Marriage (Same Sex Couples) Bill

Lord Elton Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Elton]

My Lords, my father told me that when this House was evacuated from this Chamber to let the House of Commons sit here, the Lords moved to the Robing Room. The space there was limited by the voting lobbies on either side, the rails below the Throne and the Bar at the bottom of the House. He said that the result was not really a Chamber but a rather comfortable drawing room, in which one could not have oratory but only talk to each other. He thought it was a great pity that the Lords returned to this Chamber. We have heard a lot of oratory today and I think sometimes it moves people to go a little further than they intended. For instance, my noble friend Lord Deben said that anyone who opposed the amendment did so out of ignorance or something—

[Lord Deben]

I am sorry. If that was said, it was a mistake. I said that, were we to pass this amendment, some people outside, either through ignorance or bad will, would use it in a way which would be damaging and divisive.

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[Lord Elton]

I am delighted. I can move swiftly on to my other small, brief point, which is simply that after a battle the battlefield is covered with broken lances, some of which are worth picking up and mending. We have to distinguish between “equal” and “the same” and the difference has to be understood. Underlying this there is an assumption that if something is different it cannot be equal. I ask your Lordships to look at other noble Lords around the Chamber for a moment or two and remember that this is a House of Peers. We are all equal and, by gum, we are all different.

[Lord West of Spithead]

My Lords, in the mid-1990s I was the Naval Secretary with responsibility for naval personnel and the Special Investigation Branch. On taking up that post, I discovered the degrading treatment that was meted out to people suspected of being gay, who had anonymous phone calls made about them. It was still illegal to be gay in the services. I was shocked and appalled at how gay people were treated. I stopped that behaviour immediately and then pushed very hard to allow them to be accepted in the Armed Forces. Thank goodness, that happened because it worked brilliantly and it is a good thing to have done. We have a terrible baggage from how we have treated homosexuals and lesbians in this country, as was said by the noble Lords, Lord Deben and Lord Fowler, and others. I am afraid that this is a wrecking amendment. When I came into the Chamber, I did not know how I would vote on the amendment. However, having listened to the arguments put forward, I fear that this is a wrecking amendment. The noble Lord, Lord Pannick, is absolutely right: every marriage is different. Will this demean my marriage? It will not do so at all. I believe that the people we are discussing should have the opportunity.

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[Lord Elton]

Before the noble Lord sits down, I wonder if he could enlighten me; I am only an ignorant layman. Am I right or wrong in believing that judges can in fact pass a case to another judge if they have difficulties with it, such as we have been talking about?

[Lord Pannick]

I am not aware that judges have an ability to refuse to hear and determine cases on the basis that they disapprove of the particular law of the land that they are charged with the duty to enforce. They accept as part of the job that their job is to apply the law; the law is made by Parliament.

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[Baroness Howarth of Breckland]

I apologise to the noble Lord for interrupting but I am anxious to ask a simple question. I have been a public servant for many years and have had to make difficult assessments and understand the nature of different staff and what they bring to the job. The arguments about generosity and inclusiveness are extremely attractive, but how does a manager decide who has a genuine conscientious objection and who has not? Unless you have criteria and people have previously said something about where they stand on the issue, it will be very difficult to make that decision. Unless there is absolute clarity about the matter, some people will choose not to perform a ceremony because they do not want to do it as opposed to having a conscientious objection to doing it. What about all the other conscientious objections that people may have? Should they not be able to object to marrying people who have a serious criminal history? What if they discover that one of the marriage partners has been a paedophile? Do they have the right to voice a conscientious objection to marrying them? This argument could get us into enormous difficulties if we carry it through.

[Lord Elton]

My Lords, the noble Lord, Lord Peston, is right in one respect: we are making a meal of a very small issue. At Second Reading, the House agreed to swallow a camel. We are now straining at a gnat, if I may use an image which the right reverend Prelate will understand. The noble Lord, Lord Lester, quoted the Ladele case at Strasbourg. That case proved that there are registrars with conscientious objections and that if the law is not amended they will lose their case and their job.

It also proves that if there was one registrar who was able to go all the way to Strasbourg, then there must be at least a few dozen others who were not able to afford it. It is that handful that we are talking about. If you doubt that it is a handful, then listen to the national panel, who assure us that there is none, which means there can be only very few. This amendment is concerned only with seeing that for the remaining part of their careers those people do not suffer for what, in their eyes and certainly in mine as well, is an unavoidable injustice.

If we are all to be as generous and big-hearted as we say we want to be and get closer together, can your Lordships not find it within yourselves to look at these few people? We are looking for justice, not vengeance. Surely we can find in ourselves the guarantee that these people will not lose their jobs and their pensions because they have a belief that was valid for their job when they took it on and the job then changed.

[Lord Walton of Detchant]

My Lords, this may by no means be exact, but when the Abortion Act became law many years ago, it was quickly recognised that doctors, particularly obstetricians, who were of a particular religious faith, might well have a serious objection to carrying out abortion on ethical grounds. That was even if, on complete medical advice and investigation, patients had been shown to have fulfilled all the criteria established by law. Some could have argued that those refusing to conduct abortions were not fulfilling their terms and conditions of service within the National Health Service. That argument was not widely used, but on the other hand it was quickly recognised by the doctors’ regulatory authority, the General Medical Council, that it was proper for doctors of that particular religious persuasion, who had an immensely powerful objection to carrying out abortion, to be able to refuse to do so on religious and ethical grounds. However, they were advised that in those circumstances they should do their best to see that the individual in question who had fulfilled all the conditions set down by law should be referred to another consultant who might be willing to carry out that procedure.

To the best of my knowledge, registrars who are public servants do not have a regulatory authority. It may be argued that those who refuse to carry out and register a single-sex marriage on religious or conscientious grounds do not fulfil their existing terms and conditions of service. This is a simple amendment. It protects those registrars at present in post who object to carrying out single-sex marriages on powerful conscientious grounds. Once they have retired, the issue will no longer be with us. All registrars appointed in future will recognise that the terms of this law on single-sex marriage apply to them and they will not have the right to object on grounds of conscience. This amendment protects the ones who are at present in post and we should strongly support it.

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[Lord Wallace of Tankerness]

I was making the point that there are a number of grounds on which one might say one had a religious belief. Are we to have a hierarchy of religious beliefs, some of which will allow a registrar to exercise a conscience clause and some of which will not? However, as the noble Baroness, Lady Richardson, said, there might be some areas of the country with a small number of register office staff where it could be difficult to find a registrar who would marry them.

We sought further information from the National Panel of Registration and its letter has been placed in the Library of your Lordships’ House. As my noble friend Lady Noakes indicated, there has not been a huge demand for this amendment, quite the contrary. It would be easy to dismiss this letter but very often the House calls for the views of bodies which represent particular organisations. The letter states:

“The objection to a conscience clause is based on Registrars being local authority employees who are expected (and willing) to carry out all the functions that their role covers. On a daily basis, Registrars deal with many scenarios that for those with strong beliefs (religious or otherwise) would possibly not be able to carry out. Examples include: registering the birth of a child from a same-sex couple; undertaking marriages for previously divorced persons; or carrying out civil ceremonies and registrations. Registration Services and, in particular, the Registrars, are passionate and proud about the services they deliver and the customers they work with. For the past 176 years, Registrars have been carrying out their duties and have never wanted a conscience clause, and do not see the need for one now … The beliefs we bring to work are respect and tolerance and we would wish that to continue”.

[Lord Elton]

Could my noble friend read on? Does it not say that,

“we leave beliefs at home”?

Does that not say a great deal about this?

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[Baroness Stowell of Beeston]

I can give your Lordships absolute, categorical reassurance that anybody who expresses that view is being absolutely lawful. What I cannot give the noble Lord categorical assurance on, which is something that we debated at length at earlier stages of the Bill, is that there may not be somebody out there who decides to try to take action against them. If they were to do that, the law would protect them, because the view that the noble Lord has just expressed is absolutely lawful. It is legitimate, and they can hold that belief and express it. Clearly, as noble friends who are lawyers have reminded me before, whenever a judge hears a case he has to take in all manner of different contexts in order to consider the way in which those words are expressed. But I believe that I can give the noble Lord the reassurance that he is looking for on that point.

[Lord Elton]

My Lords, on that point, could my noble friend tell me whether she had a letter from a Mr Tony Miano, which is relevant to this. If not, may I pass it to her to read before Third Reading?

