Succession to the Crown Bill
Lord James of Blackheath Excerpts(11 years ago)
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“Union with Scotland Act 17066 In Article XXV, Section 2 of the Union with Scotland Act 1706, for “preserve the foresaid Settlement of the true Protestant Religion with the Government Worship Discipline right and Privileges of this Church as above established by the Laws of this Kingdom in Prosecution of the Claim of Right” substitute “preserve the declaration, uphold and maintain the rights and subject specified therein”.
Accession Declaration Act 19107 In the Schedule to the Accession Declaration Act 1910, for “according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law” substitute “according to the true intention to the declaration, uphold and maintain the rights and subject specified therein”.”
Lord James of Blackheath
My Lords, this is in the nature of being a semi-probing amendment. I want to test the extent to which we have arrived collectively at answers to each of the four questions that I have developed through the currency of this Bill, and see whether my noble and learned friend the Minister can satisfy us, in his conclusions, that each of the tripwires and pitfalls that we have seen are now capable of being avoided. I come to this very much in the spirit of the finest executive I ever had the privilege of working with, who used to say, “Don’t give me people around me who know all the answers. I want the people who know all the questions”. It is in that spirit that I come, even though I stand here as somebody without any shred of qualification. I do not even have an 11-plus pass. Given that circumstance, it might be said that I have a right nerve to stand up here and ask these questions today in such an intensely legal affair but then, on the other hand, somebody has to.
In all this, I start by expressing my appreciation to my noble and learned friend the Minister for the considerable time, and the enormous patience and care, that he has given to answering each of the questions that I have raised directly with him. He has been absolutely splendid. My noble and learned friend will not be surprised to hear that while I have read every word he has written with great care, that is not the same as agreeing with every word I have read. It is clear that the principal point of difference between us is that he believes that I am relying on the entrenched status, as such, whereas it is the status and ordinary meaning of the statute law as it now stands, and as it relates to our duty and the Crown’s duty, that concerns me. I repeat: our duty and the Crown’s duty, which I do not believe are the same thing.
I was grateful to the Bill Office for agreeing to write to the Clerk of the House of Commons to ask what basis of interpretation it had placed on the use of a delegation of the royal prerogative in addressing its own debate on this subject. If I understand the very complicated answer correctly, it is along the following lines. The Crown cannot delegate something that it does not posses; it can delegate only the authority that it has, in which case it can delegate the power to us to give an opinion as to whether we want a Bill to pass and say “Content”, but it cannot delegate to us the authority to give it assent. That is retained by the Crown in all cases.
However, the Crown has to adhere to that in strict accordance with the coronation and proclamation oaths which precede it. Those oaths, passed through the Declaration of Rights in 1689, relate to all the powers that the Crown rightly held before the revolution. It ensured that the Crown could no longer deny that it was bound by the statute law with explicit changes to the coronation oath, made by enacting the Coronation Oath Act 1688. The settlement has been said by Her Majesty, on the occasion of the 300th anniversary of that great document, to be the sure foundation of our constitution. I am sure that Her Majesty would take that same view without any amendment today. It will be interesting to see, when and if the Bill passes to her for Royal Assent, how she will interpret that obligation in the context of those oaths.
The vulnerability here would arise if the passage of the Bill was deemed to represent a precedent by which to justify far more draconian changes than could be permitted to the established laws of this land under the Bill of Rights and to the detriment of the rights and liberties of the subject. By relying on such a precedent, in theory it is possible to introduce arbitrary power with a Bill of no greater apparent significance than this, to reintroduce the use of judicial torture or repeal the principle of “no taxation without representation”. These are, clearly, highly undesirable outcomes.
If this Bill is enacted with the addition of the amendment that I have proposed, from the next accession and beyond we would have the satisfaction—albeit that there may be a vulnerability prior to that accession —of knowing that the fundamental rights and liberties of the subjects have been restored absolutely. As such, I commend my measure as an opportunity that we ought to take. It is like a deep third man, in cricketing terms, by sweeping up all the bits that might otherwise trickle through. I commend my measure as an opportunity that we ought to take to hope, and later ensure, that no precedent might arise from this to the detriment of the rights and liberties of the subject. If we pass the Bill we risk setting a precedent with the potential for the worst possible outcome in the fullness of time, not knowing what future Governments and future authorities might wish to be brought to bear.
