Equality (Titles) Bill [HL]

Lord Jopling Excerpts

Friday 6th December 2013 Lords Chamber

[The Earl of Caithness]

No, my Lords, because I am not my noble friend Lord Trefgarne, so I could not include it and deliberately omitted it.

I must first apologise to the House and, in particular, to my noble friend Lord Lucas for not being able to take part at Second Reading. I wish that I had been able to be here. I will declare my interest. I do not have any settled estates but I have an elder daughter and a younger son who could be affected by the Bill.

A title is a very complicated document. It is personal property and I therefore agree very much with what my noble friend Lord Wallace of Saltaire said at the end of Second Reading: namely, that this is not a matter for Parliament. It is a matter for the Crown. However, this is an extremely useful debate in order to guide advice to Her Majesty, because in my view this is a logical step forward. The situation that we are in now is anomalous, so in principle I have total support for what my noble friend is aiming to do. All that I would say is that it is horrendously complicated.

I declare my interest as not being an expert in this field. From what I read of Second Reading, I thank the noble Baroness, Lady Thornton, and the Labour Party for their remarks. All my life as a hereditary Peer I have been persecuted and vilified by the Labour Party, but at Second Reading they did a wonderful U-turn and said, “We support hereditary peerages; we’re going to extend them to females so that the titles will keep on for many generations”. I take that point.

Let us look at my own title. The first official document for the Earl of Caithness goes back to 1334. There were Earls of Caithness before that, but 1334 is taken as the first creation. Those noble Lords who are aficionados of Shakespeare will know that the Earl of Caithness appears in the play “Macbeth”—and Macbeth got killed or died in 1057. That Earl of Caithness was Thorfinn, more of a Viking mormær, or Earl, than a Scottish one—it was under Norse law. The person who got the title in 1334, Maol Íosa V, also Earl of Strathearn, was the first creation. He forfeited his titles through treason and the title died out, so that was the end of the earldom of Caithness.

However, because it is the prerogative of the Crown, there was a second grant a few years later, in 1375, to David Stewart, a younger son of Robert II of Scotland, who left his title to his heiress, Euphemia—so the Scots were well ahead in showing that females could inherit a title. That creation died out, too; this is the wonderful thing about having hereditary Peers. There is another gap and then we come to the third creation, Sir George Crichton in 1452—but he surrendered the title in the same year, so the Earl of Caithness came to an end yet again. The fourth creation comes down to me. As one can see, one was able to perpetuate the title but with different families, and now the Labour Party is saying that we can extend that. I feel that after 65 years of persecution, today is a very happy day.

I said at the beginning that the issue was unusually complicated. There will be all sorts of legal problems to be sorted out; in fact, the Bill will become a lawyer’s paradise. For some titles, though not mine, a private Act of Parliament will be necessary in order to effect the Bill. The settlement of the Shrewsbury family had to be done by a private Act of Parliament, for example, so in order to break that, my noble friend Lord Shrewsbury would have to have a further private Act of Parliament. That is just one of the many areas that the lawyers are going to be rubbing their hands over.

[Lord Jopling (Con)]

If we are to do the things that my noble friend Lord Lucas is trying to do, it will mean primary legislation. Dealing with the situation of our colleague, my noble friend Lord Shrewsbury, could be fitted into the same Bill, so I do not think that that constitutes a particular problem.

[The Earl of Caithness]

Indeed, my Lords—if the end result is done by an Act of Parliament. Following the logic of my noble friend Lord Wallace, though, if this is a matter that the Crown decides because our titles are granted by the Monarch, it would not be an Act of Parliament. Therein lies one of the many complications.

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[Lord Jopling]

I think we have to understand that the Bill as it stands does not have a hope in hell of getting on to the statute book. I say that as one who, down at the other end of the building, killed more Bills than most people you will ever meet. It would need fresh legislation. We are embarked on a discussion of the issue, but those of us who are realists realise that the Bill will not go through.

[Lord Trefgarne]

If a Bill were to come forward simply to deal with my noble friend Lord Shrewsbury—or to deal among other things with my noble friend Lord Shrewsbury—it would be a hybrid Bill. Does my noble friend recall the difficulties of getting hybrid—

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[Lord Jopling]

My Lords, I must apologise to the House that I was not able to take part at Second Reading. I was keen to be here but it was impossible. I warmly support the general purpose of the Bill, principally because I feel very strongly that the law which covers the Crown should have close parallel with those laws which cover the peerage. Now that the eldest female child of the Crown can inherit the Crown, I believe that we should move in the same way so far as the peerage is concerned. That is why I congratulate my noble friend Lord Lucas on aiming to do this. As he told us a few minutes ago, I approach this issue purely because of gender equality rather than because of all these quirks of the law about titles in England, Scotland, Ireland and Wales. Those are mysteries to me; I am concerned with the gender equality aspects.