[Baroness Stowell of Beeston]

If the gentleman that my noble friend refers to has written to me, the letter has not reached me, but I have seen a copy because I know it has been circulated widely. I am aware of it. What his experience tells us is the point that I just made, if I understand that experience rightly and it was as has been reported in the media. I was not there and do not have the full details of the event. If he expressed views as I have just explained, he was being absolutely lawful. I understand, according to news reports, that he was arrested, but no charges were brought against him because the law is clearly on his side.

My noble friend has just given me the opportunity to remind noble Lords of something. I was going to make this point in any case to the noble Lord, Lord Dear, because he said we are not making any concessions in this area. It is important to remind him and the House that we have amended the Public Order Act to make it absolutely clear in the provision that already exists in that Act that it is absolutely lawful for people in public discourse to express this view. We were happy to make that amendment to a section that already exists. That change has been made. On a general basis, I also point out to the noble Lord and the House that later we will debate an amendment we are moving in the context of greater clarity for the protection of religious freedom around the meaning of the word “compel”. We are listening and we are making changes where we think it is right to do so and no harm will be done. In that context, the proposal that the noble Lord has put forward is not necessary for all the reasons I have explained. I hope that he feels able to withdraw his amendment.

[Lord Dear]

My Lords, I am much reassured by what the Minister said. She mentioned the Public Order Act. Of course, that allows me to parade, after a defeat here, a success in removing the word “insulting” from Section 5 of the Public Order Act shortly before Christmas with a fairly substantial majority. That was taking the word “insulting” out but leaving in “threatening” or “abusive” words or behaviour in a public place. Amendment 4 is really aimed much more at comments made in private, not in a public place, as defined by the Public Order Act, which the noble Baroness alluded to.

I remained concerned. I mentioned before, as did others today, the large number of people who are concerned about a change to life as they see it, to put it in those terms. Certainly, from my own personal point of view, I would not withhold the words “worthy of respect” from same-sex marriage if this Bill becomes law. Undoubtedly, it will do. The moment it becomes law, I shall accord that respect, undauntedly, to those who are in a same-sex relationship as I do to those in a traditional relationship. I hope, too, that that will go for the vast majority of people in this country.

I am much reassured by the response given to the question posed by my noble friend Lord Butler of Brockwell because I was going to make the same point. He saved me from posing that question again and perhaps losing my voice in the process. I hope that, in future, we will find that this short debate has been unnecessary and that in fact the holding of a belief and espousing that belief into some sort of fairly anodyne comment—one not meant to insult, a simple “I believe X”—will not get those people into trouble. The Minister has been so fulsome in the way she responded to that question that I have great pleasure in withdrawing the amendment.

[Lord Elton]

Before the noble Lord does that, can I just remind him that we are actually debating the amendment to his amendment? The last word on that has not yet been said.

[Lord Cormack]

My Lords, I am most grateful for the generosity and courtesy of my noble friend Lord Elton. I will not detain your Lordships. I wish to withdraw the amendment to the amendment. Having understood that that desire is similar to that of the noble Lord, Lord Dear, we appear to be in accord.

Marriage (Same Sex Couples) Bill

Lord Elton Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I have listened to this debate with some concern because we have heard references to conscience in a space in which conscience may not belong at all. We have heard about shades of grey in this debate; this evening, we have had shades of brown. I strongly agreed with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, when he referred to the judiciary. What occurs in these situations? Things may have changed a little since the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor. Perhaps in those days county court judges in Welshpool, Caernarfon or Lambeth were able to pick and choose their way through cases they liked or did not like. However, if I may respectfully say so, the reality is that a judge is a very senior form of public official who hears the case that is presented before him by an often hard-pressed and unsympathetic listing officer. It is form of appointment, as a doctor’s appointment might be.

Equally, if somebody wishes to enter into a civil marriage, what qualifications are needed? They have to establish that they are 16 or over, free to marry and not closely related. There is no issue of conscience involved in that. Then they have to make a convenient appointment to attend before the registrar who, like a judge hearing a case, happens to be on duty on that day. They have to produce some documents—it is a bit like opening a bank account—including their passports, birth certificates and a utility bill or bank statement. Once the appointment has been made with those documents, they attend and there is no liturgy whatever. They are required to exchange promises if they are marrying, but there is no set form. Of course, the registrar helps out if required but they can write their own promises and exchange them quickly and informally. Where is the conscience aspect of this? The registrar is simply a public official providing the statutory facility to enter on a register the names of two people who wish to be married. That is the beginning and end of it. It could not be more different from going to see a vicar, priest, rabbi or imam to seek a marriage founded on a religious belief.

I have huge respect for my noble friend Lady Cumberlege and it is with great regret that I disagree with her so profoundly. However, on this subject, I think we are allowing this debate to trespass into an area in which it does not belong. I urge your Lordships to reject this amendment accordingly.

[Lord Elton]

My Lords, it is trespassing very close on bedtime, too, so I will not take much of your Lordships’ time. I have an amendment in this group which I think your Lordships have forgotten. It is very short and I will try to be the same myself. I start by picking up what the noble Lord has just said. You make an appointment before you go to see the registrar. You do not walk in the front door and say, “I would like now to be married. This is my happy day”. Therefore the scenario the noble Baroness painted could not occur.

[Baroness Brinton]

That is not true.

[Lord Elton]

Heads are being shaken all around. I would like to hear.

[Baroness Brinton]

I apologise for intervening. It is quite possible not to be married by the registrar who you see in the previous meeting. It also quite possible for people to have names that do not distinguish their gender.

[Lord Elton]

The registrar they meet will be able to distinguish their gender and he will put that into the machine and the right people will be there.

[Baroness Brinton]

Why?

[Lord Elton]

That is what the amendment would provide, which is what we are talking about. Let us not spend too long on this. I have an amendment which simply gives an exemption to the registrar and the superintendent registrar but leaves the service under the control of somebody who is committed to both sorts of marriage, which seems to me is absolutely essential.

There were objections about this opening the door to all sorts of things. The noble Baroness, Lady Thornton, suggested objections to mixed-race marriages. I think that her Amendment 16 lacks a definition. It should define acceptable grounds for religious and conscientious objection. It could be a referral to marriages carried out under the appropriate clause of the Bill. That would close that door and restrict it entirely to this. One does not have to be an enemy of the Bill to see merit in what my noble friend proposes. There is merit in protecting the consciences of people who do a good public service and who, like other people in public services, should be allowed to do it within the limits of their conscientious beliefs.

If we are coming to a compromise, the noble and learned Baroness, Lady Butler-Sloss, has put her finger on it, as has the Joint Select Committee, and there should be an exemption—I think it is called grandfathering—for people already in post before this Bill becomes an Act. I have said my piece. My noble friend is in the right area but it needs to be focused.

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[Lord Wallace of Tankerness]

My Lords, I start by thanking my noble friend Lady Cumberlege for introducing this amendment, which has certainly given rise to a good debate. There are clearly some strongly held views on both sides and some powerful arguments, too. I have listened carefully but it is important that I set out and clarify the Government’s position. The noble Baroness, Lady Thornton, has just quoted the Secretary of State, so it may not come as a huge surprise but it is important to give the reasons why we take that view. As the noble Baroness indicated, it is a view that was argued on behalf of the United Kingdom in the European Court of Human Rights in the Ladele case, and the court found that our law at present regarding civil partnerships falls within what is legitimate under the European Convention on Human Rights.

Marriage registrars are public officials performing statutory duties on behalf of the state. We believe that it is an important principle that they should perform their duties in accordance with the law, as decided by Parliament, and without discrimination. I noted—I hope reasonably accurately—what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said: that public servants should, with very limited exceptions, serve the public according to the law as democratically decided. That is fundamentally the Government’s position. If this Bill is passed, the marriage of same-sex couples will be lawful in England and Wales, so marriage registrars must perform their duties in relation to the solemnisation of marriages between both opposite and same-sex couples, without discrimination.

I paid attention to the parallels made with areas such as abortion and conscientious objection in religious education, which were powerfully and sincerely argued. However, it is too simplistic to draw a parallel between a conscientious objection regarding a doctor not performing an abortion and one where a registrar seeks conscientious objection not to perform a same-sex marriage. They are not comparable. For some people with a very strong religious conviction the right to life is paramount and in such circumstances, the argument that the state should not require them to act against their conscience is highly persuasive. I do not think that anyone would reasonably say that same-sex marriage can be seen in the same terms. That was picked up by the noble and learned Baroness, Lady Butler-Sloss, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lady Noakes.