Lord Wallace of Tankerness
My Lords, I certainly understand that my noble friend Lord James of Blackheath has had serious, profound concerns about this Bill which he expressed even before Second Reading. I recognise the persistence and diligence with which he has continued to raise these issues. I am grateful for his kind comments and I think he would recognise that the comments and concerns he has raised have been given proper consideration.
It appears to me that my noble friend is concerned that, in allowing an heir to the Throne to marry a Catholic, this Bill would contravene the promises that each sovereign is required to make to maintain the established Protestant religion and in some way subvert the Bill of Rights or the Act of Settlement. It will come as no surprise to my noble friend that I disagree with his view, as I have made clear on a number of occasions in your Lordships’ House. Again, I want to make it quite clear that we are not amending the provisions of the Bill of Rights or the Act of Settlement which say that the sovereign has to be a Protestant.
My noble friend Lord Eden of Winton put his finger on the point. Indeed, I wrote at some length in my letter to my noble friend Lord James about the sovereignty of Parliament in the case of Jackson v Attorney-General in which the House of Lords considered the Parliament Act 1911. The late Lord Bingham said:
“The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament … Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished”.
With a former Lord Advocate, the noble and learned Lord, Lord Hardie, present, I had better say that there has been some question about that in some respects in Scotland following the dicta of Lord President Cooper in MacCormick v Lord Advocate. Nevertheless, Lord Bingham expressed that view very clearly in the Jackson case.
Given that the prohibition on the sovereign being a Catholic remains, we do not believe that there is any conflict between the Bill and the Accession Declaration or the promise made by the sovereign to preserve the Presbyterian Church in Scotland. I do not think I can really elaborate on it. My noble friend and I are going to have to agree to disagree because we believe that there is nothing in this Bill which subverts the Bill of Rights, the Act of Settlement or the oath which Her Majesty made on her accession. In the circumstances, I invite my noble friend to withdraw his amendment.
Lord James of Blackheath
I thank the Minister for his reply. I reassure him immediately that my concern here is not about the religion of the monarch. I gave up religion at the age of 19 when I was studying for ordination to the Church of England. I discovered that while the Catholics burnt people because they thought it released the soul to go to heaven quicker in order to plead for mercy, the Protestant church was allowing hanging, drawing and quartering on the forecourt of St Paul’s Cathedral—where we all walked last week—to be able to discharge the secular crime of treason under the guise of being a religious crime against the church. At that point my faith crumbled very rapidly and was never restored.
My concern here is not primarily those factors. It is that we are putting Her Majesty in a position where we are asking her to breach the coronation oath, which I would not do under any circumstances. I have provided a suggestion as to how we may circumvent that by borrowing an initiative of the Duke of Wellington from 120 years ago, but none the less we need to be sure that it would work and that is my concern. If the noble Lord will answer that, I will be happy to withdraw my amendment.
Succession to the Crown Bill
Lord James of Blackheath Excerpts(11 years, 1 month ago)
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“( ) An order made under subsection (2) shall not have authority in Scotland unless a draft has previously been approved by the Scottish Parliament.”
Lord James of Blackheath
My Lords, I came to Second Reading with one major concern in my mind. By Committee I had two and now I have three. Perhaps I should stop coming to these debates because my list will only grow. It leads me to wonder whether we are here with unreasonable haste on something that should not have great haste: namely, an important and challenging constitutional issue.
We all know that there will be a happy event around midsummer this year. I hope that we are not being overinfluenced by that, because it is not the gender of the unborn baby that should guide us at this moment but the continuity of the lady on the Throne, whom we should not seek to embarrass or put in any predicament that could be adverse to the continuity into the future of her glorious 60 years. It is possible that in time, having made a full recovery now, she will exceed her mother’s years—and may she reign for all of those years, too. In that case, what is the haste that we are looking at? We have had many instances in our history when the succession has fallen on an individual who has been born long before they came to the throne. Whatever happens in June or July this year, we do not need to make any commitment.
