Scotland: Constitutional Settlement

Lord Lang of Monkton Excerpts

Tuesday 10th March 2015 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, there is nothing in the proposals that were in the agreement of the Smith commission and the draft clauses that would add another layer of government. The premise of my noble friend’s question is wrong.

[Lord Lang of Monkton (Con)]

My Lords, as this is the third enduring settlement that has been offered in the past 17 years to strengthen the union through devolution, and as three of the signatories of the Smith convention moved on rapidly, using it as something of a stepping stone to demand further change, does my noble and learned friend not agree that what is on offer is not so much an enduring settlement as a springboard to separation? I echo the words of my noble friend Lord Lexden to emphasise that this matter has not been properly debated in the United Kingdom context and that before anything else happens it should be fully debated in both Houses of Parliament, with the United Kingdom’s interests put to the fore?

[Lord Wallace of Tankerness]

My Lords, as I indicated in my answer to my noble friend Lord Forsyth, no one actually accepted that the 1997 or 1998 Acts were the final word. Clearly more needed to be done to ensure financial accountability; that is something that I hope that my noble friend would probably endorse as a good, democratic principle. These are matters that should be debated by the United Kingdom Parliament; it has heard that all three United Kingdom parties are committed to a Bill being brought forward after the Queen’s Speech, when there will be ample opportunity for debate.

Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015

Lord Lang of Monkton Excerpts

Thursday 26th February 2015 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, I am most grateful to my noble and learned friend for setting out the arguments which the Government advance on behalf of this order. I am not entirely persuaded by the force of those arguments and I shall come to that in the course of my speech. However, the main thrust of what I will address is the constitutional aspect of bringing forward this measure in an order of this kind. My noble and learned friend referred to the fact that several Section 30 orders have been used. That does not, in itself, make it right. What matters is the content of the orders and the circumstances in which they are presented.

I am concerned partly with the substance of what is proposed but mainly with the procedures from which the order has emerged. Your Lordship’s Constitution Committee is conducting an inquiry and will in due course publish a report on the draft clauses published to enact the recommendations of the Smith commission. As my noble and learned friend said, the policy enshrined in this order has been brought forward in advance of that so we have issued a short report on it which we published at the start of this week in the hope of assisting the debate. I say in passing that haste is the hallmark of bad law in matters constitutional. This whole process has been redolent of haste.

Our first concern has been the failure of the Government directly to address the constitutional implications of this proposal—or, indeed, the draft clauses to implement the whole of the Smith commission’s recommendations—either in a Command Paper or in the draft Explanatory Memorandum for the order. The changes to the voting age in Scotland have no direct effect on the franchise of other UK elections, as my noble and learned friend said, but there are clear indications that they set a trend. The Wales Act 2014 provides for the reduction of the voting age to 16 in any referendum on tax-raising powers for the Welsh Assembly. In evidence to our committee, the Secretary of State for Scotland said he thought it “unthinkable” that the franchise for the UK general election of 2020 would not include 16 and 17 year-olds. What a contrast that slide towards a new policy across the United Kingdom is to the procedure followed in the late 1960s, when the age was reduced from the age of 21 to 18 only after two separate commissions had reported, one into electoral law and the other into the age of majority. Consider the contrast also with the Republic of Ireland, where a constitutional convention discussed the issue in 2013. A referendum on whether there should be a reduction to the age of 16 is to be held.

This change in the voting age is highly unusual, looked at across the globe. Internationally, 171 countries have a voting age of 18. Three have an age of 17: Indonesia, Sudan and the Democratic People’s Republic of Korea. Four have 16: Brazil, Austria, Nicaragua and Cuba. One, Iran, has 15. A larger handful, including Japan, Malaysia, Pakistan and Tonga, have ages around the 20 to 21 mark. We in the United Kingdom propose to enable Scotland to do this without adequate recent consultations, with no White Paper or debate in Parliament, just an unamendable piece of secondary legislation which prevents effective scrutiny. I do not think that that is an appropriate way to proceed with constitutional legislation of this kind—legislation, be it noted, that goes beyond the Smith commission recommendations, as my noble friend Lord Forsyth pointed out, by including local government elections as well as Scottish Parliament elections. Again, there has been no consultation on that or proper parliamentary consideration.

One of the proposals that I do welcome in the draft clauses, to which my noble friend Lord Forsyth again referred and which are not before us today, is draft Clause 4, which will provide that future change to electoral law in Scotland will need a two-thirds majority in the Scottish Parliament. That is an important point of principle which I welcome, but if that is to be introduced shortly, why not now, for this significant change to the voting age being proposed? It really is not good enough simply to say, “Because it was in the Smith commission proposals”. Those proposals were not the basis of parliamentary consideration either. We will now be presented with draft clauses, which have not yet had any scrutiny whatever.

[Lord Reid of Cardowan (Lab)]

Notwithstanding whether noble Lords are wedded to a supermajority or opposed to the 16 age-limit threshold for voting, can the noble Lord do a better job of explaining the Government’s transition during the last few months than the Minister did? The only reason I heard for not having a supermajority was the unanimity in the Scottish Parliament. That seems to completely undermine the argument against having it. If there is such unanimity, a supermajority would not in any way preclude the possibility of that passing. Can the noble Lord explain why the Government’s position appeared to change from January to February, and back again from February to March?

[Lord Lang of Monkton]

My responsibility is not to explain the Government’s position; my responsibility is to hold the Government to account. I am grateful for the noble Lord’s contribution, which does a great deal in that direction, and I am sure that my noble and learned friend will wish to return to this matter in his reply to the debate.

Another issue on which your Lordships are expected to be swept along is the important one of data protection, to which my noble and learned friend referred, and the implications of including details of minors in a public document such as the electoral register. I heard what my noble and learned friend said, and I accept that attempts are being made to take this matter seriously and reduce the risk that might arise. But again, that is a matter that should have parliamentary scrutiny.

Individual electoral registration means that more personal data will be collected and held by registration officers than happened under the old household registration system. Most young people about to turn 16 will probably apply for registration as attainers, at which time they probably will not yet have received their national insurance number, which is the primary means of verification. The examination, acceptance and storage of alternative proofs of identity will need the most careful thought and reassurance. None of this has had the kind of parliamentary scrutiny that the Committee stage of a Bill would provide—although I do welcome what my noble and learned friend said about the attention being given to the matter.

There have been many false dawns with earlier consultations on a reduction in the voting age. None has led to a firm conclusion in support of it. In 1998 the House of Commons Home Affairs Committee decided not to recommend a change. In 1999 the Howarth working party on electoral procedures reached the same conclusion. In December that year, in proceedings on what was to become the Representation of the People Act 2000, an amendment to reduce the age from 18 to 16 was rejected by an overwhelming majority.

As for the merits of the case for younger voting, of course we want young people to take an interest in our democratic process and in the issues of the day, and to start to develop their political beliefs. But if giving them the vote at 16 would achieve that, why does the 18 to 21 age group have the lowest turnout rate of all at general elections? It is not getting the vote earlier that matters, but attaining sufficient intellectual maturity and involvement in the issues that will affect their lives which will begin to engage them. Then, when they do get the vote, they will value it and be more likely to use it.