The most significant difference in terms of the Abortion Act exception is that medical staff do not discriminate on the basis of their patient’s personal characteristics. They do not pick and choose which patients to treat on that basis; for example, on the basis of a particular person’s race or religion. The exception being sought for registrars does precisely that, on the basis of the couple’s sexual orientation. Moreover, for medical staff who object to taking part in abortions that is only a small part of their daily duties, but for a registrar conducting marriage ceremonies, conducting marriage ceremonies is at the heart of what they do.

Reference was also made, not least by the noble Lord, Lord Browne of Belmont, to teachers. I understand that the exception there is not framed as a conscience clause, as such. The provision relating to the ability of teachers to opt out of teaching RE is set out in Sections 59 and 58 of the School Standards and Framework Act 1998. These specify that if you teach at a non-faith maintained school, you are not required to teach RE and cannot suffer any detriment because of that refusal. If you teach at a foundation or voluntary-controlled faith school and are not a reserved teacher, you are not required to teach RE, and, again, cannot suffer any detriment because of that refusal. If you teach at a voluntary-aided faith school, refusal to teach RE in accordance with the religious tenets of the school might well affect your remuneration or promotion, or you might not be employed in the first place. Unless a teacher is specifically appointed to teach religious education they cannot be compelled to do so, regardless of whether they are an atheist or not. Therefore, while I hear the arguments and understand where they are coming from, the parallels are not particularly helpful in dealing with what we are discussing.

The Government are clear that in extending marriage to same-sex couples, the Bill should protect and promote religious freedom. That is why, as we heard again today, it contains a quadruple lock of religious protections. However, the functions performed by marriage registrars are civil in nature. This is also the case in relation to their functions when they have a role in religious marriage ceremonies, such as taking notice of marriages, issuing certificates and being present in cases where there is no authorised person. I am grateful to my noble friend Lord Carlile of Berriew for describing what can happen when making an appointment, and later with the ceremony. Some would say that the example given by my noble friend Lady Barker would be unlikely, because by that stage people would know what was about to happen. Nevertheless, it could still be the case that someone would turn up for their initial appointment and suddenly find themselves met by someone who refuses to see them and take their details. The personal hurt that that could cause should not be underestimated.

[Lord Elton]

My Lords, the protection extends to conducting the marriage, not preparing for it.

[Lord Wallace of Tankerness]

My Lords, following that logic, surely a conscientious objection must be as much to facilitating a marriage as performing it—otherwise, it puts into question what the nature of the conscientious objection is.

As public officials, marriage registrars must perform their duties for all members of the public, without discrimination on grounds of sexual orientation or any other matter. They should not be able to pick and choose which members of the public they provide their services to. Amendment 16 refers to,

“consent to the taking place of, a relevant marriage ceremony to which he has a conscientious objection … The conscientious objection must be based on a sincerely held religious or other belief”.

The noble Lord, Lord Alli, and my noble friend Lord Carlile of Berriew picked up on the point that that could include the marriage of divorcees. No doubt the right reverend Prelate will correct me if I am wrong, but certainly until relatively recently it was the position of the Church of England that it would not marry divorcees. Therefore, in many cases divorcees who could not marry had little choice but to go to a registrar. If the registrar adopted the same religious view as that taken by the Church of England and sought exemption through conscientious objection, it would beg the question of how the couple could ever find someone to marry them unless perhaps they found a non-Church of England church that would be willing to do so. The door is open to that kind of religious and conscientious objection. It is not a reasonable position that a public official should refuse to provide a service to a member of the public.

The right reverent Prelate the Bishop of Hereford and my noble friend Lady Berridge referred to the fact that the JCHR had reported on this. I rather share the view of the noble Baroness, Lady Thornton, that the position is slightly mixed. This is not a criticism, because clearly the committee heard difficult, competing evidence, and no doubt competing views such as those heard by the Committee this evening. Of course, the Government will give a considered response to the JCHR. It is a very tight timescale, but we would aim to do so before Report. I hope we can do that.

The Government are confident that the Equality Act 2010 provides the right balance between protecting the right of freedom of expression and the right to manifest one’s belief, alongside the need to protect the rights of others. As was said on a number of occasions in this debate, the European Court of Human Rights, in the Ladele case, supported this view. I will not go over all the details; they were well rehearsed. The United Kingdom refuted the case put by Ms Ladele when she went to the European Court of Human Rights. We argued that our law strikes the right balance between an employee’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation. We believed our law was compatible with the convention and that the Court of Appeal made the right decision under domestic law and the convention, given the particular circumstances of the case. As has been noted, the Court of Human Rights generally upheld that view and noted that the court generally allows national authorities a wide margin of appreciation when it comes to striking a balance between competing convention rights. It held that the national authorities in this case, the local authority employer and the domestic courts, did not exceed that margin of appreciation available to them.

Succession to the Crown Bill

Lord Elton Excerpts

Wednesday 13th March 2013 Lords Chamber

[Lord Elton]

My Lords, my amendment has been grouped so that the first and last stand together. My noble friend has fully explained the circumstances that make the amendment necessary. He has traced the identification of the monarch from the Act of Settlement through various other Acts to the present. The question is whether that is a continuous and incontestable line or whether there is doubt thrown upon it. He has demonstrated that there is doubt—a point that I picked up in Committee. Doubt is thrown on it by the Human Fertilisation and Embryology Act 2008. We have discussed that in Committee but there are rather more noble Lords here than there were on that day, so it is worth repeating that Section 48(7) of the HFEA 2008 recites what is not to be altered or touched by what is in that Act.

The two things caught out are titles and other honours. To the lay mind, that does not embrace the possession of the Crown, which is the subject of this Bill, and therefore does not seem to offer any of the protection that my noble and learned friend the Lord Advocate says that it offers. I cannot see the principle by which it could. The principle will apply to the 1987 Act—that is in the same letter from the Lord Advocate referred to by my noble friend. Another letter refers to “us”—being the Government—and the Lord Advocate says that the, “lesser includes the greater”. I think that was the phrase. If that is right, my noble and learned friend should know that that brings instantly to my mind an image of a bar, other than the one to which he was called, and a quart being poured into a pint pot with an awful mess on the taproom floor. The greater surely includes the lesser, rather than the other way round. However, that is irrelevant because that referred to another Act, and he did not advance that argument in the case of this Act.

My simple point is that the Act that the Government say purports to provide protection for the succession of the Crown does not do so. It specifically mentions other objects. Incidentally, my noble and learned friend referred to this in Committee, almost subliminally. If I were a psychiatrist, I would be interested to know how he would interpret the fact that he said:

“The Bill will maintain the position under the Adoption Act and the Human Fertilisation and Embryology Act 2008 referred to above. It will not change the way the Crown, or titles”—

not “and”, but “or titles”—

“or dignities, descend”.—[Official Report, 28/2/13; col. 1217.]

It seems to me that that betrays the fact that it is a separate concept; it is not contained in that definition. Therefore, I ask my noble and learned friend to consider before Third Reading putting in the words of my amendment, which would clarify this beyond doubt. Even if my noble and learned friend and the Government think that this is unnecessary—like him, if I embrace the lesser and the greater—it is still not harmful. If they are wrong and we are right, it needs to be done.

[Lord Trefgarne]

My Lords, I broadly support my noble friend Lord True in his amendment. Indeed, at an earlier stage of my deliberations about today’s proceedings, I thought of tabling an amendment to do something similar to what he is now proposing. Having read my noble friend’s amendment, however, I thought better of it and withdrew my amendment for the time being.

My only reservation about my noble friend’s amendment is proposed new subsection (3) of the new clause, which says that the proposed new section,

“should not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply”.

I would have thought that proposed new subsections (1) and (2) were absolute considerations, thought to apply willy-nilly, and Parliament ought not to have the right to overturn them. However, that is a small point compared to the principle of what he is proposing, which, in general, I support.

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My noble friend Lord Jopling raised an important point born of his experience as a distinguished Member for Westmoreland, if I remember correctly. I say to him and my noble friends Lord True and Lord Elton that of course these are important issues and I will consider them again. I particularly want to consider the point raised by my noble friend Lord Jopling. I will write to him and others who have contributed to this debate because these points are important.

[Lord Elton]

Before my noble and learned friend sits down, perhaps he could clear up one thing in my mind. I certainly support my noble friend but if he were to withdraw at a later stage, I would be minded to continue unless I was satisfied.

My noble and learned friend has again rested importance on the definition within the HFEA 2008, but he preceded that by saying that the real defence was in the interpretation of “heirs of the body” and “natural-born”. Therefore, that is not relevant, if that is the full defence. If the lesser must include the greater, the Crown is the fount of honour and if you imagine it as just that—a spring of water—it can be pure until he upsets his picnic basket into it. It seems to me that the picnic basket defence is in what he proposes but the actual spring water is not protected.