I said in an earlier intervention that we have to accept—I hope that my noble friend Lord Lucas and everybody else accepts this—that the chances of this Bill coming into law are nil. As the House may know, I had experience in another place as a party manager and a business manager. There is no way that the Bill will move into law and therefore, as the noble Lord, Lord Wallace, quite correctly said earlier, we ought to regard this as a discussion on this matter rather than a detailed way of passing it into law.

[Lord Trefgarne]

My noble friend referred to his time as a business manager in the other place. As I recall, he came to be known as the lord high executioner. Is he proud of that?

[Lord Jopling]

I am really very proud of having blocked a lot of particularly senseless Bills which came before the other House. I am certainly very proud of that aspect of being an executioner.

I hope that when the noble Lord, Lord Wallace, has recovered from this discussion, he will make representations to the Government that we ought to have a government Bill in the very near future dealing with this whole aspect of the law on titles, so that gender equality can be established.

Having congratulated my noble friend Lord Lucas, I am bound to say that I am extremely unhappy that there should be a discretionary element in the way that an eldest female child can inherit a peerage. When the eldest child is a girl, I believe that her succession to a peerage should be automatic. The Bill as it stands makes it discretionary. Given everything that that implies about attempts to get agreement within a family, I cannot think of a surer way of causing disagreement and resentment within families than by making it discretionary.

I fully support Amendment 10, moved by the noble Earl, Lord Clancarty. At the same time, I want to make some remarks about Amendment 34 in my name, which is taken with this general grouping. I well recognise that in some families arrangements have already been made, and expectations already exist, about the inheritance of a title. I have no interests to declare—my title makes me a day-boy, if I may call it that, in your Lordships’ House—but it would be very unfortunate if we were to pass laws about the inheritance of titles that took away from living people expectations that they may have and led to the aborting of arrangements that will have been made and that will be almost impossible to take back.

I believe that the Bill should be effected only for children born after the Bill becomes an Act of Parliament. By doing that, we would not take away any expectation of succession or arrangements that had been made for living people, and it would mean that from the day when the Bill became law it applied to children born after that date. I hope that the House will accept that amendment, and I am most pleased to be able to support the noble Earl, Lord Clancarty, in his efforts to achieve a much fairer method of gender equality.

[Lord Trefgarne]

My Lords, during the course of our discussion in this Committee stage so far, I have made a number of light-hearted interventions that I dare say have irritated your Lordships, and I apologise for that. May I now make a serious intervention and give a serious response to the Bill proposed by my noble friend Lord Lucas? Like my noble friends Lord Jopling and Lord Caithness, I was not able to be here at Second Reading although I was aware of what was happening. Like my noble friend, I read the Hansard and wished that I had been here.

I very much support the principle that the succession of hereditary peerages should go to the eldest child, not the eldest son, and I would support a change in the law that achieved that. Like my noble friend Lord Jopling, though, I also believe that it is something that cannot be arranged to take place immediately because it would upset all sorts of family arrangements of a very complicated and legal kind, which would be highly undesirable. A number of noble Lords—indeed, my hereditary colleagues—have spoken to me about that, although obviously I will not mention their names. They have family trusts that have been arranged to take account of the fact that their second child, for example, is going to succeed to the peerage. Indeed, I do not mind saying that in my own father’s will he made special provision for the peerage and made it clear that certain things in his estate were to go to the holder of it. As it happened, his eldest son was me so that was fine.

I support the principles of what the Bill proposes. However, I fear there are a number of real difficulties, which have been suggested. I genuinely fear that the Bill is hybrid in one way or another, and I regret that very much. Hybrid Bills cause all sorts of difficulties; my noble friend Lord Jopling will remember that only too well from the distant past. Indeed, when the House of Lords Act 1999 came before Parliament all those years ago, it was thought at some point to be hybrid, although we did not in fact press that argument—other considerations were thought to be more relevant. Whether the amendments now being considered improve matters is a matter of open debate, and I look forward to hearing the further views of noble Lords.

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Moved by

[Lord Jopling]

14: After Clause 1, insert the following new Clause—
“Definition of female heir
(1) For the purposes of this Act “female heir” includes a daughter conceived through the use of the gametes of both the incumbent and his wife but carried by a surrogate mother.
(2) The Human Fertilisation and Embryology Act 2008 is amended as follows.
(3) After section 48(7) (effect of sections 33 to 47) insert—
“(7A) A daughter conceived through the use of the gametes of both an incumbent, to any dignity or title of honour, and his wife will be regarded as a legitimate female heir to the dignity or title of honour regardless of whether the pregnancy was carried by a surrogate mother or the wife.””

