Succession to the Crown Bill

Debate between Lord Deben and Lord Wallace of Tankerness

Thursday 14th February 2013 Lords Chamber

[Lord Wallace of Tankerness]

That would be a matter for the sovereign, just as the present Prince of Wales did not automatically become so on the accession of the Queen. I think he was created Prince of Wales in 1958 and that his investiture was some 11 years later. It would be a matter for Her Majesty and I do not think we should be presuming or prejudging this—and in future it would not necessarily be Her Majesty. This is obviously not going to happen at the moment, so it would be a matter not for our present Queen but for our future sovereign to determine.

With regard to the royal titles in Scotland, a number of contributors, not least my noble friend Lord Trefgarne, pointed out that the peerage rules in Scotland are somewhat more generous to women, in some cases anyway. It is certainly our view that in the event of an elder sister becoming heir apparent, the Scottish titles currently held by the Prince of Wales—namely, the Prince and Great Steward of Scotland, the Duke of Rothesay, the Earl of Carrick, Lord of the Isles and Baron of Renfrew—can pass automatically to a female heir apparent. These titles have always hung together and the removal of male bias in the line of succession could therefore not result in the detachment of these titles from the Crown. We have consulted the Court of the Lord Lyon, who is the official heraldry officer for Scotland, on this matter.

My noble friend also asked about the Duke of Edinburgh. The Duke of Edinburgh has a normal remainder to the heirs male of his body, but at the time of the marriage of the Earl of Wessex, it was announced that the Earl would eventually receive the title of Duke of Edinburgh. It is my understanding that there would probably have to be a creation of that; it would not automatically be inherited from his father. I say to my noble friend Lord Carlile that I will investigate further and write to him on the earldom of Merioneth.

This issue also gives rise to the question of hereditary peerages and a number of noble Lords contributed on this, some expressing concern and some hoping that this might indeed open the door to a change in the law. That just underlines the fact that it is not appropriate for this Bill. It goes much beyond the scope of it, although I do not for a moment minimise the importance of the issue. It would certainly not just be the Constitution Committee criticising us if we were suddenly to introduce in this Bill measures that were going to change the order of succession to peerages. My noble friend Lord Lucas reminded us, interestingly, that he inherited from his grandmother and mother but, as he pointed out, hereditary titles can very often go with financial interests and estates. These would not be issues to enter into lightly. As I indicated, they go beyond the scope of this Bill. I also remind your Lordships that even without this Bill, the rules of succession to the Crown already differ in most cases from the rules of succession to the peerage.

Clause 2 possibly generated the most concern and interest, not least because of what the implications would be if there is a marriage between an Anglican and a Roman Catholic. At the outset, let me say that it is important that we remove this element of discrimination, as a number of noble Lords who contributed to the debate made clear. This has been welcomed by both the Church of England and the Roman Catholic Church. I was particularly struck by the contribution of the noble Lord, Lord Janvrin, on the importance of the heir to the Throne being able to have a wider choice as to who may be their spouse. There was a sense of that around your Lordships’ House when he mentioned it. Given the particular challenges that go with the monarchy, I think that the noble Lord referred to the importance of lifetime love and support. That was a very poignant but relevant contribution to our debate.

As I indicated in my opening remarks, it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith. Catholic teaching is clear and perhaps more practical than has sometimes been suggested. The guidance is set out in Matrimonia Mixta, an apostolic letter from Pope Paul VI in 1970, and Pontificium Consilium ad Christianorum Unitatem Fovendam: Directory for the Application of Principles and Norms on Ecumenism, published in 1993. The guidance requires the Catholic partner in a mixed marriage to do their best to have the children raised as Catholics but if, as I indicated earlier, there is a just and reasonable cause which would qualify, such as the protection of the place of the Established Church, under those circumstances the local bishop can grant permission for the marriage. That moves us onto another issue, which I will come on to.

I also indicated that the Archbishop of Westminster has welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic. Indeed, in doing so, he recognised the importance of the position of the Established Church in protecting and fostering the role of faith in our society today. The noble Lords, Lord Luce and Lord Janvrin, echoed by the noble Lord, Lord Thomas of Swynnerton, asked whether it would be appropriate to have further discussions with the Roman Catholic Church. It is clear that there have already been discussions prior to this Bill but I will certainly try to ensure that officials meet representatives of the Catholic Church—indeed, I would be willing to meet them myself. I could not honestly predict the outcome but that suggestion seemed to command some support around the House. I would be willing to see whether that might produce anything that we could report back to the House at a future stage of our proceedings.