By the way, I can assure the House emphatically that the Duchess of Cambridge did not intend to use the “d” word and say that she was going to have a daughter. It is a very important point. In my earlier career I was the recipient of a great deal of training in lip-reading. It is one of the few things at which I can claim to be an expert, so I ask noble Lords not to mock me. I have watched the five-second clip of the incident many times. The Duchess never had her tongue out of the roof of her mouth. That enabled her to say the “d” very emphatically. From there she could have gone either to an “au” sound for “daughter”, a “u” for “duke”—but she would not use twee language and say, “I will give it to my duke”—or to an “o” sound to say that she would give it to her dog. She brought herself up on the spot because she realised how hurtful that would be to the kindly donor of the little dog. She had to change direction, and in order to avoid one brick she stubbed her toe on another. Unless the Deputy Prime Minister has plans to so overhaul our constitution that we have a dog on the throne, I cannot see that there is anything here about which we should be concerned. The more we look at constitutional issues, the more it appears that Mr Clegg may have misidentified them and that he is in fact Mr Baldrick Clegg, creator of some very cunning plans.
As I said, I have three major concerns. The first is the one that I began with: namely, that we are putting the Crown in an impossible position. We expect to receive a delegation of the prerogative of consent, which I do not believe the Crown is entitled to delegate to us. Secondly, because of those factors, we should look very closely at the issues of entrenchment and the laws that are being changed. We have heard that one Parliament cannot bind another, but this occurs frequently and in this case it is emphatically there. The third factor is that without any doubt the Bill, in particular Clause 4, virtually wipes out the Act of Settlement with Scotland and renders unnecessary a referendum. If this Bill were passed, Scotland would float off towards the Arctic and a very cold economic future. We should be very concerned not to create these appalling outcomes.
The matter of entrenchment is something that we need to think about very hard. When my noble friend Lord Marks and I had our dialogue in the debate at Second Reading, we were misleading each other and were both under a very big misapprehension. We were talking about alterations to the declaration of rights. In the half hour the Minister was kind enough to give me last week to discuss this, he and his team made the same mistake. The declaration of rights is not the issue here; it is the Bill of Rights. We are confusing them because of the interregnum. There was no monarch at the time. Therefore, there was no way that there could be a Bill leading to an Act, as happens at the moment. There was a declaration of the complaints of the citizens of this country, which was answered by a Bill that eventually became an Act. The Bill of Rights that was presented to William and Mary repeated word for word the declaration of rights. However, it ended at the word “accordingly”, whereupon Joe Browne, the Clerk of the Parliaments, signed his name. A space was left for William to sign, but in fact he signed a separate piece of vellum that was stitched into the Bill. This was perhaps the first instance in England of a political stitch-up.
The document sets out the suggested oaths that could be sworn by future monarchs. However, they are only suggestions and not part of the Bill. As such, my noble friend Lord Marks was wrong, and the Minister remains wrong, because the alterations to the oaths that occurred in the past do not constitute a precedent by which one can alter the Bill; one cannot. I will read two phrases that sum up how far the entrenchment goes. First, the two Houses of Parliament should,
“with royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this Kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly … to the same in all times to come”.
There is not much wiggle room there.
Towards the end, the document states that the provisions are,
“enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever”.
That is what we are asking to pass back to Her Majesty, with the request that she should forgo her coronation oath by altering something that was put into the laws of this land for ever and is, I submit, incapable of being changed. I return to my objection on Second Reading. We do not have the authority to accept delegation of the prerogative to this House, and any noble Lord who voted for it would be in breach of their oath on joining your Lordships’ House. I have raised this with many Members on these Benches. No one will give me an answer. They all say: “I’m sure it’s all right but I don’t know why”. I want to know why. I cannot vote for this and I suggest that no noble Lord should vote for it unless we are assured that we are not forcing Her Majesty into an impossible predicament by so doing.