I mentioned the number of reports that came out in the early years of this century. People addressed the issue, and some of them left the door open. But broadly they all agreed, as successive Governments have done, that the present position should remain in place. In 2003 the Electoral Commission reached that conclusion as well.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend for the excellent report his committee has produced. Did the committee consider why, if it was proposed to reduce the age of the franchise and give the right to vote at 16, it was not also proposed that people should be able to stand as candidates at 16?

[Lord Lang of Monkton]

Again, my noble friend makes an extremely relevant point. The relationship between voting age and the age of majority has not been adequately considered, either. I hope that this will emerge in the course of the debate. I do not wish to take up too much of the House’s time, so I will bring my remarks to a conclusion. I am sure that other noble Lords will wish to explore further the pros and cons of that change. The burden of my message to your Lordships today is simply to state that the appropriate parliamentary processes for a constitutional change of this kind have not been properly observed—and that is something that should not pass without comment.

[Lord Purvis of Tweed (LD)]

My Lords, this is a short measure, but one that I believe will have a very positive impact on our democracy—across the United Kingdom as a whole, but most particularly in the relationship between the Members of the Scottish Parliament and local authorities in Scotland and the people who elect them, and on how politicians respond to the desires of voters when they are elected.

On the assumption that the Scottish Parliament will vote to use the power once it has been transferred, for the first time in these islands parliamentarians will be elected by people aged 16 and over. That will mean that in elections to the Scottish Parliament and local authorities, not only will 16 and 17 year-olds be taught about citizenship and informed in schools and colleges about the processes of democracy, but they will be active citizens themselves. They will be enfranchised, and they will be participants. That is right and proper, and a considerable and positive step.

MSPs will no longer see 16 and 17 year-olds simply as people for whom services are provided in schools or colleges, or by councils and elsewhere; they will have to consider them as voters—not only as the receivers of services but as people who will have a direct say in how those services are shaped and delivered. They will become part of the democratic relationship between those who are elected and those to whom they are accountable. That is important and this proposal is a first step towards that.

Scotland: Devolution

Lord Lang of Monkton Excerpts

Wednesday 29th October 2014 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, it is a great pleasure to follow the right reverend Prelate and to reassure him that the Romans did indeed get well into Scotland—but it did them no good. I am sure the whole House looks forward to the maiden speech in today’s debate of the noble Lord, Lord Lennie.

I welcome this further debate on devolution, although it takes place in greatly changed circumstances. What should be happening now? I think the ideal answer is calm reflection, consultation and consideration of a way forward, not just for Scotland but for the whole United Kingdom. Unionism won the referendum but for a secure future it is clear that the union now has to change. I believe now that a wide consultation process should take place and that it should involve the interests of all the component parts of the United Kingdom.

Few can now dispute the causal link between the establishment of a Scot-centric, lopsided, asymmetrical, tax-free, unstable form of devolution in the Scotland Act 1998 and the slow but accelerating landslide towards separation that has ensued. That approach has not brought stability or fairness. Successive changes have fed the flames and come close to destroying the United Kingdom. Under that approach, devolution has become a separatist policy. It has been the gift that keeps on taking. The slogan that Labour coined in the 1990s, “We didn’t get the Government we voted for”—that self-deluding piece of constitutional chicanery—is the same slogan that the separatists have picked up and run with ever since. That is why we have to pause, step back and bring the whole nation into the debate. That is why I am uneasy about the rush to action to which we all find ourselves firmly committed, although of course we do have to honour the commitments that have been given.

I would like to try to be constructive, in particular to seek information from the Government to head off any threats that the latest devolutionary proposals create, because I think I see a potential impending problem. The core of what is contemplated now is the raising of a higher proportion of what the Scottish Parliament spends from direct taxation by it, instead of from a grant from the Treasury. There will of course be a read-across in due course to Wales and Northern Ireland. Of the variations on offer, I support the Strathclyde commission’s proposal to transfer the whole of income tax as it forces the issue directly towards the pockets of those who will have to pay. It will be a democratic stimulus. But my concern is this: I do not understand how it can possibly work. The funding system for public expenditure in Scotland is much misunderstood, in particular the Barnett formula. A formal submission from the Scottish Labour Party to the Smith commission referred to the “Barnett grant”. But there is no such thing as a Barnett grant. It does not exist. Barnett is a mathematical formula—no more, no less. It has no funds to grant. The funds come from the Treasury’s Scottish block grant, annually disbursed. The block grant is the key to the whole thing. The baseline of that block grant is not recalculated every year except to take account of relative population changes. Rather, it is the accumulated mass of past settlements and favours won for Scotland by past administrations, to which is added a new sum each year. It takes no account of relative need. The disbursement of that annual sum is where the Barnett formula comes into play.

I will spare your Lordships the details of how the mathematics of the formula works. It is intended to, and it does, erode gradually—very gradually—the excesses contained in that grant. In due course, it will become increasingly irrelevant as the block grant itself is cut into. It is the block grant that enables Scotland still to spend much more per head than England on many public services, and England and Wales are right to feel short-changed. It is the block grant that is now about to be hacked into by the 10% income tax provision in the Scotland Act 2012, not yet implemented, and by whatever further devolution of taxation the Smith commission decides on.

I wonder how the product of that 10% income tax and future tax transfers will be calculated and the block grant therefore cut. The impact of that and the further tax transfers proposed could be substantial, reducing the block grant by a large amount. Out of date though it is, and largely irrelevant as a true measure of relative need, the block grant is a pot of gold compared to the uncertainties that lie ahead with its replacement by Scottish income tax. The tax base in Scotland is weaker than in England. There is a larger public sector and correspondingly smaller private sector. With the machinations of the nationalists stirring up uncertainty and loss of confidence, that is likely to get worse. Investment decisions and productivity look endangered just when they will need to be enhanced. But the cushion embodied in the block of some £4 billion, which Barnett does not touch, could now evaporate along with much of the block. The consequences for current spending levels and future taxation could be extremely serious.

I have long argued that the surplus that has built up in the Scottish block grant should be addressed to bring fairness to the rest of the United Kingdom, but in the context of tax changes now facing us, we urgently need clarity on that potentially very difficult issue. What plans has the Treasury to erode or retrieve part of that £4 billion? Does it plan in some way to identify and hypothecate spending within the reducing block, thus second-guessing how the Scottish Parliament might spend it? Then the block grant would no longer be a block grant.

I ask my noble and learned friend to tell the House how that transition will be managed. What will happen to that £4 billion cushion that I referred to? It is an excessive figure, but some of it is deserved and, at the least, a transitional period is needed if it is to disappear. Will there be what is urgently needed across the whole United Kingdom: a new, needs-based study of relative need and new arrangements introduced to meet what will be fair and just forms of support, once the facts have been accurately established? The matter is now becoming a burning issue.

That brings me back to my central theme. It is only by establishing fair and balanced systems and powers of government across the whole United Kingdom, varying in detail but harmonised in their underlying principles, that we can hope to achieve the stability that will secure the long-term future of the United Kingdom.