My noble friend Lord Lang of Monkton referred to my right honourable friend the Deputy Prime Minister regarding taking the matter to the Vatican. At Second Reading in the House of Commons, my right honourable friend said:

“I want to be clear that there is absolutely no prospect of our entering into discussions with the Vatican in order to bring this Bill into effect”.—[Official Report, Commons, 22/1/13; col. 215.]

The establishment of the Church of England has been a recurring matter that was raised in our debate. My noble friend Lord Maclennan and the noble Lord, Lord Dubs, said that it was an appropriate occasion to give that issue an airing. My noble friend Lord Deben indicated, with considerable passion, how he thinks that trying to address one anomaly while leaving another open is not acceptable. My noble friend Lord Astor raised this issue. I will come back to the Church of Scotland in a moment but my noble friend Lord Trefgarne got it right.

I got the impression that my noble friend Lord Lang was concerned that some of the provisions here might lead to disestablishment, whereas other contributors to the debate—indeed, the noble Lord, Lord Stevenson, did so from the Front Bench—were saying that perhaps this should be an incentive to get on and have that debate. Again, this issue goes beyond the Bill. We believe that nothing in the Bill detracts in any way from the sovereign swearing an oath to maintain the Protestant religion. The proposed changes are limited to removing a discriminatory bar on marrying a Roman Catholic. That would not allow a Roman Catholic to accede to the Throne but I suspect that, as the noble Lord, Lord Stevenson, indicated, this debate is not going to go away. However, I do not believe that this Bill is the appropriate place to deal with it.

The issue is that the Act of Settlement and the Accession Declaration Act, which was quoted by my noble friend Lord James, both make clear that the sovereign must be a Protestant, which of course George I was. The position in the Church of Scotland is that it is not an established church as such; the Queen is not the supreme governor of the Church of Scotland. The relationship between church and state is symbolised by the presence of the monarch or her Lord High Commissioner in attendance at the general assembly; indeed, my noble friend Lord Maclennan’s father was Lord High Commissioner, as several Members of your Lordships’ House have been. Although they are invited to address the assembly, they cannot intervene in its business.

As indicated, the oath of accession includes a promise to maintain and preserve the Protestant religion and Presbyterian Government, but the Kirk has not been established by the state—I declare an interest as an elder of the Church of Scotland—and neither the Scottish Parliament nor the Westminster Parliament is involved in Kirk appointments. To that extent, it does not operate as a state church in the way that the Church of England does. I think that it was the noble Lord, Lord Stevenson, who pointed out that in matters of doctrine, government, discipline and worship, the Church of Scotland is free from state interference, operating under a constitution largely contained in articles declaratory that were recognised by Parliament in 1921. So there is quite a significant difference there, but I suspect that this is an issue to which we will return.

[Lord Deben]

Before my noble and learned friend sits down, is there not a terribly simple way out? That is, to say that there is no bar to any Catholic becoming King or Queen but, in the event of a new sovereign being unable to be in communion with the Church of England, a Regent would be appointed as supreme governor of the Church of England. That would help us should there be some other religion to which a sovereign might wish to belong. It would also get out of the way of this being a stitch-up between churches instead of being a proper decision by the individual concerned.

[Lord Wallace of Tankerness]

My Lords, my noble friend makes an important contribution to that debate. I hope that he will recognise that it would not be appropriate to open up that whole issue, not least given the conflicting views that we have heard in the course of your Lordships’ deliberations today, for the purposes of this piece of legislation. However, I have no doubt that, as the noble Lord, Lord Stevenson, indicated—indeed, the noble Lord, Lord Dubs, had a Private Member’s Bill on this subject at one point—this issue is not dealt with, nor do the Government believe that it should be. We believe in the maintenance of the established Church of England. It is an issue, though, and when that debate takes place my noble friend’s contribution will be an important one for people to consider.

Scotland Bill

Debate between Lord Deben and Lord Wallace of Tankerness

Wednesday 21st March 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part in this very useful and informative debate. There are clearly issues that go to the core of the referendum issue and what shape a Section 30 order might take. Before I address those points, it might be helpful if I pick up some of the more specific points that were raised, not least in the amendments spoken to by my noble friend Lord Caithness.

