Succession to the Crown Bill

Lord Berkeley Excerpts

Wednesday 13th March 2013 Lords Chamber

Moved by

[Lord Berkeley]

1A: After Clause 1, insert the following new Clause—
“Succession to the Duchy of Cornwall not to depend on gender
In determining the succession to the Duchy of Cornwall, the gender of a person born after 28 October 2011 does not give that person, or that person’s descendants, precedence over any other person (whenever born).”

[Lord Berkeley]

My Lords, this amendment was tabled in Committee. My purpose in tabling it again today is gently to take issue with the Minister on one aspect of his letter to noble Lords dated 7 March in connection with the title of the Duke of Cornwall. Before I do that, I draw your Lordships’ attention to this wonderful statement on page 2 of his letter, which says:

“The Crown is the source of all honour and dignity”.

That is absolutely wonderful. It reminds me of the inhabitants of the town of Titipu in “The Mikado”, who defer to the Lord High Executioner. I wish we could move on from some of the Crown’s “all honour and dignity” because part of the Crown is the Government, as we all know.

Turning to the issue I want to raise, page 1 of the Minister’s letter states:

“The title of the Duke of Cornwall can only pass to the eldest son and heir of the monarch”.

I have had some interesting advice from a public notary called John Kirkhope, who is a real expert on these issues. He challenges this statement. He says that the charter establishing the Duchy of Cornwall was dated 1337 and is in Latin. He has kindly given me a 14-page translation, which I will not read out, but if the Minister wants a copy I will be pleased to give him one. Basically, he says that there is precedent for other options besides what the Minister says in the letter. Mr Kirkhope says,

“if I am King and have two sons A and B, A would be Duke of Cornwall. If A dies before becoming King making B Heir Apparent, B would not be the Duke of Cornwall”.

However, he goes on:

“The eldest son of Henry VII, Arthur, died before becoming King leaving his younger brother Henry as Heir. Henry VII got Parliament to agree that his son Henry should become Duke of Cornwall. The eldest son of James I, Henry, died before becoming king leaving a younger brother Charles. In this case James I got the courts to agree that Charles should become Duke of Cornwall”.

It seems that in those days the eldest living son of the sovereign would become heir to the title of Duke of Cornwall, so the devolution of the title has already been varied from that envisaged in the founding charter. I cannot see why this variation should not be applied today. It is consistent with the devolution of the Duchy of Lancaster, the title of which is always with the sovereign, regardless of gender. I suggest that it would be perfectly reasonable for Parliament simply to change the rules to say that the heir to the Throne is the Duke of Cornwall. I beg to move.

[Lord Lexden]

My Lords, we are deeply indebted to the noble Lord, Lord Berkeley, for raising this important matter again. A valuable discussion took place in Committee, drawing attention to the fact that the Duchy and its properties tend to flourish most conspicuously when they have a Duke in charge of them. They have been particularly blessed and fortunate in this regard since the 1950s with the current Duke, the Prince of Wales, at the helm. Incidentally, this was also true under the previous Prince of Wales and Duke of Cornwall, who later and briefly became Edward VIII. The tenants of his Kennington estates were the envy of those who rented their homes from London County Council.

Our discussion in Committee also established that the experience gained by the heir to the Throne in administering the Duchy estates is invaluable in equipping him for his wider duties. So why not for “him” read “or her”? The noble Lord, Lord Berkeley, has consulted experts, as he told us, about the Duchy’s founding charter laid in Parliament in 1337. It is clear from what he has told us today that the charter has not remained inviolate over the centuries. Should Parliament not be invited to change the charter again, to incorporate the principle of gender equality, which is one of the founding principles of this Bill? The Bill itself may not be the vehicle for making the change. If not, will my noble and learned friend give a commitment that a measure to provide for it will be introduced? Its rapid progression through both Houses could hardly be in doubt, although I hesitate to use that dreaded term “fast-tracked”.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I immediately associate myself with those wishes of full recovery to Her Majesty. I also thank the noble Lord, Lord Berkeley, for raising the issue, which gave rise to a very good debate in Committee. I certainly valued the input from those who contributed, as I have today, on what is a very important issue with a great historic heritage. The noble Lord referred to the founding charter of 1337 and offered to pass me a copy. I was not sure whether he was going to pass me a copy in Latin or the translation. My higher in Latin from 40-odd years ago is probably so rusty that the translation would be better.