[Lord Wallace of Tankerness]

Without a lot of thought, I am not sure that I want to embrace that particular analogy. The point I was seeking to make was that if the transmission of a title of the peerage is not affected by the developments that appear in the legislation, a fortiori nor should the succession to the Crown be affected. It is obviously far more significant—I am searching for the right adjective—and of far greater importance than the transmission of a title. Therefore, our belief is that that would not be affected and that in this case the lesser must include the greater.

I have also indicated that with regard to the heirs of the body, it is the position, which my noble friend Lord True accepted, that only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear as a matter of common law. He then went on, as my noble friend has done, to raise more recent statutes. However, as I have indicated, my noble friend Lord Jopling raised an important point about where the child is the natural child of the mother and father. I want to reflect on that; it is only proper to do so. I shall certainly advise and write to my noble friend, and copy the letter to others who have taken part in this debate. On that basis, I invite my noble friends not to press their amendments.

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[Lord Kilclooney]

My Lords, I am not an Anglican; I am an Irish Presbyterian. Presbyterianism is the main religion in two parts of the United Kingdom—Scotland and Northern Ireland. The head of the Presbyterian Church, the Moderator, is not the head of a sovereign state; nor is the head of the Methodist Church the head of a sovereign state. That is where the crux of the matter rests.

Noble Lords may recall the crisis confronted by the Social Democrat Government in Belgium when the late King Baudouin was forced to abdicate. At that time, the Social Democrat Government in Brussels introduced social legislation; I forget whether it was on family planning, divorce or another family issue. They presented the Act of Parliament to the King for royal assent. The King said that he had two loyalties—to the state of Belgium and to the Vatican state—and he had to make a decision on which got priority. He came down in favour of the Vatican. As a result, he had to abdicate. A regent was appointed who then signed the Social Democrat Act of Parliament, and then the King was restored to power. It was a very neat exercise. However, it is also a warning and a lesson to the United Kingdom.

I found the right reverend Prelate’s account of the talks between the Roman Catholic Church and the Anglican Church very instructive and helpful, but I still think that an area of ambiguity remains. That being the case, although I am not an Anglican, I come down in favour of the amendment.

[Lord Elton]

My Lords, I entirely agree with my noble friend in his attempt in the amendment to achieve clarity. However, as the noble Lord, Lord Marks, has demonstrated, it would not do that because it could not work in its present form. Whether or not anything can be done between now and Third Reading to simplify a very complicated process in the Bill, I do not know. However, for that reason, I cannot support my noble friend.

[Lord Burnett]

My Lords, I have not spoken before in this debate and I hope that noble Lords will forgive me for being an interloper. However, I am a Catholic and should like to thank the right reverend Prelate the Bishop of Guildford as well as my noble friend Lord Marks of Henley-on-Thames for their contributions. Obviously—by implication, anyway—I oppose the amendment.

--- Later in debate ---

[Lord Deben]

My Lords, I have been somewhat controversial during this debate so I cannot claim the virginity of my noble friend Lord Hamilton. The purpose of this Bill is to rid us of discrimination. I am sad to say that we have not proceeded as far as I would have hoped, but that is obviously going to be very difficult. But in so proceeding, it ought not to leave us with difficulties in the future. The purpose is to write something that is going to work, however odd the circumstances.

What we are trying to do here is to make decisions that are unconnected with the personalities involved. That is why we want to do this at a point where it does not affect any individual. We have been arguing that we do not want a situation in which we have to make some immediate decision because this Bill is defective, and thereby have a public argument about whether a particular person in particular circumstances is suitable to be an heir, or one of the possible heirs, to the Throne. That is what we are trying to avoid.

I put it to my noble and learned friend the Minister that we have had enough examples suggesting that six is too small a number so as to make it happier if we have a larger number. Given that we accept that six people have to ask permission, it does not seem absolutely dreadful that 12 people have to ask permission. I do not quite understand why it is six. I agree with my noble friend that six does not seem to be a particularly valuable number. I thought it was unnecessary to suggest that the figure was brought into doubt because of the progenitor. We can forget about the progenitor of this; it is simply that six does not seem to have any particular connection with it.

[Lord Elton]

My noble friend has had even more ministerial experience than I have. Has he not observed that once a number is on green paper, it becomes sacrosanct?

[Lord Deben]

There comes a point at which people think that there is some nobility about a figure that has been chosen, even though its history may be much less noble than the guise it assumes. This does not seem to be something that the Government should argue about.

I have to say something rather serious to my noble and learned friend. I have sat in this House for two and a half years now and the number of times I have come across things on which it would be very easy for the Government to give way—things that do not really matter but which might just be helpful, but where they solidly go on defending the indefensible—is really very peculiar.

--- Later in debate ---

[Lord Cormack]

My Lords, I strongly support my noble friend. He made a splendid speech in Committee and again this afternoon. Any amendment that can unite my noble friend Lord Deben and me deserves the support of the House. I hope that the Minister will not attempt to resist it and will heed the sensible words of my noble friend Lord Deben. What is the point of resisting? This is not a point of principle, but of practicality. To have 12 builds in an extra safeguard and rules out the possibility of a different sort of ambiguity, to which the right reverend Prelate referred in his earlier admirable speech. No one has spoken against this amendment. I am sure the Minister will incur not only the admiration and good will of the House, but the admiration of those outside who are following these proceedings. If by chance my noble friend does not feel able to accept the amendment, I hope that my noble friend Lord Lang will press it.

[Lord Elton]

I speak only to add weight to the perception that I hope that my noble and learned friend is getting that the whole House supports the amendment, and that he will have a major task in showing us significant downsides to prevent all of us flocking around my noble friend.

[Baroness Hayter of Kentish Town]

I will live up to what the noble Lord, Lord True, expects and disappoint him. Not everyone was here in Committee, when this was discussed at greater length and there was an amendment to reduce the number—I think to four, or even to zero—so it was not as clear-cut then that the number should be increased. Indeed, the number six is not the full number of people who will necessarily always have to seek permission, because they have to seek permission at the point at which they marry. It could well include far more people. Someone who may not be heir to the Throne within the first six at any one point could be in that position by the time that they want to marry. It applies at the time of their marriage, so more people may well have to seek permission.

As we said when this was discussed at greater length in Committee, with more evidence given than perhaps all noble Lords have had a chance to read, we feel that this is not an exact science. We know that five were probably as many as were ever needed, so we thought that six gave a useful additional margin.

We certainly do not think that it is sensible to involve an unnecessarily large number of people in having to seek permission of the Crown in order to marry when they have no realistic possibility of inheriting the Throne. We do not know on what grounds a monarch would debar someone from a particular marriage if it was not about religion, although one noble Lord suggested that. We do not know what sort of reasons a couple would have to consider when deciding whether to go ahead with the marriage and give up their place in line. It seems to us strange to put a young couple through that when there is no good reason for doing so.

I should add that although this was not in the original Perth agreement, it is part of the agreement that has been discussed with all the other countries, with all the hard work done on everyone’s behalf by New Zealand. It would need an enormous amount of unscrambling to change the number now when it has been discussed at great length. I am sure that it is in no way the intention behind the amendment that it should be wrecking or delaying. However, I fear that changing the number from six would have that effect. I am sure that we would not want to risk the other really important parts of the Bill, the two bits that the whole House strongly supports—the succession to the Crown of the first born, should it be a woman, and the ability of someone in line to the Throne to marry a Catholic—by delay. We support the continuation of the Bill as it stands.

--- Later in debate ---

[Lord Elton]

My noble friend has moved on from the point that I wanted to pick up on. He is treating the necessity of getting permission from the Crown to marry as if it were a great disincentive to marry and a great burden for these people to suffer, but they are not going to be forbidden to marry; they are only going to be told that they are not in line for succession to the Crown, and I should think a great relief to many of them that would be.

[Lord Wallace of Tankerness]

I hear what my noble friend says, and he makes that point well. It is, indeed, as I and the noble Baroness indicated, an additional requirement and impinges on the lives of individuals. The Bill is trying to seek that balance. It is not a question to which there is one, and only one, right answer. As the noble Lord, Lord Deben, said, it is a matter of judgment. While my right honourable friend the Deputy Prime Minister would no doubt love to take credit for everything that has been put into the Bill—he has ministerial responsibility for constitutional matters and this legislation—I pay tribute to my right honourable friend the Prime Minister who, like his predecessor, sought to get agreement with the other realms and was party to the announcement of the agreement that was made at Perth. The noble Baroness, Lady Hayter, rightly says that this was not part of the Perth agreement, but it was flagged up at the Heads of Government conference in Perth that we would be seeking changes to the Royal Marriages Act 1772. That was followed by Prime Ministerial correspondence, on which agreement was reached on the number six.