In many respects, his amendments proceed on the proposition that in the event of Scotland voting for independence there should be a subsequent referendum of the whole United Kingdom to ratify it. I certainly take the view, which was expressed by the noble Lords, Lord Browne and Lord Reid, that, to use the words of Sir Malcolm Rifkind—if it was he who coined them—“If you want to leave the club, the other members shouldn’t really stop you”. Therefore, it is not a tenable position to suggest that if Scotland were to vote for independence, there should be a subsequent vote in the United Kingdom as a whole. In that sense, the subsequent vote of the people of Orkney and Shetland and the position of Rockall would not arise.

That said, my noble friend has raised an important issue. He gave us the history of Orkney and Shetland’s association as part of Scotland and, subsequently, the United Kingdom, having previously belonged to the Danish kingdom. The Government fully acknowledge the distinct community view of the people in the northern isles. This has been an important feature of previous debates on the Scottish constitutional position. The famous Grimond amendment on the position of the isles was taken through by my predecessor as MP for Orkney and Shetland, Jo Grimond. It led indirectly to the establishment of the Montgomery committee by the late George Younger when he was Secretary of State to look at the position of the islands’ communities. In the debates on the 1997 referendum, distinct issues were raised on the position of Orkney and Shetland. When the Scottish Parliament was established, I was able to ensure through its Standing Orders that a policy memorandum should address the implications of policy for Scotland’s island communities. I also recall that, in the 1987 general election, the Scottish National Party stood down in favour of a candidate from the Orkney and Shetland Movement, who stood on a platform of self-determination.

Since this issue clearly attracts attention, consideration and debate in the islands, we take as our starting point that we very much hope and believe that Scotland would not vote for independence and, therefore, that the position would not arise. For those eligible to vote in Scottish Parliament elections in Orkney and Scotland, our preference would be that that should be the franchise for the referendum. They will have the opportunity to express their views in the same way as those eligible to vote elsewhere in Scotland. As such, we do not see the need at present to treat residents of any particular part of Scotland differently from those elsewhere in the country when it comes to the consequences of the referendum result.

I can assure my noble friend and the Committee that I always listen carefully to the views of the people of Orkney and Shetland. I am in regular dialogue with those who represent them in both this Parliament and the Scottish Parliament. If they choose to make a case for formal constitutional recognition of their social, cultural and economic distinctiveness, I will certainly listen with care and respect. The coalition Government have a very soft spot for and pay great attention to the people of the northern isles.

Rockall is administered by the Western Isles Council under the jurisdiction of Scots law. The amendment, which seeks to change the original Island of Rockall Act 1972, could sow confusion. We do not believe that any of the issues raised by the various approaches to the United Nations about the continental shelf in any way change the United Kingdom’s ownership of Rockall. However, we would possibly be in an anomalous position if there was independence and the amendment went through, since the Act would assert that Rockall was no longer part of Scotland but it would be administered by a Scottish local authority. I am sure that is not what my noble friend intended but he has raised an important issue. The United Kingdom Government are clear that Scotland is stronger in the United Kingdom and that the United Kingdom is stronger with Scotland in it. Although there is no one on Rockall to vote, we are sure that it, too, will remain part of the United Kingdom.

I say to my noble friend Lord Mar and Kellie that Jersey, Guernsey and the Isle of Man have a completely different constitutional history and relationship from that of Orkney and Shetland and, indeed, Scotland. The noble Lord, Lord Reid, pointed out that Jersey, Guernsey and the Isle of Man have never sent Members of Parliament to Westminster. Therefore, their constitutional position is somewhat different.

I have listened carefully to the points made in the wider and more general debate. I certainly found it valuable to hear the different views expressed, although there was considerable consensus among them. As I have set out, the Government believe that it is right that there should be a single-question referendum to address Scotland’s place in the United Kingdom. We have set this out in our consultation paper and have sought views on it. The responses that we have received roundly support this position. Over the coming days and weeks, we will continue to assess in full the detailed arguments made in response to that consultation.

The amendment of my noble friend Lord Forsyth seeks to provide a referendum on independence, to be run by Westminster. It was supported by my noble friends Lord Lang and Lord Caithness. I made it clear that we would not look to use the Bill to deal with a referendum. As we made clear on page 19 of our consultation document, the future of devolution and independence are two entirely separate constitutional issues. The Bill is concerned with the former—the future of devolution—not the latter. It would not be in anyone’s interests to confuse the two issues. Amending the Bill to deal with independence would risk that confusion.

As I have indicated, and as has been widely recognised, our clear preference is that a Section 30 order, agreed between Governments and approved by both Parliaments, should be used to give the Scottish Parliament competence to hold a referendum on independence. As I stated in my opening speech, that position is supported not simply by the volume of responses to our consultation but by a number of experts and key commentators, several of whom have already made their comments public. Professor Adam Tomkins of the University of Glasgow said:

“The section 30 solution is both the neatest and the most compelling solution available, not least because it offers to the Scottish Parliament the fullest possible say in the process”.