As I sought to explain in Committee, the Dukedom of Cornwall can pass only to the eldest son and heir of the monarch. I will come back to the points made about the exceptions to that. Therefore, when Her Majesty was Heir Presumptive as Princess Elizabeth, she did not hold the title of Duke of Cornwall, and we believe that the position would be the same now if there were a female heir, because of the terms of the charter. It is important to bear in mind that, because of limitation to the eldest son and heir of the monarch, the title cannot pass to a younger brother. The two exceptions raised by the noble Lord, Lord Berkeley—that of Henry VIII, Prince Henry when his brother, Prince Arthur, died and of Charles I, then Prince Charles, when his elder brother, Prince Henry, I think, died—were interesting. The noble Lord made it clear that exceptional steps were taken. That almost proves the point that it was not an automatic transfer of the dukedom. In the case of Charles I—Prince Charles, as he then was—King James asked the courts to make the alteration.

I also indicated that if the monarch has a son who is the heir apparent and that son dies before the monarch leaving a son of his own, the grandson of the monarch, the grandson will become heir apparent, but will not become Duke of Cornwall because he is not the son of the monarch.

It was recognised by those who contributed to the debate that this Bill is not the vehicle for making some pretty fundamental changes to a charter that has not changed, with two exceptions over the years involving parliamentary or court intervention on a one-off basis—if you can call Henry VIII a one-off. To make fundamental change is not the purpose of this Bill.

The noble and learned Lord, Lord Lloyd, asked whether I can give a guarantee that the Government will bring forward legislation. I am afraid I am not in a position to do that. A huge amount of consultation would be required before we were in a position to do that.

As the noble Baroness, Lady Hayter, said, the purpose of this Bill is important, but very limited. I do not believe that it would be appropriate to use this Bill as a vehicle to change the charter. I take the point made by my noble friend Lord Lexden on the valuable experience which the present Prince of Wales has undoubtedly had with regard to his involvement in the duchy. I shall reiterate something that I said in Committee: although the title cannot pass to a female heir, there is nothing to stop her being actively involved in the running of the duchy or, should the reigning monarch so wish, chairing the Prince’s Council. If that was what the monarch wished, that would be entirely possible and would give that valuable experience to which my noble friend Lord Lexden referred.

My noble friend Lord Trefgarne asked about the creation of the Princess of Wales. As he acknowledged, the title of Prince of Wales is not automatically conferred on the heir apparent on his mother or father becoming sovereign. In the case of the present Prince of Wales, it was bestowed upon him some six years after the accession of our present Queen. The noble Lord, Lord Berkeley, said—my noble friend disagreed with the disparaging way it was put—the Crown is the source of all honour and dignity, and I agree with him. It would be a matter for the sovereign, but if the Crown is the source of all honour and dignity and the sovereign chose to establish a Princess of Wales, it would be a matter for the sovereign. However, I do not think it is very helpful to speculate on what might happen at a future date.

For those reasons, I invite the noble Lord to withdraw his amendment.

[Lord Berkeley]

I am grateful to the Minister for his reply and to all noble Lords who have taken part in this short debate. It seems to me that there is a precedent for Parliament or the courts to change what is in the original charter. It is quite clear that the sovereign, Parliament or the Government—because the sovereign and the Government are both Crown, the same Crown, under certain circumstances—can make this change if they so wish, so the whole thing probably does not matter anyway. On that basis, I beg leave to withdraw the amendment.

Amendment 1A withdrawn.

Succession to the Crown Bill

Lord Berkeley Excerpts

Thursday 28th February 2013 Lords Chamber

[Lord Trefgarne]

My Lords, I do not intend to delay your Lordships on this matter. All I will say is that a number of years ago now I had to deal with His Royal Highness the Prince of Wales in his capacity as the Duke of Cornwall in connection with the use of Dartmoor as a military training area. He dealt with it with enormous skill and understanding and we were grateful to him for that. If this amendment seeks to preserve and encourage those arrangements, I am in favour of it.

[Lord Berkeley]

My Lords, I support this amendment, but for rather different reasons from those of some other noble Lords who have spoken. It is ironic to me that we are having a debate, quite rightly, about equality between men and women in inheriting titles. I understood from what the noble and learned Lord, Lord Wallace, said at Second Reading that if the next heir to the Throne is a lady, she could be called either the Prince of Wales or the Princess of Wales—heaven knows; I would have thought she would be a princess, but I am no expert. If she can be called the Princess of Wales, why can she not be called the Duchess of Cornwall, or the Duke of Cornwall, or whichever way we want to put it? It seems extraordinary, really.

At Second Reading, I spoke about a number of issues that I had with the current structure of the duchy: whether it is in the private or public sector; what it does with its revenue; and the ability of the Prince of Wales to approve legislation. Frankly, this is one of the few Bills that he and Her Majesty should have a view on because it affects them in their roles. However, there are an awful lot of other issues on which I have not put amendments down because I was advised that they were a bit outside the Long Title, so I shall be looking to prepare and propose a Private Member’s Bill on some of these issues in the next Session, I hope. When the noble and learned Lord, Lord Lloyd, said that he had been Attorney-General to the Duchy of Cornwall, I thought, “Fine, the Duchy is getting free legal advice from some of the best lawyers in the land”. However, it then goes to tribunals and says it is a private organisation. Well, no other private organisations get free legal advice from an attorney-general. There are many other issues to discuss on that, but I support the amendment as a logical extension to the Bill. I look forward to hearing the Government’s response.