The situation is very straightforward. We have a constitutional monarchy that is committed, first, by its commitment to the oaths of proclamation. There is a very different wording for England and for Scotland, whereby it is much tougher for Scotland. Then we have the coronation oaths, which bind the Crown to abide by what is in effect the entrenched law of the land, which we are now proposing significantly to change. The legal bounds of the Crown’s authority of governance are breached if the Crown’s constitutional limitation is exceeded. This defines the point at which a constitutionally limited monarchy has a duty arising from the commands of the law and constitution to refuse assent to a measure. If a measure is demonstrated to require removal of the constitutional law defining the duty to enforce, it is a breach of that duty, and constitutionally must be disallowed. We in this House can have no authority to pass a measure that collides headlong with the existing rules of our constitution. The limitations of the Crown would need to be breached to remove those duties, and this is an impossible and intolerable situation to place the Crown within.
In allowing the Bill, we would violate principles emanating from these enactments, which limit the Crown and the constraints imposed by the oath of office. At that moment, we would place the Crown in breach of its solemn and sworn duty, a duty undertaken as a reign-long obligation by Her Majesty. We cannot do that. Furthermore, we can hold no authority whatever to seek to do it.
I want to hear the answers to these points. I am very happy at what this Bill tries to achieve and would oppose none of it, but I am wholly opposed to the process by which we seek to do it. The advice that we have had on our legal position is undercooked, and I want to know a great deal more.
Lord Wallace of Tankerness
My Lords, I thank my noble friend for setting out his concerns. I was grateful to him for taking the time to elaborate on the rationale for his concerns at a meeting to which he referred, which we had last week. As I understand it, he has two particular concerns. The first relates to the coronation oath, which the sovereign is required to make to maintain the established Protestant religion. He is concerned that there might in this Bill be something inconsistent with the coronation oath that Her Majesty swore. I disagree and I make it clear that we are not amending the provisions of the Bill of Rights or the Act of Settlement, which say that the sovereign has to be a Protestant. That was debated under an earlier amendment. One could conceivably argue that as a result of the Bill more people might come out of the line of succession, because one of their parents was a Catholic and the parents intended to bring up the child as a Catholic, but that is simply not the same thing. Given that the prohibition on the sovereign being a Catholic remains, there is no conflict between the Bill and the coronation and accession declaration oaths. Therefore, I believe that my noble friend’s opening premise is wrong.
I also disagree with his assertion that the Bill is inconsistent with the oath that the sovereign has to swear with regard to maintaining Presbyterian church government in Scotland. I declare an interest as an elder of the Church of Scotland. As a young student during Her Majesty’s Silver Jubilee Year in 1977, I sat in the gallery of the General Assembly when Her Majesty opened it and reaffirmed her coronation oath with regard to the Church of Scotland. Again, nothing in this Bill in any way conflicts with the oath that Her Majesty took on her accession, which she has subsequently reaffirmed.
My noble friend also made reference to Scotland, and his amendments very much relate to the position of Scotland. He seemed to imply that the Bill would somehow lead to the break-up of the union. In our view there is nothing in this Bill that conflicts with requirements set out in the Act of Union. Given that my noble friend’s amendments focus on the territorial extent of the Bill, it would be helpful to consider that matter as well. The Crowns of England and Wales, Scotland and Northern Ireland are united by the various Acts of Union. Any changes that the United Kingdom Parliament makes to the laws of succession will apply automatically across our United Kingdom. The succession to the Crown is a reserved matter, as is clearly stated in the Scotland Act 1998, and the Scottish Parliament would have no competence to pass a resolution in relation to succession. At least, it would have no legal effect, as proposed in my noble friend’s amendment. However, the devolved Administrations were provided with drafts of the Bill ahead of introduction. Similarly, the Bill applies not only to the UK but to the Crown dependencies and overseas territories by necessary implication, following the precedent set by other Acts concerning the sovereign. Again, Crown dependencies and overseas territories were also consulted.
I seek to reassure my noble friend, who I know is deeply concerned about these matters, that there is nothing inconsistent with the provisions in the Bill before your Lordships’ House and the coronation oaths sworn by Her Majesty. I hope I can allay his concerns and persuade him that this is a perfectly proper matter that we deal with in this Bill.
