and me to support a reduction in the number of elected legislators?

[The Deputy Prime Minister]

As my right hon. Friend suggests, of course there is an argument that says that if one reduces the size of one Chamber—the House of Commons—but does not make the other more legitimate, all one ends up doing is strengthening the hand of an already over-mighty Executive. That argument has some force, but I have never hidden the fact that the reason why I believe that the boundary changes should not—and, indeed, will not—go ahead in 2015 is that the overall package of constitutional and political reform measures would otherwise be unacceptably unbalanced within the coalition Government.

Prime Minister’s Adviser on Ministers’ Interests

Lord Beith Excerpts

Tuesday 17th July 2012 Commons Chamber

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

The Public Administration Committee has been consistent on this matter, and it has been right on this matter. It is not about the choosing of Ministers; it is not even about the dismissal of Ministers. It is about ensuring that, if there is the possibility of impropriety in ministerial conduct, that can be investigated. It is too much to expect the Prime Minister not to be influenced by other factors in deciding whether to refer such a matter. To lose one Minister is bad enough; to lose several is careless. The Prime Minister will always have an anxiety that an adverse report by the investigator could lead to his needing to dismiss a Minister. It is simply naive to suppose that no Prime Minister will be affected by such considerations. Therefore, the adviser should be free to initiate investigations. Indeed, they would often do so in circumstances where it is to the advantage of the Minister concerned that there be a straightforward, clear and swift way of vindicating him, if he is innocent.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 10th July 2012 Commons Chamber

[Mr Harper]

My understanding is that discussions are under way on that point, but that the parties in Northern Ireland have not been able to reach a consensus. My right hon. Friend the Secretary of State for Northern Ireland will continue to have discussions, but he wants to reach a consensus among the parties in Northern Ireland before making progress.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Is it not a fundamental right of the British people to elect those who make our laws? Is it not a reasonable expectation that Parliament, once it has agreed that principle, will not allow it to be prevented by delay?

[Mr Harper]

I very much agree with my right hon. Friend. Later today, I will have the opportunity to set out my views at greater length, which I hope the House will find interesting.

--- Later in debate ---

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

When fast-track courts were used following the riots, there was a feeling among magistrates that district judges had been used extensively and the lay magistracy had not been used as much as it could have been. Will that happen in Olympic cases, or is the Solicitor-General looking carefully at this?