My noble friend Lord Lang referred to a letter to the noble Lord, Lord Trefgarne, in which I said that procedural matters would not require the consent of all the other realms. Indeed, there are procedural issues in Clause 3 as to how, for example, the consent has been obtained and signified. However, substantive matters on the succession to the Crown—to which I referred in the debate on the previous amendment and which get into the spirit of the preamble to the Statute of Westminster Act 1931—would require the agreement of the other realms. This impinges on the succession to the Crown. Indeed, the New Zealand legislation, of which I have a copy somewhere here, specifically makes provision for six with regard to those who would require the consent of the sovereign to marry.

The noble and learned Baroness, Lady Butler-Sloss, asked about civil partnerships. Civil partnerships do not require monarchical consent, as a civil partner does not necessarily assume the public role expected of a spouse as sovereign. She also raised same-sex couples, which came up in an earlier amendment moved by my noble friend Lord True. The Government believe that marriage as stated in Clause 3 of the Succession to the Crown Bill means marriage as defined by the jurisdiction in which it takes place. If we take this away from the issue of same sex—to take away from, as my noble friend Lord True said in moving his amendment, the controversy that might surround that—different jurisdictions very often have different rules on marriage. As a simple example, the age for marriage without parental consent was different from that in England. If it was a legitimate marriage in the law of Scotland, it would be recognised as a marriage, albeit that it would not necessarily have been a legal marriage under the law of England.

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Thursday 28th February 2013 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, given that we support the Bill, this amendment does sound rather like, “Please make me chaste, but not quite yet”. Some of us have waited, particularly for the first part of it, for many years and we certainly would not want to see any delay. Therefore, we hope that the amendment will not be passed.

[Lord Elton]

My Lords, I want to add a note of concern to that of my noble friend Lord Trefgarne by referring to the report on the Succession to the Crown Bill produced by the Constitution Committee, which holds the strong view that there is no need for haste.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the effect of my noble friend’s amendment would be, as he has indicated, to delay the removal of the male gender bias in the line of succession for almost 50 years. Perhaps I may pick up the point made by my noble friend Lord Elton and his reference to the report of your Lordships’ Constitution Committee. It is fair to say that since that committee reported, there has not been any undue haste. The time made available for debate on this Bill in the other place was not even fully used up, and in your Lordships’ House we are proceeding in the normal fashion with the appropriate elapses of time between the different stages. There is certainly no intention to cut short the debate in this House.

My noble friend has asked why we are doing this now and at this speed. The position is that the Prime Ministers of 16 Commonwealth nations, of which Her Majesty is the head of state, agreed during the Commonwealth Heads of Government Conference in Perth in October 2011—that is why the date has been put into the Bill—to work together towards a common approach to amending the rules on the succession to their respective Crowns. It is fair to say that that was the product of considerable work and discussion over many years. Indeed, discussions were ongoing during the previous Administration in this country. All these countries wish to see change in two areas, the first of which is covered by this clause, and that is to end the system of male preference primogeniture, under which a younger son can displace an elder daughter in the line of succession. It is right and appropriate that this clause will remove a piece of long-standing discrimination against women that may well have been acceptable in earlier centuries, to which my noble friend referred. This provision will modernise and affirm the place of our constitutional monarchy.

At Second Reading the noble Lord, Lord Janvrin, said that:

“If in the future within the line of succession a younger son were to take precedence over an older daughter, it would seem to be at least controversial and at worst discriminatory, out of date and out of touch. To make this change now, therefore, strengthens the monarchy because it avoids any risk of such deep controversy”.—[Official Report, 14/2/13; col. 802.]

That is why this is an appropriate time to make the change, because it will be done without affecting anyone who currently would have a prior claim on the throne. If, however, we wait for a situation where there may be a daughter and then a younger brother, and we tried to make the change then, it is inevitable that that would be more controversial.

Perhaps it is also worth reflecting that if the Duke and Duchess of Cambridge have as their first born a son, have only sons or, indeed, have only daughters, the effect of this clause may not bite until the next generation, possibly after 2060. However, as the noble Lord, Lord Janvrin, made clear, it would be controversial and possibly even destabilising to the monarchy to have this kind of debate at that point. We look forward to the birth of the Duke and Duchess of Cambridge’s first child knowing that we can celebrate, when this Bill is passed, that whether the baby is a boy or a girl they will have an equal claim to the Throne. I therefore invite my noble friend to withdraw his amendment.

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Thursday 28th February 2013 Lords Chamber

[Lord Trefgarne]

My Lords, I share some of the concerns expressed by my noble friend Lord True. The plain fact is that the single-sex marriage legislation that is on its way through Parliament appears to be generating some unlooked-for consequences—and this issue may well be one of them. I hope that my noble and learned friend can reassure us.

[Lord Elton]

My Lords, I observe that this matter is outwith the terms of the Long Title. However, the Title has been postponed and it is possible to amend it, if necessary.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

I thank my noble friend Lord True for the amendment and for the sensitive and thoughtful way in which he moved it and presented his concerns. Indeed, I seek to reassure him that the amendment is unnecessary.

Subsections (1) and (2) of the proposed new clause state the current position in respect of heirs of the body and adoption or artificial reproduction. I recognise that my noble friend indicated that he was not making any claims as to the drafting of the amendment but he said something that I have previously said—it is important that the succession is removed from controversy and there should be certainty. Subsection (3) could be an opportunity for some controversy if a case had to come before both Houses of Parliament. However, the spirit in which my noble friend moved the amendment was to try to seek some clarity on this matter.

The laws governing succession to the Crown that require that the descendant be the natural-born child of a husband and wife have been enshrined in our constitution for generations. Children who have been adopted may not succeed to the Throne, whether their new parents are of opposite sexes or the same sex. As my noble friend said, it is immaterial; indeed, even without the Bill, the issues he raised are pertinent. I repeat that children who have been adopted may not succeed to the Throne, irrespective of whether the parents are of opposite sexes or the same sex.

It was never our intention to codify all aspects of succession to the Throne in the Bill. Rather, as the noble Baroness, Lady Hayter, indicated, the agreement reached among the realms was quite specifically limited to removing the male bias and ending a specific discrimination against Roman Catholics, and it is not appropriate that we go beyond what was expressly agreed.

Although the Adoption Act 1976 and the Family Law Reform Act 1987 refer only to the succession of titles being left unchanged by their reforms, the Lord Chancellor stated at Second Reading of the Bill that became the 1987 Act that there was no intention to alter the rules on the descent of the Crown. It is also worth noting, as my noble friend observed, that the Human Fertilisation and Embryology Act 2008 states that nothing in the Act,

“affects succession to any dignity or title”,

or,

“renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.

The Bill will maintain the position under the Adoption Act and the Human Fertilisation and Embryology Act 2008 referred to above. It will not change the way the Crown, or titles or dignities, descend. We also consider it to be unnecessary to define marriage for the purposes of this proposed new clause as set out in subsection (1). Only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear. I have tried to keep my response brief and concise, and I hope that it provides the reassurance that my noble friend seeks and has properly raised. I invite my noble friend to withdraw the amendment.

[Lord Elton]

My Lords, I hope that my noble and learned friend on the Front Bench will take time to consider this matter between now and Report, and that my noble friend will also occupy that time. The answer that my noble and learned friend has given does not entirely cover everything because becoming Queen or King is rather more than receiving a dignity or title. The term used in the Bill is “possessing” the Crown, which is different from inheriting a title, and that is surely what we are concerned about.

[Lord Wallace of Tankerness]

We will certainly reflect on this matter and I can assure my noble friend that considerable consideration has been given to it. However, I take the points that he and my noble friend Lord True made and will give further consideration to them. Nevertheless, I hope that I clearly indicated our view with regard to an “heir of the body”.

[Lord Elton]

I accept that that is the current position. I hope that we shall be reassured if it remains the same on Report.

[Lord True]

My Lords, I am grateful to those who have participated in this short debate and apologise for the length of my opening remarks. However, this is an issue of profound potential importance, not only as it affects our country but the Queen’s realms as a whole. It is inherent in the Perth agreement that we have an acquis agreed by all the realms, and no door should be left open to the crawling peg of equalities, rights and other challenge by a potential heir who is excluded from the Crown—as they feel, unfairly—against their rights by the existing deposit of the law.