[Lord Deben]

My Lords, we are dealing with anomalies here and seeking to remove them. One reason we are doing that is because it sends a very clear signal about the attitude of the state towards certain issues. That is why so many of us are such supporters of the removal of gender discrimination in this way.

I genuinely find it difficult to understand why, if we are going to do that, we have not thought through one or two other things that are also signals. The concept of the heir to the Throne having this remarkable opportunity, which history has given them, of running a significant estate and dealing with significant matters of business is something that has characterised the monarchy for a long time and has given the present heir a remarkable opportunity, which he has used to huge effect.

I do not think it right to put before the House a Bill that specifically denies a female heir that opportunity. I know what will happen. She will in effect be the Duchess of Cornwall. I have no doubt that she will be asked to take the chair. I have no doubt that all this will happen. But what I find so difficult—I rise on this point only because it is a continuing concern of mine—is that we do not understand that when you decide you are going to deal with an anomaly, you have to deal with it. You cannot say, “I am going to deal with this bit of it, but I have a particular concern that it would mean changing something that happened in 13-something”. What a good opportunity to remind people of the great length of our history and of the fact that at this moment something has changed and we want to put it right.

So far I have found the Government at their least compelling when they have found it impossible to recognise that these things hang together. I hope that the noble and learned Lord, Lord Wallace, can accept that this will not make any difference in the other countries of the Commonwealth. No one will say, “I am frightfully sorry, I cannot vote for this because I am not prepared to give the Duchy of Cornwall to a female”. Surely this is something we can sort out properly. If the argument is that this might affect the issue of primogeniture with regard to your Lordships’ House and those who were once in it, then the answer is simple: this whole Bill is about the monarchy. We are talking about the monarchy. We are not talking about anybody else. Nothing inevitably comes from this, except possibly a spirit of change. There is nothing that is a precedent.

On this occasion, could we please see that this is a sensible thing to do? Would it not be good to do a sensible thing because it is sensible, rather than to argue about it because there is another argument?

--- Later in debate ---

[Lord Lang of Monkton]

My Lords, I support the amendment of the noble Lord, Lord Northbrook. In particular I endorse everything said by my noble friends Lord Lexden and Lord Mancroft. One point to make by way of modest qualification is that I understand there are a number of other dukedoms and titles held by the Prince of Wales which might also need to be changed and modified to bring them into the needs of this Bill. As long as this does not delay action on the Duchy of Cornwall, I hope that the Duchy of Lancaster and any other such duchies should be looked at quickly as well. It would be better to have one composite solution to the problem rather than a piecemeal one.

[Lord Berkeley]

My Lords, I have a question for the noble Lord, Lord James. As far as I recall, he spoke at Second Reading about the House committing collective treason. Why has he not put down some amendments in Committee to take these arguments forward, so we do not all commit treason?

[Lord James of Blackheath]

My Lords, I sought guidance on this. I did not get adequate guidance to enable me to formulate a wording which I could see was appropriate. I wholly agree that it is required. Given time it can be done, but we do not have time.

Succession to the Crown Bill

Lord Berkeley Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Berkeley]

My Lords, I am pleased to be able to participate in this Second Reading debate because it is an important Bill. I support all its clauses, which I shall consider, but I am afraid, as many other noble Lords have said, the Bill needs to go a bit further. I am pleased that the Government have allowed us proper scrutiny, with Report and Third Reading in addition to Committee, if we need it.

I should first say that whatever we discuss in the longer term, as my noble friend Lady Hayter said, the Queen has a fine record in what she has done and does, but that should not prevent us from having a full discussion about the role of the monarch and the established church. In addition to the contents of the three main clauses, I have concerns about the requirement to seek approval of certain legislation from the Queen or the Prince of Wales if it affects their private interests. I have a problem with why they should get that consideration but other people with private interests do not. It is reported—because one never officially hears about these things—that the Queen actually blocked a Bill some years ago that would have required Parliament to vote before the Government declared war. That is a serious issue; the Bill is one of the few that clearly needs the Queen’s approval, and that is appropriate.

However, as regards the role of the monarch and a constitutional monarchy, I have always had worries about why so many members of the Royal Family, 12 of them, get free travel around the country—usually in a helicopter because we are told that it is needed for security and they have to get to the next fete opening more quickly. From what I remember from when I was a kid, the King, the Queen Mother and their two daughters when they grew up were the only ones who performed any serious royal duties. I am sure that they had their travel paid for, but is it right that the taxpayer should fund all this? I make the comparison with dear Queen Beatrix of the Netherlands, who announced her retirement and abdication last week and is regularly seen going around Amsterdam on a bicycle, whereas our lot, depending on their status, have either five or three motorcycle escorts. I can understand why the security people recommend that because it means more jobs for them, but is it all necessary, or is it hyped up a bit?