The Law Society of Scotland has said:

“The Society is of the view that the making of such an Order should remove doubt as to the question of legislative competence and for that reason it may be desirable that an Order be made”.

The response of CBI Scotland also makes that point. The Scottish Government themselves have accepted that a Section 30 order is the best way to remove what they acknowledge are doubts about the competence of the Scottish Parliament to legislate for a referendum on independence. With that weight of academic and legal support, support that goes much wider than that and the support expressed in your Lordships’ House, we are confident that we will reach an agreement with the Scottish Government on a Section 30 order.

I shall pick up some of the points that were made in dealing with this issue. The noble Lord, Lord Neill of Bladen, asked how we would determine a referendum on federalism across the United Kingdom if different parts produced different outcomes. The noble Lord, Lord Reid, answered that point very effectively. The debate demonstrates why we need a clear referendum on a single question about independence. There should be one question in a legal, fair and decisive referendum to settle this matter before we turn to consideration of any further changes to devolution across the United Kingdom.

My noble friend Lord Maclennan raised the question of the referendum, the importance of the question that is asked and the use of the Electoral Commission. As set out in this Government’s consultation paper, our view is that any referendum held in the United Kingdom would be subject to normal rules on referendums as set out in the Political Parties, Elections and Referendums Act 2000. The commission would have responsibility for overseeing the conduct and regulation of the referendum independently of the Government. Since the Electoral Commission was created, it has overseen three referendums, which have followed the framework of the 2000 Act, and no minimum turnout or threshold has been raised. My noble friend referred to the question to be asked and the noble Lord, Lord Foulkes, suggested that it might be loaded. On the wording of the question, again it is our view that any question for a referendum on independence should be subject to the same rigour and the same rules as a question in any other referendum. It is the Government’s view that the Electoral Commission should fulfil the same role in reviewing the question as set out in Section 104 of the Political Parties, Elections and Referendums Act.

My noble friend Lord Maclennan also asked—I think that the noble Lord, Lord Browne, reiterated this but we are all interested in this—how this Parliament can continue to play a role in ensuring the content of any Section 30 order before it is formally put, and in ensuring that any question is fair, legal and decisive. We have made clear our view that a Section 30 order agreed between Governments and Parliaments is the best way to deliver a fair, legal and decisive referendum. Today’s debate is an important part of seeking views from this Chamber, just as the consultation paper allowed a wider input. It has been suggested that a draft should be made available before debates in this Chamber on any Section 30 order. As I indicated earlier, these are important and interesting suggestions that we will certainly consider further. I know that the noble Lord, Lord Browne, understands that I cannot make any commitment on what will happen. However, I am sympathetic to the concept of identifying a means by which there can be further consideration, and indeed further accountability, on the part of Ministers who are negotiating these matters. We all have an interest in these matters and a part to play. It might be useful to engage with others in opposition and our colleagues in government to try to identify how best we might achieve that.

[Lord Deben]

I thank my noble and learned friend for giving way but does he accept that this is also very important for those of us who are not Scottish, and for the nation as a whole? We must feel that this decision, which will be made by the Scottish Parliament, is fair. I am not saying that we should have a say in it but we should understand the system. I hope he will ensure that the English, Welsh and Northern Irish are fully informed of the care with which this measure is being taken forward because there is a distinction between this decision and any decision that may be made subsequently on further devolution. The comments of the noble Lord, Lord Reid, on that are very important. However, we must make sure that the whole of the United Kingdom recognises that this process is fair, not just to the Scottish people but to the whole of the United Kingdom.

[Lord Wallace of Tankerness]

I have considerable sympathy and support for what my noble friend says. I think that the noble Lord, Lord Williamson, was the first Peer to express a view on this matter who did not speak with a Scottish accent, and the noble Lord, Lord Empey, also contributed to the debate. I am certainly acutely conscious—the Government are also acutely conscious of this fact—that although a referendum on independence is a matter for the people of Scotland to decide, nevertheless that process impacts on other parts of the United Kingdom. I believe that this is a two-way process. I believe that Scotland is better off as part of the United Kingdom. I also believe that the United Kingdom is better off with Scotland being part of it. Therefore, other parts of the United Kingdom have a legitimate interest in this matter. A Section 30 order would have to come before your Lordships’ House, and indeed the House of Commons, for approval by the Parliament of the United Kingdom.