Scotland: Independence

Lord Lang of Monkton Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, I would very much like to contribute to the main debate today but my first duty and privilege is to speak to the report from your Lordships’ Constitution Committee on the constitutional implications of the referendum on Scottish independence. I am grateful that we are able to debate the report so soon after it was published, and to the many expert witnesses who gave evidence to us.

This is my first speech as chairman of the Constitution Committee and, before addressing the report, I put on record my thanks to my predecessor, the noble Baroness, Lady Jay of Paddington. I know I speak on behalf of the whole committee in saying how effective and skilful she was in the chair. The committee’s success in recent years is in large measure down to her.

I earnestly hope that the work embodied in our report on what might need to happen in the event of a yes vote will turn out to be redundant. However, the committee felt that there had been relatively little consideration of what the constitutional implications of such a vote would be. It is well to be prepared for the worst while striving to prevent it from arising.

It emerged from our inquiry that certain legal principles would govern the aftermath of a yes vote, some of which are founded in international law. Perhaps the most important is that the rest of the United Kingdom would retain the personality of the existing UK and thus become the continuator state. This would mean that it would retain the treaty obligations and membership of international organisations of the existing UK. For example, it would remain a member of the EU, the UN and NATO and would not have to apply to them anew. Scotland would become a new breakaway successor state. It would have to seek membership of international organisations and, where it does not already have them, create its own institutions. That was the overwhelming view in the evidence that we heard and we agreed with it. Whether by international precedent, share of population and territory or by recognition by other states, there is no room for doubt; all legal principle and convention point to that fact. No realistic alternative has been offered, not even by the Scottish Government.

This conclusion leads directly to the question of the division of assets and liabilities between Scotland and the rest of the United Kingdom. The most important established legal principle would be that they should be shared equitably between the two states. Fixed or immovable assets, such as government or military buildings, would automatically become assets of the state in which they were located. However, moveable assets, such as military equipment, would be subject to apportionment through negotiation. Similarly, the apportionment of liabilities, such as the national debt, would also be subject to negotiations. All this is already well recognised, but the status of the UK as the continuator state has particular importance where its institutions are concerned.

The precedents are clear beyond doubt: the institutions would remain with the United Kingdom. Whether it is the Bank of England or the National Lottery, the nation’s intelligence services or the BBC, the Supreme Court or the UK’s worldwide Diplomatic Service, its research councils, all its administrative and regulatory services and countless more institutions, all would remain with the United Kingdom. There would be no obligation on the UK Government to bring them forward for negotiation. A vote to leave the UK is a vote to leave the UK’s institutions. It is essential that those voting in September’s referendum understand what is at stake. That is why the Chancellor of the Exchequer, when he made it irrevocably clear that a shared currency would not be agreed to, was on strong legal grounds and was able to do so without qualification.

I turn now to the significant implications of independence for the constitutional institutions of the UK. Evidently, legislation would need to be passed by this Parliament to facilitate Scottish secession from the union. That legislation would need to end Parliament’s legislative competence over Scotland, and it is likely that extensive consequential legislation would also be needed. In the period between a yes vote being delivered and the date of actual independence, Scotland would still be in the union although it would be known that independence was on its way.

We were taken by surprise when the Secretary of State for Scotland told us that:

“Unless and until the people of Scotland vote otherwise, the UK Government will continue to act on their behalf”,

and when a Foreign Office Minister said:

“If Scotland votes for independence, from that time on ministers in the UK Government will have a responsibility for people of the rest of the United Kingdom”.

Surely it cannot be right that from the moment of a yes vote, many months or possibly years before an actual date of independence, the UK Government would cease to act in the interests of the people of Scotland. I hope that my noble and learned friend will be able to clarify the Government’s position on this at the end of today’s debate. It would mean that for that transition period the UK Government would not take into account the interests of Scotland when making policy on reserved matters, and Scotland would not be represented internationally. This could leave Scotland in constitutional limbo.

We therefore recommended that the two Governments should reach an agreement immediately after any yes vote to clarify the international representation of Scotland, and that during the transition period the UK Government should take long-term decisions on reserved matters primarily or solely affecting Scotland only after consulting the Scottish Government. I think that your Lordships will agree on the logic and common sense of that; it seems to me to be inescapable.

The impact of independence on the House of Commons would also be profound. It is widely accepted that the 59 MPs representing Scottish constituencies would have to depart the Commons. The committee concluded that they should depart on the date on which Scotland secedes from the United Kingdom. Until then, their constituents would still have a right to representation at Westminster. Legislation to this effect would be necessary.

Although those MPs would remain Members during that period, it also seemed clear to us that they should not participate in parliamentary business that does not affect Scotland. As one of our witnesses said, that would be like,

“the West Lothian question on steroids”.

It may be that the Commons could make internal arrangements to address the matter or that Scottish MPs excuse themselves from votes on non-Scottish business. Whatever the answer, we think that the matter should be resolved quickly should there be a yes vote. It should certainly be settled and enshrined before the 2015 general election.

As your Lordships would expect, the committee turned its mind to the implication of independence for your Lordships’ House. Most Members of this House hold peerages of the United Kingdom. We do not represent territories. As this Parliament would remain the Parliament of the rest of the UK, Peers of the United Kingdom would continue to have the right to sit in it. However, under the Constitutional Reform and Governance Act 2010, all Members of this House are deemed to be,

“resident, ordinarily resident and domiciled in the United Kingdom”,

for purposes of certain taxes. Unless that law were amended, it would mean that Members of the House who live in Scotland, currently estimated at more than 60 Members, would either have to pay tax in the rest of the UK or they would have to retire from the House on the date of independence.

Independence may also affect the six Members of the House who sit solely by virtue of a Scottish peerage. It would need to be decided whether they should be entitled to continued membership of the House on the basis of a Scottish peerage alone. However, these are matters that need not be decided until after 18 September, when I hope that such decisions will become unnecessary.

Turning to consideration of the negotiations that would follow a yes vote, it seems obvious that just as the seceding state of Scotland would negotiate in its own best interests, so the sole objective of the negotiators for the rest of the UK would be to secure the best outcome for the people of the rest of the UK. All other considerations flow from that. We heard different suggestions as to who should be represented on the rest of the UK’s negotiating team. We concluded that while it would be important for the Official Opposition and devolved Executives in Northern Ireland and Wales to be consulted during the negotiations, the actual negotiating team should most effectively be small and composed solely of representatives of the UK Government. That would, incidentally, follow the precedent of 1922 and would seem to offer the best prospect of successful negotiations within a reasonable time.

Related to that, we reached the conclusion, supported by our witnesses, that Scottish MPs, whether Back-Bench or Ministers, should not be on the negotiating team for the rest of the UK. Their duty as MPs would be to represent their Scottish constituents. That would conflict with the objective of the rest of the UK negotiating team to secure the best outcome for England, Northern Ireland and Wales. Nor did the committee think that Scottish MPs should play any part in debating or approving the negotiations; again, there would be a clear conflict of interest. Were there to be a yes vote, we recommended that the UK Government should put before Parliament a proposal to put these matters beyond doubt at an early date.