I am not a lawyer, but I am concerned as an historian that the base of the law and the phrase “heir of the body” is a very ancient phrase which is buttressed only by the common law and the doubtful cover, in my view, of the clause from the Human Fertilisation and Embryology Act that I cited. I agree with the interpretation of my noble friend Lord Elton that that Act may be deficient in terms of providing protection for the Crown from the kind of challenge that might arise. My right honourable friend the Attorney-General made this point to me also, but I am afraid that I do not find full comfort in the remarks made by the Lord Chancellor at a time when the developments in the technology and science of birth and reproduction, and certainly the developments in the nature of the law of marriage, were far distant in the future and not necessarily conceived of. I say to the noble Baroness that this might be remote, but perhaps people thought before 1936 that certain things might be remote. It is the duty of Parliament, when legislating on something as grave as the succession to the Crown which Her Majesty holds on our behalf, to think about the future. It may, of course, be no more remote than that the child whom we all so fondly expect may be born gay.

I will return to the matter and would be grateful for further discussion with my noble and learned friend on the Front Bench to see if we cannot find a way of clarifying this. I am not going to go beyond the Perth agreement, but I think it is important that we have “awful clarity”—in the old language—on this very great matter. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Elton]

My Lords, I have tabled Amendment 13A. I apologise for tabling it so late that it had to be added to the supplementary list, which is always a bad thing to do and is particularly disgraceful for an ex-Minister who knows the strain that it puts on the Bill team. I have apologised to them already. Although my amendment is in this group, it does not belong there, and I therefore believe that I am allowed to unbundle it. I shall do so and move it briefly after this debate.

[Lord Lexden]

My Lords, I strongly support the amendment that my noble friend Lord Lang has explained so fully and convincingly, leaving very little further to be said. Today, we expect families to be of modest size and assume that the future will closely resemble the present. That is surely an arrogant and misconceived assumption. Historically, the monarch’s immediate family has often been extremely large in number, and the Bill ought to provide for a recurrence of a substantial number in their immediate family by extending to 12 the members of the Royal Family for whose marriages royal approval will be required.

How hard it is in any family to secure the triumph of good behaviour. It has been said of George III’s abundant offspring that that they inspired the nation about as much as a procession of Banquo’s descendants inspired Macbeth. The strength of the Crown in those days rested wholly on the character of King George III himself. We should also remember the fragility and impermanence of the world’s order. Reference was tellingly made by my noble friend Lord Lang to the position of Queen Victoria, who was fifth in line of succession at the time of her birth—a position that then oscillated considerably, as my noble friend amusingly told us. However, Queen Victoria very nearly did not inherit. A boy named Hook, out shooting sparrows, sent a shower of pellets through the window of the house in Sidmouth where the future Queen and Empress had been taken shortly after her birth. She narrowly escaped some of the pellets, tearing the sleeve of her nightgown. If the boy Hook had, by terrible mischance, removed Queen Victoria, that game of musical chairs over the succession that my noble friend described would have begun all over again.

I do not believe that six is enough. The number should be extended to 12, although, at the same time—turning to my noble friend Lord Northbrook’s amendment—a strong argument can be made for removing the need for approval altogether. The worldly Lord Melbourne put it in conversation with Queen Victoria. Referring to her disreputable uncles, he said that,

“though the Marriage Act may have been a very good thing in many ways, still it sent them, like so many wild beasts, into society, making love wherever they went and then saying they were very sorry, but they could not marry because their father would not give permission”.

Nevertheless, I do not favour the complete disappearance of the monarchical duty. Unsuitable marriages need to be prevented and 12 is the right number for the monarch’s approval.

--- Later in debate ---

Moved by

[Lord Elton]

13A: Clause 3, page 1, line 20, leave out “from the marriage”

[Lord Elton]

My Lords, my attention was drawn to the subject of my amendment by my interest in the apparent haste in which the Bill was introduced in the other place and spirited through it in such a short time, since when our Select Committee commented on that and the Government have changed the pace of the legislation. My anxiety about this is reawakened by the resolute rejection by my noble and learned friend of even the best argued, most cogent and simple cases that have been put to him. I begin to wonder what it is that makes it so important not to change any part of the Bill.

When I was preparing for this debate, I thought that I would see whether the Bill had been amended already. I was surprised to find that it had in the House of Commons. The words which my amendment seeks to delete from line 20 are the words “from the marriage”. Until Committee on the Floor of the House of Commons took place, the subsection read:

“The effect of a person’s failure to comply with subsection (1) is that the person and the person’s descendants are disqualified from succeeding to the Crown”.

One would think that that was perfectly straightforward. These people are the people who are brought into the Bill for consideration by subsection (4), which is the subsection abolishing the provisions in the 1772 Act, and subsections (1) and (2) then proceed to substitute other provisions for a smaller number of people—we have just been debating what number.

As far as I can see, the effect of adding to the words “the person’s descendants” the words “from the marriage” would be to eliminate from the provisions of this clause the illegitimate progeny of a number of people. Therefore, when I looked in the House of Commons to look at the Minister’s arguments in favour of it, I found that in total, the whole of her argument was:

“Clause 3 is, as a Member put it earlier, one of the more arcane provisions in the Bill. The Royal Marriages Act 1772 currently requires, subject to some very limited exceptions, the descendants of George II to seek the consent of the monarch before marrying”.

So it did, but, as I have demonstrated, subsection (4) deals with that. We are now looking at those who remain, the descendants of the six—or 12 or four, whatever we finally put in—who have or have not got the consent of the monarch to marry. That, she said,

“probably affects hundreds of people”.

They must be a prolific bunch if there are going to be hundreds of them, or else we are talking about somebody else. I find that quite extraordinary. She then said that,

“we do not think that such a sweeping provision continues to serve a useful purpose today”.—[Official Report, Commons, 22/1/13; col. 273.]

Actually, I do not think that relates to the insertion of those words at all; one has to look for a different reason.

--- Later in debate ---

[Lord Wallace of Tankerness]

That is certainly my understanding. That is why we have the implementation clause. Even if we pass this the intention is that the provisions will not commence until all realms have done what is necessary in each of their territories.

[Lord Elton]

My Lords, as this is the realm in which the Queen is perceived as being principally the head, Supreme Governor, monarch and the rest of it, presumably the legislation in the other realms and territories is, in a sense, consequential. Therefore I was a little surprised to hear that they are already putting things on their statute books while we have not finalised what we are putting on our statute book. The question I again ask is: what is the procedure? The timing, I gather, is terminus ante quem non; there is no time by which we have to get this done, so the pressure is off. The next question is: what do we use that time for and how does it impact on the other members of the Commonwealth and the territories? If we were, for instance, to adopt my noble friend Lord Lang’s eminently sensible suggestions—or, indeed, the less sensible, in my view, suggestions of my noble friend Lord Northbrook—would that require those countries which already had something on the statute book to adjust it? Or are they simply saying, “We hereby agree with whatever the United Kingdom Parliament finalises”? It is difficult to know how all this is negotiated and how that affects our dealings in the Chamber.

[Lord Wallace of Tankerness]

My Lords, I will try to help. When we come to later amendments, if there is any further information I can give or anything I say needs to be corrected, I will do so. Some of the realms take the view that under their own procedures they require legislation. It is not for this Parliament to determine what happens in other countries. At Second Reading I reported that a Bill had already passed through the lower House in Canada and had been presented in the upper Chamber. As I said, a Bill was presented to the New Zealand Parliament last week.

Other realms take the lead from this Parliament and have indicated that they do not believe that they will need separate legislation. Their arrangements are such that their head of state will be the person who is the head of state of the United Kingdom. The important point in all of this is that we are passing legislation which will be used in some countries, but it has been done on the basis of an agreement that has been reached.

If the Bill were changed with substantive effect, the other realms would need to adjust their legislation where they are legislating and make sure that the same changes are given effect. That would obviously require the agreement reached between the 16 realms.

As I indicated earlier, the amendment that was moved in the other place was circulated and the other realms were given the opportunity to comment before it was brought forward. They indicated that they were fine. I do not think that it was a substantive amendment, but it was nevertheless one on which we sought to ensure that there was proper consultation and information given and an opportunity to comment. Clearly, if there were a change with substantive effect, that would require further agreement.

[Lord Elton]

Is it a matter of interest in Canada, for instance, whether the number six, 12 or four appears in the Bill at the point we were looking at just now? If so, what will the Canadians do about it?