Lord James of Blackheath
I thank the noble and learned Lord for that response. The first of my two amendments is, I agree, improper because it anticipates a resolution that the Scottish Government cannot pass. The second amendment was intended to provide an alternative and a way around the problem if it was still seen to be a problem. In that context, I wonder whether another meeting between myself and the noble and learned Lord might be helpful.
The other issue missing from all this at the moment is any reference to the regency, which was created first of all in 1936 but was not actually used. One wonders whether, if there is a problem, one could wait for an interregnum and then have a regency for long enough to pass a Bill. There would not then be a problem. I would like to discuss that with the noble and learned Lord at another time. Otherwise, I am happy at this moment to withdraw my amendment. The second amendment was intended only to provide an easier route than the first.
Succession to the Crown Bill
Lord James of Blackheath Excerpts(11 years, 2 months ago)
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Lord James of Blackheath
My Lords, my noble friend Lord Deben has been singing from the same song sheet as my noble friend Lord Trefgarne. In effect, he is saying that this is too complicated to rush and we need more time on much more detail. We are on only the third amendment and already we are looking at a series of complexities which have not so far been considered. This Bill is riddled with the potential for unintended consequences of the type we are talking about. We need much more thought and much more time. In the two weeks since Second Reading I have had a great many communications from your Lordships, mostly disagreeing with something I said on that occasion. I have a shortlist of what the principle points are and they are not really addressed in the process today.
First is the point that no Parliament may bind its successors. One of my contentions is that the deed of rights does effectively bind its successors, as does the Act of Settlement. The question of entrenchment was not considered at all, yet it is fundamental to that issue. There is the issue of the sovereignty of Parliament and of the Crown. The Crown in Parliament is a special factor and an expression which needs to be redefined in that context. There is also the question of the limitations that the Bill seeks to avoid and thus whether the constraints which normally apply do not apply to the limitations of power. Amazingly, one of your Lordships accused me of committing “desuetude”. I do not have a clue what desuetude is, but I assure you that it has nothing to do with what has been going on in the Liberal Democrat party.
If the tabloids think they have a new story, I wish to make the point that this Tory Peer has never done desuetude in his life as far as he is aware and if he did, it was an accident and he was lured into it unawares. I found that desuetude is not recognised under British law and does not apply, so we can kick it into touch. On all the other issues, particularly the right of this House to accept the delegation of the royal prerogative, I stand firmly in my belief that we do not have the right to act accordingly and we have been ill advised and inadequately advised about our proper role and authority.
We do not have time available for all these great issues. My concern is that although we could go into them individually now or at some other time, at the rate we can process with this, we do not have enough days or months available to consider this important Bill. I am not opposed to it, but I will leave your Lordships with two thoughts. There are two awful, unintended consequences which we have not thought of. First, if we pass this Bill we have effectively done away with the need for a Scottish referendum because we have driven a coach and horses through the 1707 Act of Union. It no longer exists because you cannot pass this Bill compatibly with the separate proclamation and coronation oaths required by the 1707 Act.
Secondly—and I hate to say this—I fear that if we pass this Bill we have in effect created what will amount to the accidental and unintended abdication Bill. I cannot see how this Bill can be given Royal Assent, and without it, it cannot pass. In those circumstances, the only way it could ever be passed is during an interregnum, which can happen only with the death of a monarch or an abdication. There would then have to be an interval of several days before the proclamation of the new monarch in which this Bill could be passed. I cannot see that it could be done in any other way. We are in an area of total ignorance and floundering. We need more time and more guidance.
Lord Lang of Monkton
My Lords, I support the amendment of the noble Lord, Lord Northbrook. In particular I endorse everything said by my noble friends Lord Lexden and Lord Mancroft. One point to make by way of modest qualification is that I understand there are a number of other dukedoms and titles held by the Prince of Wales which might also need to be changed and modified to bring them into the needs of this Bill. As long as this does not delay action on the Duchy of Cornwall, I hope that the Duchy of Lancaster and any other such duchies should be looked at quickly as well. It would be better to have one composite solution to the problem rather than a piecemeal one.