It would also be undesirable for either one or both of the negotiating teams to be unable to start work because of avoidable legal challenges. We therefore recommended that soon after any yes vote, a Bill should be introduced to this Parliament that would devolve power to the Scottish Parliament to make provision about a negotiating team for Scotland and to create a legal basis for the UK negotiating team. Such a Bill need not name the negotiators. The intention of it would be simply to put the legal basis of their position beyond doubt.

The committee also considered the timetable for negotiations. The Scottish Government have set out their proposed timetable, which would see Scotland becoming independent on 24 March 2016. We heard mixed views on how realistic this would be, but the key point is surely that the date has no formal status. It is an aspiration of the Scottish Government but the negotiations would take as long as they took. There is no constitutional principle involved and there would be no obligation on either side to meet a specific target date.

I hope that in producing this report the Constitution Committee has provided some clarity on what a decision taken by Scotland to vote for independence would mean in the short term for the constitution of the rest of the United Kingdom. Longer-term constitutional damage is harder to assess.

By way of an antidote, I turn from contemplating what would need to happen if there were a yes vote to the wider and more immediate debate itself and the need to press the arguments for voting no. I reflect that 700 years ago today we Scots won a great victory against overwhelming odds over an invading English army. It changed our history but brought us neither security, order nor prosperity, all qualities that give substance to the word “freedom”. It did not end the fighting, which went on. Just over 200 years later, we were the invading army and England won, but still the fighting continued. The lessons of Bannockburn make sense only when considered alongside the lessons of Flodden. Only in 1707, after the Treaty and Acts of Union that created one country—Great Britain—had abolished English and Scotland as separate states, did lasting peace break out, and with it prosperity, intellectual flowering and national security. Since then, except for Culloden when Scots fought on both sides, we have always stood steadfast together against common enemies and seen them off. Together we have prospered in peace and security.

Next week Her Majesty the Queen will come to Scotland to launch the biggest ship and the greatest defence vessel ever built in the United Kingdom. No part of the UK could have done it alone. That aircraft carrier, HMS “Queen Elizabeth”, is designed to serve the cause of peace, security and freedom for the next generation of all of us in this country and beyond. It is 100% British and a triumph of co-operation, to be launched at Rosyth but bringing together the workmanship of thousands of skilled workers there, on the Clyde, on the Tyne, at Portsmouth, at Birkenhead and in Devon. Nothing better exemplifies the extent to which all the peoples of the United Kingdom are better together. There is our future security. What a contrast it is to the alternative of a separate breakaway Scotland, isolated and unable to defend its own shores, let alone the vast areas of open skies and seas to the north and west. Not only would secession jeopardise Scotland’s own security, it would also blow apart the highly integrated nature of the UK’s defences, in which Scotland plays such an important role.

The referendum in September is not just about Scotland’s future; it is about the future of the whole United Kingdom. In striving to save Scotland for the union, we would also be saving our United Kingdom.

Succession to the Crown Act 2013

Lord Lang of Monkton Excerpts

Wednesday 26th February 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, it is fair to say that all the state premiers in Australia have indicated their support for this measure, and that the Commonwealth Government of Australia stand ready to put in place the necessary legislation once each of the states has enacted its legislation.

[Lord Lang of Monkton (Con)]

My Lords, does the Minister agree that this Bill, which was always a sensitive measure, becomes more sensitive with every day that passes without agreement? When the Bill passed through this House it was emphasised to us that the Bill was urgent and unamendable because all the other realms had agreed to all the principles underlying it—all the more reason, therefore, to urge my noble and learned friend to ensure that representations are made to ensure the speediest outcome in those realms that have not yet completed the process.

[Lord Wallace of Tankerness]

My Lords, as I indicated, there is only one realm that has still to legislate. Some realms took the view that, under their own laws, legislation was not required. I have indicated the position in Australia and have no reason to believe that anything other than good endeavours are being used to get the necessary legislation in place.

Scotland: Independence Referendum

Lord Lang of Monkton Excerpts

Thursday 30th January 2014 Lords Chamber

Moved by

[Lord Lang of Monkton]

That this House takes note of the implications for the United Kingdom of the forthcoming Scottish independence referendum.

[Lord Lang of Monkton (Con)]

My Lords, I am honoured and delighted to be able to introduce this debate on the implications for the United Kingdom of the Scottish independence referendum. I feel strongly that the question of independence for Scotland raises issues that should involve the whole United Kingdom. I welcome the number and range of interests across the House, and from across the nation, that the debate has attracted, in particular the participation, with her maiden speech, of my noble friend Lady Goldie. The House will look forward to what she has to say.

Although the referendum is now less than eight months away, I hope that today’s debate may cast a broader and more illuminating light on what has thus far been a deeply introspective debate within Scotland. Alas, PG Wodehouse gave us the English view:

“It is never difficult to distinguish between a Scotsman with a grievance and a ray of sunshine”.

We Scots have to work on that.

Scotland, for all its capacity for complaint has, over the centuries, been a full—indeed, more than full—partner in the magnificent success story of our partnership of nations and, I believe, has many friends among the other partners. With Northern Ireland and Wales, there is a kind of fellow feeling against the might of England, yet over 800,000 expatriate Scots live in England and 400,000 English people live in Scotland. It is a source of great regret that so many expatriate Scots are disenfranchised in this referendum. They may think of themselves as British and take pride in that and in their Scottish antecedents, yet north and south of the border, within two generations, countless numbers of Britons could become foreigners to their kith and kin.

For generations, Scots and English have lived alongside each other, sharing a British heritage. They fought shoulder to shoulder in the battles of the past three centuries and still serve together today; we all take pride in that. Together, they built and administered the empire before turning it into the Commonwealth, with Scots very much to the fore. Both countries are woven into the fabric of the United Kingdom. Must they now, both Scotland and England, disavow that shared history? Would that not dishonour the sacrifices, made in common cause, of those who died for the United Kingdom, a nation now to be cut in two if the present generation of Scottish nationalists have their way? I earnestly hope not.

There is nothing positive about an independence campaign that would destroy so much. However deep-rooted the fellow feeling and the sometimes grudging respect with which Scotland has jogged along within the UK, I believe that it would evaporate rapidly after a yes vote. Notwithstanding the rose-tinted spectacles of its present Government, Scotland would become a competitor of England, not a compatriot. The Governments of the remaining UK and its devolved Administrations would be obliged, regardless of sentiment or blood ties, to fight their own corners, fiercely if necessary, in the ensuing relationship. It would risk becoming like an increasingly hostile divorce, in which the parties continued to live next door to each other afterwards.