[Lord Wallace of Tankerness]

My Lords, I do not think that I have seen the Canadian legislation but, in as much as it is giving effect to the same agreement, I would anticipate that the number six is there. If there were to be change, as I indicated in my previous contribution, that would have to be agreed with all the other realms. I will stand corrected, and in response to my noble friend Lord Trefgarne’s subsequent amendment I can clarify that. However, my understanding is that all the realms would have to agree if there was a substantive change.

--- Later in debate ---

[Lord Elton]

My Lords, I am much obliged to my noble and learned friend. I think that my noble friend Lord Cormack’s intervention draws to my attention one of the great dangers that we are in, which I fell into myself a little earlier in these exchanges; namely, the danger of treating ourselves as the big brother who tells everyone else that they have to follow. Things have changed since then, and in these exchanges we need to deal courteously with those with whom we are associated. My intention was not to say that we were the most important realm or that this was the principal realm of the Queen, but to say that, since we were the initiators of this move, naturally we would be the ones who would hope that others would follow.

I think that I have given my noble and learned friend a good opportunity to understand some of our underlying concerns. I hope that when he comes back to the Dispatch Box on Report he will be able to give us a pretty cut-and-dried, laminated explanation of exactly how all this is working, which can go into the record. A letter would be very welcome as a preliminary, but we should have something to indicate that Parliament knows what is going on. I am most grateful for the full answers that my noble and learned friend has given to this probing amendment and I beg leave to withdraw it.

Amendment 13A withdrawn.

--- Later in debate ---

[Lord Northbrook]

Perhaps I may draw the Minister’s attention to something of which I have already given him notice in respect of Amendment 17; namely, the House of Lords Library paper on the Succession to the Crown Bill. It says, in summary, that when there is constitutional change there have to be referenda in the following countries: Australia, Jamaica, the Bahamas, Grenada, St Lucia, St Vincent and the Grenadines, Antigua, Barbados and St Kitts and Nevis. Could he confirm that the Library is correct on these matters and, again, how the timing might take place?

[Lord Elton]

My Lords, I think that that falls outside the terms of the amendment. If I could return to my noble friend’s question, surely the answer to his worry is quite simple: at the end of line 31, insert the words, “subject to approval by both Houses”.

[Lord Forsyth of Drumlean]

My Lords, I was quite struck by an argument that my noble and learned friend used in an earlier amendment when he chided me, in arguing that it was important that Parliament was able to take account of the arguments of other parliaments, and suggested that I might be presenting this Parliament as dictating—as opposed to the Executive; it is okay for Ministers to decide things over lunch, but it would be dictating if Parliament made decisions. I see that he has a point there; if we had brought this legislation through both Houses, there might be a feeling in the other realms that we had it all cut and dried.

I have been reflecting on that in a humble way, and have been so persuaded by my noble and learned friend’s argument that I think that the noble Lord, Lord Stevenson, has got it 100% right. If, as my noble friend Lord Elton has just suggested, we were to amend the commencement provision to require approval by both Houses after the other realms had considered these matters, then we would have an opportunity to demonstrate to all those other realms how we were taking account of the views not just of their Ministers but of their parliamentarians. This proposal is actually a clever and ingenious way of delivering what the Minister himself said was appropriate only a few moments ago.

Succession to the Crown Bill

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Thursday 14th February 2013 Lords Chamber

[Lord James of Blackheath]

My Lords, 325 years ago, the streets were full of a tumult of people celebrating the fact that the previous day, William and Mary had jointly accepted the Throne of England and committed to supporting the Protestant religion as a right of the people. I do not come today to say that I disagree with the principles that the Bill seeks to establish. However, as we have heard this morning, it needs an awful lot of tidying up on many issues. I have serious doubts about whether we in this House have the legitimacy to give a decision. I believe that we would be acting illegally and in contravention of our oath on joining the House if we were to consent by a vote to this legislation.

My reasoning is that I believe very strongly that we have been caught out—as I always feared that one day we would, although no other such Bill has come before us—by the fact that we are being given a delegation of the prerogative of the Crown, which puts the burden on us to decide whether this is in breach of the coronation oath. I submit that it is, and therefore that any noble Lord who votes for the Bill now should walk through the Lobby and out of the front door and should never return, because we will all have automatically disqualified ourselves under our oath of allegiance to support the monarch in the discharge of their obligations under the coronation oath.

Over the past couple of weeks, I asked various notable constitutionalists and legal minds around the House for their reaction to this idea. I find it significant that only one of the six is in the House today. I got a very interesting bunch of answers. Two Members of the Privy Council said almost exactly the same thing: “Good gracious, old boy, what a question. We have never been asked that. Nobody has ever given us any advice on it, so I suppose it must be all right”. That is not a good enough basis on which to proceed with a Bill such as this.

I went to two notable constitutional academics. One of them was my whip, my noble friend Lady Perry. She said: “You’ve got it quite wrong, old boy. It’s absolutely not like this. The Act of Settlement is the only thing that we need worry about, and we can alter it any time we want. We need have no concern about what is in the Declaration of Rights”. The second academic told me: “She’s completely wrong. It’s all about the Declaration of Rights and not about the Act of Settlement at all”.

On further reflection, and having taken further advice, I decided that they were both wrong—and I will show why in a moment. I sat down to work out what would be the reasons why we would receive a delegation of the royal prerogative. At this point, another noble Lord I put it to said: “Yes, you are definitely going down the path of treason”. I do not wish to commit treason, but the situation at the moment with the Bill is that if we are to proceed, we need to know what we are doing in the context of the delegation of the prerogative. I can think of only four reasons why we might have it, and this is where I am treasonous. The first, I believe, is that Her Majesty might very well have decided that this was an issue of such public concern and interest that it should not fall to any member of the Royal Family to give an opinion on it themselves. They are too closely involved. They would rely on the wisdom of Parliament to guide the interest of the people as a whole by giving its opinion on it. That would be fine. That is not in any way exceptional.

[Lord Elton]

I have stood at the Dispatch Box and signalled the ceding of the royal prerogative on more than one occasion. It actually happens quite often; it is just that people do not notice.

[Lord James of Blackheath]

I am grateful for that intervention. The fact that that would apply in this case should be read into the record of Hansard before we are asked to vote. It should come from the Leader of the House. We need that on authority.

There are other reasons why this might be. It might be that the Majesty of the Crown is concerned that this is already seen to be in breach of the coronation oath and it is wondering whether it can avoid that problem by having us give an assent that overrides that breach of the coronation oath.

The third possibility is that the Majesty of the Crown simply does not like this at all and is relying on our good sense and common sense to throw it out. The fourth possibility is that the Majesty of the Crown really does not mind and thinks that it should leave it up to us to decide. We need clarification about the reasons why we have the delegation of the prerogative in this case.

In all of that, I have been making the assumption that we are talking here about the coronation oath. But since I asked my questions, I have found that there is another oath that preceded the coronation oath, which applied to every monarch in the 20th century. It is only 54 words long and I would like to read it to the House. This was signed on the morning that Her Majesty returned from Kenya. She was rushed to Clarence House in order to sign a proclamation oath so that officials could get on with what was now overdue—to get the royal proclamation of the new monarch before darkness set in in London. It states:

“I, Elizabeth do solemnly and sincerely in the presence of God profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the throne, uphold and maintain the said enactments to the best of my powers according to law”.

That is 54 words. I wish noble Lords would tell me which part of the Bill does not shred that oath.

As I said, 325 years ago, William and Mary accepted the throne. The circumstances under which they did so have a direct bearing on where we are today. It is a vexed question for me. Are we concerned with the Act of Supremacy or the Declaration of Rights? I am convinced that it is the Declaration of Rights. Every aspect that is supported by that oath is provided for in the Declaration of Rights, not the Act of Supremacy. Therefore, we need to be sure that we are setting out to amend the right bit of legislation and the right Act. I think that we have the wrong one.

William arrived at Brixham on 5 November, 1688. He set off with his own personal army of 13,500 to London. We call it the glorious bloodless revolution, but it was not. Some 104 people were killed just getting past Reading alone. It was not a bloodless revolution at all. When he arrived here, he was welcomed by the Lords and rulers of the day. James was still in the country. He wanted to go. William wanted James to go as well, but unfortunately the Bishop of Rochester could not get the plot. They sent James to stay with him because it was the nearest place that he could get a boat to go to France. The Bishop of Rochester seemed to think that he was the jailer to James and kept bringing him back every time he went down to the boat. Eventually, the House of Lords had to send some gentlemen down to have dinner with the bishop sufficiently to get him intoxicated so that he would not notice when James slipped out to get the boat, which he did. After that, they were able to proceed with the final negotiations with William and Mary for the throne. They put the Marquess of—

--- Later in debate ---

[Lord Elton]

My Lords, I enter the forum with some trepidation. These are very complex and sensitive matters. Until about halfway through I thought that I would probably scratch. After that, I thought it was too late. I hope your Lordships will bear with me for a few moments.