Lord Berkeley
My Lords, I have a question for the noble Lord, Lord James. As far as I recall, he spoke at Second Reading about the House committing collective treason. Why has he not put down some amendments in Committee to take these arguments forward, so we do not all commit treason?
Lord James of Blackheath
My Lords, I sought guidance on this. I did not get adequate guidance to enable me to formulate a wording which I could see was appropriate. I wholly agree that it is required. Given time it can be done, but we do not have time.
Baroness Hayter of Kentish Town
My Lords, as the noble Lord, Lord Deben, says, the issue is a sensible one. I then break with the tradition of everyone else who has spoken by saying it may be a sensible issue, but the issue is about property, the ownership of an estate, about title—as reflected in the words of the noble Lord, Lord Lang—or about a business, in the words of the noble and learned Lord, Lord Lloyd of Berwick. While it may be an important issue, it is not about the constitution of this country and therefore not really appropriate to what is an important and, in our view, welcome change in our laws of succession. That is what this Bill is really about.
It is quite possible that the founding charter governing the Duchy of Cornwall may need changing—I had not realised that it was in 1337. Interestingly, 600 years after that, from 1937 to 1952, the title fell into abeyance. Our present monarch seems to have done a fantastic job without the benefit of being the Duke of Cornwall in that period, so I am not certain that this needs to be done. If it does, it should be done by another way and not in this Bill, which is about our rules of succession. I hope that this is what your Lordships’ House will address itself to.
Succession to the Crown Bill
Lord James of Blackheath Excerpts(11 years, 2 months ago)
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Lord Fellowes
My Lords, I, too, much regret that I was unavoidably prevented from attending Second Reading but I hope that I may none the less speak briefly to this amendment.
First, I support the Bill wholeheartedly. Furthermore, I understand and agree with the motives behind the amendment. Both the Bill and the amendment are timely and necessary. I fear, however, that I cannot support the amendment as drafted. More clarity and public commitment from the Roman Catholic Church on the subject of the upbringing of an heir to the Throne would indeed be most welcome, but I think that that desired outcome would be more likely to be achieved by quiet negotiation than by ultimatum. The amendment has a ring of ultimatum about it, at least to me. For that reason I cannot give it my support. None the less, I hope that we can find a satisfactory form of words that carries perhaps less threat and more promise, both to the Church of England and the Roman Catholic Church.
Lord James of Blackheath
The noble Lords, Lord Forsyth and Lord Deben, have both got very close to being the first Peers in this debate to mention that here we are addressing the concern of whether we can alter the Bill of Rights. Sooner or later, that issue will have to be debated in much more detail than allowed for by today’s agenda.
I have one technical question for the noble Lord, Lord Cormack: does he believe that the papacy is able to commit its successors any more than, as he no doubt believes, one Parliament can commit another?
Lord Stevenson of Balmacara
My Lords, this has been a very good debate and, has just been mentioned, will inform a number of the amendments that we are due to discuss. Maybe we will be able to move a little faster as a result.
The amendment, in the names of the noble Lords, Lord Freeman and Lord Cormack, makes abolition of the Catholic marriage ban conditional on an agreement with the Vatican that children of such marriages should be brought up as Anglicans. As for preserving the Protestant succession, the amendment is unnecessary because under the present rules no Catholic will be able to succeed. As we have heard, it seems highly unlikely that the Vatican is in any position to make children of mixed marriages be brought up as Anglicans, should we require it to. In any case, we understand that this is a matter already delegated to the Catholic hierarchy in the UK.
However, as several noble Lords have suggested, this issue raises the question of whether any religious test should be preserved as one of the rules for succession. As we will hear from the noble and learned Lord, that will perhaps be a matter for another time, but I will come back to it in later amendments.
Succession to the Crown Bill
Lord James of Blackheath Excerpts(11 years, 2 months ago)
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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—
Lord Lang of Monkton
I am grateful to my noble friend for giving way. I think he is mistaken. I think he is building a house of cards. Even the members of the convention on the Declaration of Rights did not believe that it was legally binding. That is why they brought forward in 1689 the Crown and Parliament Recognition Act. That shows that Parliament did not consider itself bound by the Bill of Rights, which in the first instance had enshrined the Declaration of Rights. It placed it on an unimpeachable legal footing. There can be no doubt that all the matters that were covered by the Declaration of Rights were subsequently properly enshrined first in the Bill of Rights and then in the Crown and Parliament Recognition Act 1689.