Where would that leave Wales and Northern Ireland? No wonder we hear that they feel worried and unsettled. If Scotland leaves, the population of the non-English part of the United Kingdom would be reduced by over half. The Principality and the Province would begin to look like mere add-ons to an overweening England. Surely no one would want to send vibrations from Scotland that might reopen old wounds elsewhere, but the trauma of a broken union would shake all its parts. The once-united kingdom would shrink, not just physically, but in the eyes of the world. Others would see it as diminished: diminished in size, diminished in population, diminished in strength and diminished in authority. The mother of parliaments would be viewed as unable to hold itself together. An historic partnership of peoples would seem to be crumbling and Britain’s international prestige and influence would crumble with it. Our standing in the Commonwealth would change, our standing in Europe, in NATO, the UN, the World Bank and the World Trade Organisation—one could go on. These are just some of the arguments why Scotland’s departure would be so negative and so bad for the UK.

Many specific issues have emerged in Scotland thus far, during many months of debate. I wish that I had time now to address them all in detail, but I am confident that other noble Lords will do so during the debate. Much detailed work has been done, both by the United Kingdom government departments and by many respected independent bodies. However, almost none has been offered by the nationalist Administration in Scotland. A much-heralded White Paper was published by them. We had been told that it would answer all our questions. However, at some 650 pages, it has used its very length to obscure its emptiness. It is a wish list. In reality, the governing party that wants to take Scotland out of the UK has no answers to any of the challenges that a separate Scotland would face. On almost all of them a separate Scotland would be a supplicant, based on blind optimism and reliant on concessions from others for its viability.

Take the vital issue of the currency, on which the Governor of the Bank of England was so lucid in his warnings yesterday. The SNP White Paper asserts that the pound belongs to Scotland as much as it does to England, but that is not so. It belongs not to Scotland or to England but to the United Kingdom, which the SNP wants to leave. If a separate Scotland were to use the pound as its currency, with or without the United Kingdom’s consent, it would find that its fiscal and monetary policy would ultimately reside with the nation that it had abandoned. Scotland would not have a viable central bank. It would not be able to print money in a crisis and it could not be a lender of last resort. In effect its status would have changed from that of partner to that of dependency.

On the economy, the SNP takes pride on the one hand in Scotland’s wealth, while on the other it claims that, liberated from the United Kingdom, Scotland would become one of the world’s wealthiest nations. Yet that is what Scotland is already and that wealth has been achieved as part of the United Kingdom, not just overnight but built up over three centuries. Only last month, the Centre for Economics and Business Research forecast that the United Kingdom, currently number six in the world’s GDP table, would overtake France within five years and possibly even Germany later. Who would a separate Scotland overtake and how? We should be told that. The SNP’s answer is a vague reference to growth, yet at present throughout the western world only America is growing faster than the United Kingdom, and by only a fraction. Oil is, of course, the great panacea, but as we all know it is a commodity of volatile value, which is decided by world markets, not by Finance Ministers. No responsible Government could possibly base a national budget on oil.

At present the Scottish economy has strengths, but it also has vulnerabilities. For a start, it has too high a preponderance of public sector jobs and too low a proportion of wealth creators. Scotland does not have many large companies and more than 80% of those companies that employ over 250 people are owned outside Scotland. Of the large Scottish companies such as Standard Life, the Royal Bank of Scotland and Scottish and Southern Energy, most of their business is conducted outside Scotland. For such companies the inescapable introduction of another tax regime, separate regulators and administrative structures and the need to redesign their pension schemes would almost certainly drive some of them south.

Consider the banks in particular. We are told by the Treasury that the assets of Scotland’s banking sector are equal to over 12 times Scotland’s GDP—an astonishing figure. That would not attract the confidence of the outside world or indeed of the bank’s own directors. They need an established lender of last resort, stability and long-term security, but there would be no stability and no safety net in a Scotland in which any new financial crisis emerged. As fast as the new country established a separate financial jurisdiction, its banks would be scuttling across the border to find a lender of last resort. Already the UK Treasury has had to step in to underwrite, for a nervous world, some of the potential debt liabilities of a separate Scotland.

However, one of the present strengths of the Scottish economy—and that of England—is the extent of economic integration that exists between the two countries. Around 30,000 people travel in and out of Scotland every day to work. The postal, telephone and e-mail services hum with transactions every day between the two countries and the roads and rail services are kept busy. Those are the arteries of a united economy. Cut them and both countries would bleed.

A paper published by the Department for Business shows that in 2011 Scotland’s trade with the rest of the UK represented almost 30% of Scottish GDP. Indeed, in 2011 Scotland sold twice as much in goods and services to the rest of the United Kingdom as it did to the whole of the rest of the world. Perhaps more surprisingly, Scotland is the second biggest market in the world for goods and services from the rest of the United Kingdom; only the United States takes more. So it seems clear that, at present, the United Kingdom forms a highly efficient single market, an ever closer union of peoples that has actually worked. The OECD has recognised it as the most market-oriented, economic and regulatory environment among its membership. No wonder the United Kingdom has among the highest employment rates in the world. Why put all that at risk?

Membership of the European Union offers no escape. It seems clear that the Scottish Administration’s plans to gain quick re-entry via Article 48 have already been rejected and that no special treatment can be gained under Article 49. It might take years, if it happened at all. What is more, the new Scotland would not take with it any entitlement to a budget rebate on entry but would have to start contributing to the remaining United Kingdom’s budget rebate. It seems probable that it would have to join the euro eventually and to join the Schengen group, which would therefore mean that Scotland could not belong to the United Kingdom’s and Ireland’s common travel area. That in turn would lead inexorably to the rest of the UK having to set up barriers and customs posts across the 95-mile border between Scotland and England, with all the hold-up and disincentive to trade that that would entail.

All this would add up to a new country with big problems, but England would surely prefer to see its neighbour as rich and successful, rather than have its second biggest customer in decline. For the first time in 300 years, England would have an undefended northern land border; it would have a country to its north that wanted to join NATO but refused to pay the nuclear entry fee. The implications for the UK’s defence are immense. I have no doubt that other noble Lords may wish to expand on that important matter and on many others.

I would like to spend a few moments in addressing what I believe could happen after the referendum if, as I passionately hope, the outcome is that the Scottish electorate vote no. The very fact of the referendum shines a light on our now complicated constitutional arrangements. I welcome the Prime Minister’s firm commitment not to discuss any further constitutional change ahead of the referendum, because that would only cloud the issue of separation—just what the separatists want. It is absolutely right that we should address the referendum question head-on, with no distraction. The question of whether or not to walk away from the rest of the United Kingdom will be one for the people who live and vote in Scotland, but what happens afterwards will not be. More devolution, or less, is a quite different matter. It is a matter for the whole United Kingdom, and that includes Wales and Northern Ireland as well as England. As others have pointed out, to resign from a club is for the individual member; to change the rules of the club is for all the members.

There seems to be an extraordinary mood among many in the Scottish political parties who oppose separation, who believe that they can simply agree on a shopping list of further powers for their Parliament and that such powers will be granted as of right. Scotland is going to have to abandon this mood and, I say gently, get real. Devolution is not just about Scotland; it affects everyone. A power devolved to one part of the United Kingdom creates imbalances elsewhere. Devolving a power is not about favours, still less about demands. It is the quality of government that matters, rather than the quantity. It is about responsibility and accountability, not just power. The present arrangements give the Scottish Government power to spend 60% of all government expenditure in Scotland—that is comparable with the German Länder and more than the Australian states and the Canadian provinces—but the responsibility is to raise only 20%. Such is the lack of accountability that has developed.