I start off in a dilemma because I am not aware of any Bill that I have encountered in which the Government have consulted so extensively and for so long around the world and, no doubt, between the two palaces—Lambeth Palace and Buckingham Palace—but they have not actually consulted Parliament at any great length. Of course, the constitution of this kingdom rests on two foundation stones: the Crown and Parliament. One had to listen with sympathy to my noble friend Lord Lang when he complained, in a powerful and important speech, about the haste with which this is being done here.

I am searching for reasons. I think the reason adduced so far has been the impending happy event for the Duke and Duchess of Cambridge. This Bill already has retrospectivity in it in the amendment to the Royal Marriages Act 1772. That principle can be used in this case so there is no hurry for that.

Then the question is: would the danger of an amendment here delay the Bill, making the rest of the Commonwealth unsettled and impatient? But the Bill has already been amended, at Second Reading in the other place. It is a small amendment but quite an important one, which proposes that,

“after ‘descendants’ insert ‘from the marriage’”—

otherwise the principles of illegitimacy would have to be addressed. I do not know if that is being agreed around the Commonwealth but if it is, there is clearly not tempestuous haste needed.

I am sure that will all be explained, and the purpose of a Second Reading is not really to unpick the detail but to address the general principles. The first principle, on which I agree with my noble friend Lord Lang, is that certainty is better than flexibility when it comes to matters of this sort. Secondly, one’s mind is focused, as was the mind of the noble Lord, Lord James, by the bringing to the table of the royal prerogative at the start of this process.

We are at the heart of history here, and many of your Lordships have looked back through history and seen various conflicting things. I see a constitution that has emerged from the power of the Crown being fought over by families and then by dynasties; then the struggle between the wish to be totally sovereign and the wish of the papacy to influence if not guide what happened here, and finally being domesticated after the Civil War in the settlement of 1688. The Crown then became the central focus of the national identity, but it was within the restraints of Parliament.

We have been on that subject for a very long time in this House, because the power of the Crown, which was severely limited by the invention of Parliament, is now being put back into it—but the Crown has changed: the Crown is not an individual; it is not a family; it resides in the Government, all except the very top. The Government do not consist of a thin band of ambitious politicians; they are a vast machine of civil servants, many with a good sense of history, many of them very pragmatic and many of whom regard Parliament as an unnecessary constraint—I have encountered some of them and been told this in terms. We are therefore the trustees of something which is already at risk.

We now look at the functions of a Queen, the person of the Crown, as opposed to the institution of the Crown. That is important in that it is spiritual. There is a withering of the spiritual in contemporary western society, not only in Christian spirituality but in other faiths. A secular society does not have the moral stability of one which has faith at its heart. The combination of the Crown being both the head of state and the head of the established church has an enormous and important symbolism and gives the monarch access to the church and vice versa. That is part of our national identity.

The other great change has been in the demographic composition—I would probably more correctly say the ethnic composition—of the country to which we all belong. That change has been dramatic in my lifetime. Not everybody adapts so quickly and completely as the noble Lord, Lord Carlile, to the culture and ethos of this country. What attracts is not just the permanence, the longevity and the historical continuity to which he referred but also the person of the sovereign. It is a happy coincidence that this issue has arisen during the reign of the present Queen, who I think is closer to the heart and the understanding of the country than almost any monarch in historic memory, and for that we owe her a great debt.

The nature of the monarchy is to evolve, to bend and to change to the needs and necessities of the time and the social pressures on government and on the Crown. It keeps the sympathy of the people by looking after, tuning into and being in sympathy with basic fundamental and moral understandings of the people. One thing is fairness. The introduction of this equality will be widely understood as an element of fairness which is needed in the structure of a country which seeks to be both profoundly democratic and a monarchy.

For those reasons, I bury my doubts and difficulties—quite a lot of them have been dug up during this debate. Some of them will be answered by my noble and learned friend Lord Wallace. As I can see that he is writing something about me, I shall extend my words for a moment or two by saying that the rest of the difficulties will come out in the wash in Committee. I hope that the Committee stage will be as long as is necessary to address the question. That at least is required as a gesture towards those of us who feel that the timetable at the moment is far too fast. I have bored your Lordships too long. I hope that I have reassured noble Lords a little; I have certainly reassured myself quite a lot.

Justice and Security Bill [HL]

Lord Elton Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Carswell]

My Lords, the issues in this Bill can be fairly described as a clash of rights. They could also be described as a clash of wrongs. It is wrong—terribly wrong—that people’s safety and lives should be put at risk by the disclosure in the public domain of evidence that could, in some way, be withheld without irretrievably compromising the interests of justice. It is wrong, as the Government have said, that they should have to expend enormous sums of taxpayers’ money to settle claims because that evidence might put at risk the lives of people or the intelligence interests and co-operation of our allies. It is also terribly wrong that litigants be left in a Kafkaesque limbo, where they cannot know the case that is being made against them or the evidence that is being produced, or cannot be allowed full consultation with their advocates to ensure that they are able to put forward their own case, if they have one, as effectively as possible.

The balancing of interests and considerations has been traditionally not just a principle but a very strong instinct running through our law. It is far, far better if we can incorporate compliance with that instinct into the present issue rather than impose certain rigid requirements that are incapable of being observed without the risk of considerable and great injustice. I pay tribute to the Joint Committee on Human Rights for the quality of the argument and expression of its report.

There is a range of means in practically every case for reaching a proper solution that acknowledges and gives effect to the different considerations. I give an analogy that is not from the present issues, not from civil law but from criminal law: the protection of witnesses who would fear for their own safety if they were to give evidence in public. This is something of which I have had fairly considerable experience over the years, sitting as a trial judge when many witnesses, quite understandably, were extremely fearful for their lives and safety if they gave evidence.

There was a graduated list of possible ways of dealing with this and one had to consider that in any given case. It started at the lowest end, allowing the witness to give his or her name and address on paper to the judge only, but otherwise giving evidence in the normal way in open court and subject to ordinary cross-examination. At the other end of the scale, the witness was hidden behind a curtain or a screen and his or her voice was distorted so that the persons in the court could have no idea, unless they were clairvoyant, who was giving this evidence. It could have its humorous side. I remember a group of Army witnesses sitting in court—they all had dark glasses on and the most curious wigs, and they looked an amazing sight. But we applied that list as best we could and I suggest that this approach exemplifies the way in which Parliament should deal with this problem. For that reason I support the amendments.

This will not be an easy task for the judges who have to shoulder it. One has to acknowledge that it may not always be discharged perfectly, and certainly it will not always be discharged in a way that pleases the Government of the day. But undertaking that sort of burden is part of the function of a judge and we must trust them to take it on and to discharge it to the best of their ability. We must bear it in mind that in any given case the judge will have expert argument—and the noble Lord, Lord Pannick, has said how effective and persuasive that can be—setting out the issues, giving the judge the opportunity and the time to weigh them up and attempt to come to the best possible solution. I submit that it is far better to run the risk of justice being imperfectly administered than to put the judges into a straitjacket at the Government’s behest. I support the amendments.

[Lord Elton]

My Lords, many noble Lords have said that striking a balance between justice and public security is a very difficult task, and that is exactly what this House is now being asked to do. Your Lordships who are learned, or learned in the law, will no doubt have made up your minds by now, but as a Member of the House who is a layman in these matters I rise simply to make a plea to my noble friend. He has brought a Bill to the House asking for more powers to be given to the Government to protect their agents working in the public interest. History is full of such appeals, and the duty of Parliament is to look at them with grave suspicion, particularly, as my noble friend Lady Berridge says, at a time when a Government have achieved so much preponderance in the other place. I am therefore very anxious to have clear statements, in one voice, from the Government who are putting this case, as to the individual merits of the different amendments.

It seems to me that there are not two simple, discrete packages, but that there are individual bits that are appealing and others that are not. Each will have a price. That price will be paid either in cash, by not going forward with the case, or in security, by risking exposure. We need to know that price as we make up our minds on each individual case. I speak as a layman, and I believe that there are many who need this guidance.