Lord James of Blackheath
I am grateful for all helpful contributions.
The Bill of Rights was read to William and Mary by Mr Joe Browne, who was then the Clerk of the Parliaments, or rather he should have been reading it to them but he had sent his footman down with a sicky in the morning to say that he was feeling too unwell and could not turn up. He subsequently said that it was because he felt an irritation at the back of his neck where an axe would come. Similarly, the Archbishop of Canterbury declined to come, and proceedings were handled by the Bishop of London.
On the day in question, when it had been read through, William stood up and said:
“This is certainly the greatest proof of trust that you have in us that can be given which is the thing that makest us value it the more and we thankfully accept what you have offered”.
At that point, the Marquess of Halifax knelt down and gave the crown to him. Thereafter, the sackbuts and cornets of Parliament went out with armed guards to take the Declaration of Rights around the city, where the proclamation was read in four places and the next day was announced as a public holiday.
It seems that we are seriously confused as to which bit of the past constitutional history of this country we are trying to alter and what our rights are in so doing. None of the constitutional papers or others that have been given to us even begins to approach definitive advice on that.
I return to my initial point. I believe that we are not doing as we are required to do, which is to support the Crown in the decisions that they have to make, if we pass something that may still be a breach of that oath that was signed by Her Majesty on her proclamation day back in 1962.
Lord James of Blackheath
1952, sorry. We have a very serious question now as to the legitimacy of the action that we are taking in this House. I am sorry if that causes disruption and dispute but I really believe that we have a problem here that has not been adequately addressed. It is not reasonable that we should not have better, stricter and further guidance from the Privy Council, the Clerk of the Parliaments and the Constitution Committee to give us a very clear way forward.
Lord Marks of Henley-on-Thames
My Lords, may I say how much I welcome this Bill on behalf of these Benches and on my own behalf? Our present law, whereby an elder daughter is displaced as heir to the Throne by the birth of her younger brother is an affront to women throughout this nation and the Commonwealth. Of itself, it damages the identification between the monarchy and the people, particularly women, as the noble Baroness, Lady Hayter, movingly pointed out. I am delighted that we are to change it. It is also a great tribute to the Commonwealth as an institution that we are legislating for this change in a co-ordinated way in all 16 of Her Majesty’s realms.
Perhaps I may address for a moment the important constitutional point made by the noble Lord, Lord James of Blackheath, who has explained why he believes that this Bill is a breach of Her Majesty’s coronation oath and therefore, for us, a breach of our oaths of allegiance. As I understand his argument, he believes that because the Declaration of Rights in 1688 obliges the monarch to reject Roman Catholicism, it follows that she would be in breach of her oath by assenting to this Bill. In my view, the noble Lord’s argument gives insufficient weight to the doctrine of the sovereignty of Parliament and to the general rule that Parliament cannot bind its successors. The Declaration of Rights, made on the arrival of Prince William and Princess Mary in the kingdom, did not of itself have the force of law, as has been pointed out. It was enacted as an Act of Parliament as the Bill of Rights in 1689 and has been an important part of our constitutional settlement ever since. It is true that it was expressed as intended to remain the law of this realm for ever. However, the doctrine that Parliament cannot bind its successors was already well established by the late 17th century. In fact, the Bill of Rights has already been amended on a number of occasions. In the context of this Bill, the most notable amendment was made by the Act of Settlement 1700, just a decade or so after the Bill of Rights—
Lord James of Blackheath
My Lords, I had anticipated the argument concerning the alteration of the Declaration of Rights, but I think that the only occasion on which it has ever actually been amended was in 1825 when it was found that there were insufficient jurors available to fulfil the obligation to run the courts. On that occasion the threshold for serving on a jury was reduced to include £10 rental holders. Nothing else has been done.