Scotland had for years devolved to it a 3p in the pound discretionary power to raise or lower income tax. It was not used. The SNP Administration even allowed it to lapse. Now there is a new Scotland Act, the 2012 Act, on the statute book for two years. It contains the biggest fiscal transfer in British history, which will soon give the Scottish Parliament the responsibility to raise 10p in the pound of its revenue locally with a corresponding cut in its block grant, and to raise more than that or less than that if it so chooses. Except on borrowing for capital expenditure, there is no upper limit to the use of that power. The Act even grants the power to invent and impose new taxes with the consent of the United Kingdom’s Parliament, but why did it give that power if it did not intend to allow it to be used? Therefore, Scotland now has the power to raise and spend what it needs to implement the policies that it judges necessary. It does not need to wrench the country out of the United Kingdom to achieve that. I find it very strange that that Scotland Act, and the authority that it brings to Edinburgh, has gone entirely unmentioned in the referendum debate so far.

However, all these changes bring anomalies elsewhere. In particular, I believe that the position of England needs to be considered. Already one can see the beginnings of a kind of identity crisis developing there. Two of the serious flaws of the Scotland Act 1998 can surely no longer be allowed to fester—namely, the West Lothian question and the Scottish spending block, in particular the Barnett surplus. You cannot solve the West Lothian question just by ignoring it. One option to solve it that I have suggested in the past is by setting up not a separate English Parliament but an English Grand Committee within the Westminster Parliament. It is not a perfect answer, I know, but it was made to work for Scotland for 100 years before devolution and, with a little imagination and possible adaptation, it could be made to work for England. There is also the work of the McKay commission, which offers a means of diminishing the democratically offensive aberrations of the present position. It is almost a year since the commission’s report appeared and I hope that my noble and learned friend will indicate when the Government intend to respond to it. On the Barnett surplus, everyone knows that the basis of the present distribution of funds is out of date. We know that that, too, created an imbalance that can be put right. A fair-minded Scotland would agree. We need an up-to-date measurement of relative need in Scotland and elsewhere in the United Kingdom.

The United Kingdom will never settle down again, comfortable in its own skin, unless these anomalies are ironed out. They need to be addressed in a positive and broadminded way. We need to look at them not from the point of view of the outstretched hands of devolved Administrations but from the point of view of the United Kingdom as a whole, and in its overall interests as well as those of all its parts, all of which should have a say.

I believe that we need a new approach. We need to refresh our understanding of what the United Kingdom is, its strengths and its core values. We need renewal. In short, what we need is a new unionism—a unionism that unites us, binds us and brings us together again and brings constitutional stability to the whole United Kingdom. We need to demonstrate its virtues and its fairness, not through ad hoc disbursements here or there but through a thorough and open reappraisal of our nation’s central strengths and how devolution fits into that. Above all, it is time to put the politics of grievance behind us. Others have suggested that a Joint Committee of both Houses should be set up after the referendum with broad terms of reference. I support that as one option, but we need the commitment of all the major political parties to work together in the national interest. We can turn the challenge of separation into the opportunity for reinvigoration. The break-up of Britain proposed in the referendum—this destructive, negative and irreversible process—does not need to happen. There is a positive alternative for Scotland and all of us within the United Kingdom. I beg to move.

--- Later in debate ---

[Lord Lang of Monkton]

My Lords, happily it is not my task to sum up the large number of fascinating speeches that we have heard today. That was the task of my noble and learned friend Lord Wallace of Tankerness, and he has just done that brilliantly. His courtesy and attention to detail was a masterly example of how it should be done. I thank him and the noble Lord, Lord McAvoy, for sitting throughout our debate and listening very closely to what has been discussed.

In all the years I have spent in this House, I cannot remember a debate that was so engrossing from beginning to end, nor can I remember such a consistently high standard of speeches throughout. Indeed, it is hard to think of a more profoundly important subject than the one we have debated today—the survival of the United Kingdom of Great Britain and Northern Ireland.

I congratulate my noble friend Lady Goldie of Bishopton on a superb maiden speech which was very well judged and welcomed by many here today. I say to the noble Baroness, Lady Quin, that she should keep submitting her name to the ballot. There is room for more debates between now and 18 September. Many aspects of this debate, although touched on today, could be expanded in future debates, and I very much hope that they will be.

The Scottish National Party defies the relevance, or even the existence, of this House—it ignores it—but, happily, the British public do not. I very much hope that what has been said today will reach out to a wider public. For me this has been an amazing debate. We have had six former Secretaries of State taking part, five from Scotland and one from Wales; one Scottish former Chancellor of the Exchequer; one Scottish former Chief Secretary to the Treasury; two very distinguished Scottish judges; a chancellor and a vice-chancellor of two great Scottish universities; a clutch of former First Ministers, a Presiding Officer and current and former Members of all the devolved Administrations of the United Kingdom, Scotland, Wales and Northern Ireland; one Scottish former ambassador to the European Union and head of the Foreign Office; one former Secretary-General of NATO; and one former head of the British Olympic Association. We have had more than 40 Lords a-leaping, and I dare say that if we had a pear tree in the Chamber there might be a partridge in it—and it would be singing a unionist song.

More importantly, we have had a lot of brilliant and highly articulate voices from all parts of the United Kingdom, and that underlines what the debate is about and the value that we all attach to the United Kingdom. I hope that the debate has helped to advance that cause. My privilege has simply been to act as convener for the event, and I thank all noble Lords who have taken part. I hope that we have done something to restore to the rest of the United Kingdom a strong conviction of the value of our United Kingdom.

Motion agreed.

Succession to the Crown Bill

Lord Lang of Monkton Excerpts

Wednesday 13th March 2013 Lords Chamber

Moved by

[Lord Lang of Monkton]

3: Clause 3, page 1, line 12, leave out “6” and insert “12”

[Lord Lang of Monkton]

My Lords, in moving the amendment I return to a matter that troubled me both at Second Reading and in Committee, namely the provision in Clause 3 to replace the Royal Marriages Act 1772 with a new requirement that only the first six persons in the line of succession to the Throne will require the monarch’s consent to their marriages. In my view that number is too small, and my amendment would increase it to 12.

The provision to which the clause will apply is much wider than before. Until now only Catholic marriages were specifically barred. Henceforth, consent can be withheld in respect of any religion, or for any other reason that the monarch, in consultation with his or her Ministers, thinks fit. That is the first major, and largely unadvertised, change that the clause makes. The seeking of consent itself is sensible in principle for a host of reasons, but it is the partial relaxation of the bar on Catholics that makes it necessary. To allow those in the line of succession to the Throne to marry Catholics while at the same time leaving in place an absolute ban on Catholics from occupying the Throne sets a collision course that sooner or later could cause trouble for the monarchy.