[Lord Jopling]

My Lords, when we were legislating earlier in the year to allow the eldest female child of the Crown to succeed to the Crown, I raised a case which I have followed over a good many years now; it was a constituency case when I was a Member of the other House. I raised the case of a child born of a surrogate mother but with the gametes of the Monarch and the Queen—if that is where the succession passed—and I asked whether, over the succession to the Crown issue, that child could succeed. The noble and learned Lord, Lord Wallace of Tankerness, who was speaking for the Government, was not able to answer the question there and then, but he kindly wrote to me again back in March of this year. I wish to quote part of his letter. He said that,

“the child of a surrogate mother cannot succeed to a peerage and the Government is of the view that if succession to the peerage is excluded then a fortiori succession to the Crown must be excluded as well, even though the Crown is not expressly mentioned”.

He went on to say:

“We believe that the law is currently sufficiently clear in this area, but should the issue arise in the future, and the Government of the day disagree, it could, of course, amend the legislation in line with the medical practice of the time. Given the pace of medical advancement in this area this seems eminently sensible”.

My Amendment 14 seeks to allow the children of a Peer and his wife, or rather the eldest child, to succeed to the parent’s title when it is born of a surrogate mother, and where it can be clearly shown that the child is the product of the gametes of that Peer and his wife. Until recently, of course, this would have been a very dangerous amendment to the law and would not have been sensible. It would have been open to what I would describe as “monkey business” and one could have trod on very dangerous ground. However, we now have DNA testing and it can be established with virtual certainty that a child is really the offspring of those who assert that it is. Obviously, a situation of this sort is much more likely to crop up in the peerage than over succession to the Crown because far more people are involved in the peerage. I see no reason whatever why a child who has exactly the same genetic make-up as his or her parents, albeit having been born of a surrogate mother, should not have exactly the same rights as a child born to the genetic mother. I believe that this is fair. It is obviously a novel concept. I wish that we could have introduced this in the Crown Bill, but I am afraid that I thought of it only at the very last moment when I spoke on that Bill—I think on Report. However, in this Bill, when we are talking about succession to the peerage, I think it would be appropriate to introduce this element which science has made possible within the past few years. I hope that your Lordships’ House will accept this amendment. I beg to move.

[Baroness Deech]

My Lords, some while ago, I was chairman of the Human Fertilisation and Embryology Authority. Little did I think that that post would have any bearing on today’s debate. Without going into the detail, there is no doubt that modern law, including the Human Fertilisation and Embryology Act of a couple of years ago, leads us to the situation that children, however they are conceived, enjoy the same rights as those conceived in the natural fashion. In fact, I think that the amendment goes further than is absolutely necessary—it may be a storm in a teacup—because if the child has the gametes of both parents, it is their child. However, the law says that a child born to a surrogate mother is actually the child of the surrogate mother. The law treats the baby as the child of the mother from whose body it emerged. This amendment would achieve something, but if we are ever going to get a general statement of principle from the Government or elsewhere, it will have to be along the lines that the use of in vitro fertilisation techniques, as in other walks of life, will make no difference to succession to titles.

[Lord Jopling]

The noble Baroness may recall that I was heavily involved in the 1990 Act following a constituency case, which I mentioned earlier. The law was changed so that in the case of a surrogacy the genetic mother could get an order from the High Court that she be deemed to be the full mother, not the surrogate mother. In this case, no doubt, the same procedure would have to be followed, as in the High Court ruling. At that stage, the genetic mother would be fully the mother.

[Lord Trefgarne]

I am far from an expert in these matters but, as I understand them, these things can be determined by analysis these days. It is therefore perfectly straightforward to satisfy or solve a dispute as to who was the mother or father. The amendment tabled by my noble friend Lord Jopling goes the right way and I support it.

[Lord Lucas]

My Lords, I, too, support my noble friend’s amendment. It would have been very useful to the Lord Bengwill of his day—in 1745 he was on the wrong side, or perhaps the right side, and his title was extinguished for a while before being reignited in Victorian times—if he had been able to save a few frozen Stuart embryos, which the society for the restoration of the Stuarts could pop out into this world at regular intervals as proven children of that line. It might cause some confusion. Perhaps things are not quite as simple, particularly for succession to privileges and powers, as they are in ordinary human reproduction, so we ought to take a little care.

[Lord Jopling]

My Lords, in view of the support that the amendment has received, I hope that it will not be opposed; no one has spoken against it.

Amendment 14 agreed.