Lord Marks of Henley-on-Thames
My Lords, I am afraid that I disagree with the noble Lord because the Act of Settlement expressly changed the line of succession by introducing the Electress of Hanover, who was a granddaughter of James I and the mother of George I, into the succession just 10 years or so after the Bill of Rights was passed. A further amendment to the Bill of Rights was unwittingly mentioned by the noble Lord in the form of the Accession Declaration Act 1910 which brought in the very declaration he has read out to noble Lords. It changed the coronation oath which had been prescribed by the Bill of Rights. The present declaration, which he read out, reflects the present position: the sovereign promises to uphold only the enactments that procure the Protestant succession to the Throne. There is nothing inconsistent in this Bill with that declaration, and I have absolutely no doubt that this Parliament is as entitled to enact this Bill now as was the Parliament convened in 1689 to enact the Bill of Rights.
Perhaps I may mention the arrangements made for succession in the other royal houses of Europe. The position is as follows. Belgium, Denmark, Luxembourg, Norway, Sweden and the Netherlands all adhere to equal primogeniture, with no male preference. Indeed, in Sweden the heiress apparent is a woman, Crown Princess Victoria, who will become Queen of Sweden in due course. She was born in 1977 as the eldest child of King Carl Gustav. Her younger brother Carl was born in 1979, and Princess Victoria only became heiress apparent again in 1980 as the result of a similar change in the law to that which we are enacting now. I suggest that this demonstrates that it is plainly preferable to make such a change as this in advance, if we can.
Only Monaco and Spain have male-preference primogeniture as we do at present, although in Monaco the next in line is actually a woman, Prince Albert’s elder sister, because Prince Albert has, as yet, no legitimate children. Spain also plans to change its rules of succession in the same way as we are now. This will entail a constitutional amendment which needs to be passed by both Spanish Houses of Parliament with a two-thirds majority in each House, and then it would be put to a referendum. This has not happened yet, perhaps owing to the requirement in Spain that when a major constitutional change is passed, Parliament must be dissolved and new elections called. However, the proposed change in the law enjoys widespread public support in Spain, notwithstanding the difficulty caused by the fact that Juan Carlos’s two eldest children are women, and it is their younger brother who is currently his heir.
Without getting too technical, Liechtenstein has an old system of succession called agnatic primogeniture which completely excludes women from the order of succession. This was specifically criticised by a United Nations committee looking at gender equality in 2007. Luxembourg used the same system until June 2011, when equal primogeniture was introduced. As here, this change made no difference to the immediate order of succession, so Luxembourg is a good example of a country which has reformed its rules even more significantly than we are doing now. All this goes to show that the present succession arrangements for our monarchy and our Commonwealth are well behind the times.
I also welcome the end of the ban on the monarch and his or her heirs to the Throne marrying Roman Catholics. One can see that the monarch’s position as Supreme Governor of the Church of England suggests, even if it does not dictate, certainly for the time being, that he or she must be a Protestant. However, there can be no justification for any religious discrimination going beyond that requirement, and the Bill rightly gives effect to that principle. Clearly, marriage to a Catholic would present a monarch or an heir to the Throne with a stark choice, a difficulty even, in respect of the children. However, my view is that the approach of my noble friend Lord Lang of Monkton sacrifices the principles of tolerance and understanding that are enshrined in this Bill on the rather hard altar of certainty and stability, as he put it. For myself, I prefer the approach of the noble Lords, Lord Luce and Lord Janvrin, which I believe may in time lead to an accommodation being reached on this issue. I have to say that the intervention of my noble friend Lady Falkner on my noble friend Lord Lexden raised an interesting point. She pointed out that there is no bar to the monarch being married to a Muslim and that there are similar rules for Muslims on the upbringing of the children of such a marriage as there are for marriages between Protestants and Catholics. Exactly the same issues would arise with such a marriage as would arise with a marriage to a Catholic. That simply highlights the anomalies of the present rules, the fact that they are rooted in history, and the need for these changes to help our country to continue to evolve in a tolerant and non-discriminatory way.
Before I finish, perhaps I may also say what a pleasure it is for those of us who value the continuation of this United Kingdom to see such a distinguished Scottish law officer as my noble and learned friend the Lord Advocate steering this important constitutional measure through your Lordships’ House.