Clause 3, by implication, acknowledges that and seeks to provide some protection. However, my contention is that it does not provide enough. I am trying to resist the temptation to delve back into history again, having overindulged in Committee, but the more one considers this Bill and the 1772 Act, the more one realises what a minefield the Government are in danger of straying into. If the list of six now proposed had existed for the seven sons of George III, they would all have been members at some stage, but not all at once. Prince Augustus Frederick, sixth son of George III, and periodically sixth in line to the Throne, would have been in and out of the club three times in his life; yet he still managed to marry twice, both times without consent and both times during what would have been a period of membership of the six; and both marriages were declared void in terms of the 1772 Act. However, he did stay in the line of succession. Two other princes contracted marriages that were also voided by the Act. Three more princes stayed unmarried until middle age.

All of that suggests to me that the 1772 Act had a few unintended consequences, and it was not very effective on the marriage front. But it did serve a useful purpose, because although the royal dukes forfeited their unapproved marriages, they did not forfeit their places in the succession. Despite everything, that helped to maintain stability. The Bill before us does the direct opposite. It turns that around so that unapproved marriages will be allowed to remain in place—however unwise—but the right to the succession is lost. That loss is a substantial constitutional change, with potentially more unintended consequences, especially when linked to the relaxation on royal marriages.

At Second Reading, my noble and learned friend said:

“We retain the tradition of monarchical consent”.—[Official Report, 14/2/2013; col. 783.]

I respectfully suggest to him that he is not so much retaining it as turning it on its head. Before it was a measure confined to marriage to Catholics; now it is marriage to anyone of any religion or for any other unspecified reason. Before the penalty was the voiding of the marriage; now it is the loss of the right to ascend the Throne. These are constitutional changes of import. I do not believe that King George III, even in his angriest and most despairing moments at the behaviour of some of his sons, would have contemplated the extreme option of barring them from the succession. Yet it is done in this Bill, and not a word of explanation for such a change, so far as I could trace, has been offered either in this House or in another place.

Against that background my amendment seems impossibly modest. With these major changes, the future becomes harder to predict. However, what does seem clear is that just as a short list of six would not have been enough in the past, neither will it be enough in the future to protect the Crown from trouble. It is at the future that my amendment is directed.

I invite your Lordships to consider the potential case—a rather frivolous one, many years from now—of an imaginary granddaughter of the monarch, second in line to the Throne, who has a baby. Her first cousin, sixth in line, telephones her and says, “Thrilled about the baby. Do have another one soon so that I can marry that gorgeous Argentinean playboy I met last month in Ibiza”. It is frivolous but feasible. That would not happen if she were number six in a list of 12; and if something similar did happen with the 12th in line, it would be much further from the Throne and would have much less impact.

We tend to think of the succession in terms of Kings and Queens who have already reached the Throne, so for the most part it all looks relatively orderly and stable, looking back over the past couple of centuries. However, the line of succession is quite different. It can change rapidly and repeatedly. It can sometimes be unpredictable and even almost chaotic, as King George III’s experience demonstrated. He and Queen Victoria both exemplified the view that large families secured the succession, but there were certainly downsides to that. Now, and perhaps in the future, we tend to see smaller families but with longer life expectancy—several generations of them in the line of succession, a point made perceptively by the noble Earl, Lord Erroll, in Committee.

In that situation it is not difficult to demonstrate that all six places requiring marital consent can be filled by the heir apparent and his or her own children and grandchildren. That leaves all of the heir apparent’s siblings and their children outwith the ambit of marital consent. Can it be right that by the time they reach marrying age some of the reigning sovereign’s own children might not be covered by the terms of this Bill?

My noble and learned friend also said at Second Reading that he wanted to limit the monarchical consent,

“to the people who could feasibly assume the Throne”.—[Official Report, 14/2/2013; col. 783.]

So do I, but I ask him: is it not feasible that the siblings of the heir apparent might also, in some circumstances, assume the Throne? Should we not provide for that?

If some tragedy should befall the heir apparent’s family—and here I am giving a far from frivolous example —attention would turn to the monarch’s other children. Who could say how many of them or their children, beyond the reach of this Bill, may by then be married to Catholics and raising Catholic children or married to people of any other religion that is deemed unacceptable? That is when the line of succession would start jumping further out, and the further out it goes, the bumpier it gets and the more difficult it may become, after possible en bloc disqualifications, to find potential heirs who could meet the terms and obligations of a potential heir to the Throne.

My noble and learned friend accused me in Committee of positing a “catastrophic but remote hypothetical” event. However, I simply do not accept that. Nor do I accept that it is necessary or appropriate for me to spell out all the myriad risks and dangers that can and might arise in this day and age. We must be realistic, and not just hope for the best.

For all its faults, the 1772 Act brought certainty, if not to marriage at least to the succession. Now, with the repeal of that Act and its replacement by the Bill before us, it is the other way round: the marriages are okay but the line of succession is not.

--- Later in debate ---

[Lord Cormack]

If we pass this amendment this evening, it will simply go to another place, which will give extended time for sounding out opinion in the rest of the Commonwealth realms. If a negative response to those soundings was received, we could of course think again, and the Commons might decide to reject the amendment. We are simply expressing this view of this House on a common-sense matter. I very much hope that we shall be able to do that.

[Lord Lang of Monkton]

My Lords, I am most grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Baroness, Lady Butler-Sloss, and my noble friends Lord Cormack and Lord Elton, who gave me time to digest what I thought my noble and learned friend said at the end of his remarks. I will come back to that shortly.

First, I thank everybody who took part in the substantive debate, in particular my noble friends Lord True and Lord Lexden, and the noble Lord, Lord Thomas of Swynnerton, who are three serious historians. I invite my noble and learned friend to contemplate not only the number of noble Lords who have spoken, because there has been unanimous support from the Back Benches in the Chamber, but the quality of the contributions. I also thank my noble friend Lord Deben, whose persuasive luminosity was up to its usual very high standard. My noble friend Lord Mancroft brought substance and fact to a debate that has had to be held on a conjectural basis before, with his very important friends or relations—I am not quite sure which—in Germany. Not that all relations are necessarily friends. That was extremely helpful, as were the contributions from the noble and learned Lord, Lord Brown, and my noble friends Lord Hamilton and Lord Cormack. I apologise to anybody I have omitted to mention.

I do not want to go over all the points that were raised before, because we have batted balls around in the past and we do not always reach agreement. If I misspoke, to use a convenient Americanism, in the context of the 1772 Act, I apologise. The two central points I was keen to get across were that that Act was concerned with breaking marriages but saving the line of succession. The present Bill is the other way around. It would let the marriages go ahead but would throw in the bar to succession. That is an important injection of uncertainty that could lead to certain unintended consequences, which is why I am so keen to see a stronger and more stable base of 12 who have to seek the monarch’s consent in future.

As to the age at marriage, which is an improvement on my noble and learned friend’s previous commitment to the age at birth, Queen Victoria’s age at marriage was not relevant because by then she had left the line of succession and was already Queen. She would only have had to ask for consent to marry. I could, however, refer to the example of the Duke of Cumberland and Teviotdale, Prince Ernest Augustus, who was sixth in line to the throne when he married in 1815, rather than my noble and learned friend’s example of someone who was third in line. He ended up as King of Hanover in 1837 because, of course, Queen Victoria could not accede to that throne because of male primogeniture.