I turn to the succession issue in Clause 1. This is clearly a good thing. I am not going to get involved in the debate about the succession to peerages, although some of my cousins were splashed across the Sunday Times last weekend—that is fine. I do not know whether the succession of a peerage goes along with succession of property; I am no expert. However, the noble Lord, Lord Lexden, mentioned the question about the Duchy of Cornwall and whether a female heir would become the Duchess of Cornwall and the Princess of Wales. The Duchy of Cornwall is a bit of a money-spinner because its annual accounts for 2011-12 show a total income of £26.5 million, of which £18.3 million is surplus, distributable to His Royal Highness. That 70% profit in any other business would normally attract a very large amount of tax, unless one was on a tax fiddle—which I am sure does not apply in this case. However, it is questionable why anyone in the Royal Family should have this benefit when other landowners do not. There is a strong argument for merging the duchy with the Crown Estates and ensuring that the money allocated to the monarch for public duties also covers the eldest child. The only other organisation that I can think of that makes such hefty profits is the Macquarie Bank, which we mentioned in a debate in your Lordships’ House last week. There is time to look at issues such as that and perhaps make proposals in the long term.

In terms of the succession, I hope that gender does not matter, but there has been the resignation of the Pope this week. It made me think of the story of the female Pope, if it is true, back in 800 AD. She was found out only when she had a baby that fell from underneath her surplice or cassock, or whatever it is called. Ever since then, there has apparently been a medical method of checking whether the Pope is a man or woman. I do not think that they have found any women since then. I do not even know if the story is true, but in Tudor times it was normal to have a Minister present when the Queen had a baby, just to check that it was in the proper line of succession. It may well be, if we are that keen to make sure that one inherits after the other in the proper succession, that the modern equivalent would be a DNA test on the heir to the throne before they succeed. As a noble Lord said earlier, we need certainty, and that would certainly confirm the lineage of the prospective heir to the Throne.

As to whether the monarch can marry a Roman Catholic, I have listened carefully to the debate and I really cannot see what difference the religion of the head of state makes. We can consider the latest surveys of the proportion of people who go to which church and so on, but, as the noble Lord, Lord Maclennan, reminded us, there are two established churches in this country—the Welsh have been sensible and do not have one, as far as I know. It is quite possible to separate the head of the Church of England from the monarch. An election could be interesting if the church decided to do that, and I suppose that the alternative is the Catholic way of going into a huddle and then producing a smoke signal when you have chosen someone. However, it does not make any difference to the monarch or the churches whether they are separate.

Then there is the question of whether the monarch can divorce. What would happen? Would they have to give themselves permission to divorce and remarry? It is an interesting question and I am sure that the Minister will be able to give me an answer. It is pretty odd that the whole edifice of the monarch and the constitution relies on who they are permitted to marry. What happens if the heir becomes King or Queen and then decides to get married? I suppose that he or she would have to take the advice of the Prime Minister of the day in considering whether the future bride or bridegroom was suitable and, presumably, came from the right background and religion, and was not someone who was not approved of. We are getting into difficult territory here. I would not dream of moving an amendment and dividing the House on such a matter at this stage, but I hope that we can debate this issue a bit longer and harder.

What are the roles and responsibilities of the monarch? What is their ability to interfere informally or formally with government? We are well aware of the infamous spidery handwriting of the letters that Prince Charles is alleged to have written. That is not the right way for the Prince of Wales to learn how to be a monarch who does not interfere in the day-to-day decisions of the Government. We must sort out the difference between private and public responsibilities. Who owns what? Who owns all those palaces and pictures? Is it the monarch as a private individual, or is it the state, with the monarch there for the duration of his or her reign?

In conclusion, the changes I have talked about are necessary to bring the monarchy and the constitution into the 21st century. They could all happen and it would not be the end of the world or of this country. I look forward to further debates on the issue.

--- Later in debate ---

[Lord Berkeley]

Very briefly, I understand what the Minister is saying about the Duchy of Cornwall but if there was a female heir to the Throne and she was therefore not the Duchess of Cornwall, who would go round and play landlord in Cornwall in their absence? Would it be nobody, so to speak?

[Lord Wallace of Tankerness]

I think I am right in saying that there is a council of the Duchy. Indeed, that position arose when the present Queen was heir presumptive but was not the Duchess of Cornwall. There is therefore ample precedent for the way in which the affairs of the Duchy can be arranged or dealt with in these circumstances.