This comes down to judgment. I thought I heard a coded message coming from my noble and learned friend—I do not think I saw white smoke coming out, but at any rate it put me at a slight quandary. I am conscious that regardless of the extent of support within this Chamber, if it came to a Division the noble Baroness, Lady Hayter, has substantial support at her disposal in the Lobbies, and there is no detection of a change of tone coming from there. Nevertheless, I believe that my noble and learned friend is offering me half a loaf, which is better than none. I will withdraw this amendment in the hope that these discussions will be productive, not just empty posturing and going over the ground that we have already gone over. In that tone, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Succession to the Crown Bill

Lord Lang of Monkton Excerpts

Thursday 28th February 2013 Lords Chamber

[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?

Succession to the Crown Bill

Lord Lang of Monkton Excerpts

Thursday 28th February 2013 Lords Chamber

Moved by

[Lord Lang of Monkton]

12: Clause 3, page 1, line 12, leave out “6” and insert “12”

[Lord Lang of Monkton]

My Lords, from the deep and turbulent waters of Clause 2, we move to the only slightly less troubled waters of Clause 3. This amendment, which stands in my name, also has the support of the noble Lord, Lord Thomas of Swynnerton, who is unavoidably prevented being here today, and of my noble friends Lord Lexden and Lord True.

This is a simple, modest and practical amendment, which seeks to increase from six to 12 the number of persons in line of succession to the Crown who would be required by the Bill to seek the consent of the monarch before marrying. The existence of that provision in the Bill is to my mind a tacit admission of the potential for turbulence created by Clause 2 and that part of Clause 3 which repeals the Royal Marriages Act 1772, the Bill pitting, as it does, a relaxation over the entry of Catholics into the royal line against the absolute ban on their reaching the Throne. There is a real tension there, which the clause as it stands makes at least some effort to modify.

The 1772 Act had the draconian effect of voiding a marriage that lacked the monarch’s consent and it had become unworkable because of its extent, but it did have the virtue of certainty, which was needed then, as now. King George III’s seven sons between them entered into nine marriages—a case of nine brides for seven brothers. Three of them were in contravention of the recently enacted Royal Marriages Act and were therefore void, thus keeping the line of succession relatively tidy, if nothing else. I wish we could say the same for the new provision, but I fear that it could lead to great untidiness. The only argument that my noble and learned friend could offer in favour of exchanging the open-ended control of the 1772 Act for a list of just six, was that when Queen Victoria was born, she was fifth in line of succession and no sovereign had come to the Throne from further out than that. However, he chose a bad example and I would like to use that example to answer his case.

The remarkable thing about Queen Victoria’s circumstances was not that she started life so far out in the line but that she did not start much further out. After all, King George III had 12 surviving children, seven of them sons, so the succession must have looked pretty secure as they grew up. Of course, only six of them would have been in what one could call the “club of six” under the clause we are now considering. Indeed, half the King’s children would have been outside it, just as a third of Queen Victoria’s children would also have been outside it. I ask the House to consider how this club of six would have worked at that time.

In 1817, two years before Victoria was born, Princess Charlotte, daughter of the Prince of Wales and second in line to the Throne, died tragically in childbirth, along with her baby, who would have been third in line. King George’s sixth son, Prince Augustus Frederick, who would have left the club of six at her birth, would now have rejoined it. At the time, only three of the Prince’s brothers were married within the terms of the Act. They were all middle-aged and had no legitimate children. It suddenly became apparent that the succession was at risk. Within a year, three more of the brothers hurried into marriage, including Prince William, Duke of Clarence and St Andrews, and his younger brother, Prince Edward, Duke of Kent and Strathearn, who was then aged 50.

A year later, in 1819, Prince Edward’s daughter, Victoria, was born and at once become fifth in line to the throne. She would have been a member of the club of six, pushing her uncle, Prince Augustus Frederick, back out of the club. Eight months later, Prince Edward died suddenly; his daughter Victoria moved up to fourth in line and Prince Augustus Frederick would again have rejoined the club of six. Six days after that, King George III died, Princess Victoria moved up to third place and her youngest uncle, Prince Adolphus Frederick, who would have left the club of six at the age of 21, rejoined it at the age of 45. Eleven months later he was out of it again as his brother, Prince William, became father to a daughter, Princess Elizabeth. She took third position in line and his niece Victoria moved back down to fourth position. Less than three months after that, the infant Princess Elizabeth tragically died. Those below her, including Victoria, moved back up the line and Prince Adolphus Frederick—not to be confused with his brother Prince Augustus Frederick, still less with his other brother Prince Frederick Augustus—would have been back for the third time in today’s club of six. Fortunately for him, he had married in 1818 during one of his gaps in membership.

Within two years, Princess Victoria’s place in the succession had changed upwards and downwards four times. I recite all this simply to show that the line of succession to the Crown can easily involve an almost random element. The unexpected often happens, as my noble friend Lady Thatcher almost said. The highly improbable can quickly become the near certain. It also shows that the succession can move in both directions, up as well as down, and between late middle-age and infancy. Queen Victoria was 18 when she came to the throne, her predecessor was 64 and her successor was 59. Her circumstances were unlike any other before or afterwards but they demonstrate the unpredictability of the line of succession and therefore the need to provide for that when we legislate on the matter. We cannot predict what future circumstances will be, so we should leave a margin for error.

To my noble and learned friend, who attempts to justify six with the repeated argument that Princess Victoria was fifth in line at her birth, I point out that, in the terms of Clause 3, it is not her birth that is relevant or requires the sovereign’s consent but her marriage. By the time she married and would therefore have become subject to this clause, Victoria was already Queen herself. I venture to suggest that that indicates a bit of a design fault in the clause which might merit some attention.

The choice of Queen Victoria as a case to strengthen the Government’s case is, to say the least, unfortunate. Her example is, at best, irrelevant and it demolishes any rationale the Government have for confining the number in this clause to 6. As for the other explanation, that the choice of six was, as the Deputy Prime Minister admitted, arbitrary and pragmatic, that is not an argument but an apology. At Second Reading, I suggested that we should not think of the line of succession as a straight line of descent but rather in family groupings, and that is particularly so as life expectancy lengthens. All six places covered by this clause could be within the family of one son or daughter of the sovereign, which leaves other sons or daughters exposed in the event of a tragedy befalling the family of the heir apparent. The search for heirs might then need to move outwards, possibly encountering families who, for religious or other reasons, had to be leapfrogged to find heirs that fitted. A club of 12 would be more likely to avoid that. One could argue for more but I accept that 12 should be enough to put matters beyond a reasonable doubt, which six does not.

With or without my amendment, where there is a specified limit there will always be the possibility of those in the line of succession going on and off the nominated list like poor Prince Adolphus Frederick and not forgetting Prince Augustus Frederick. However, this amendment would move such comings and goings further away from the immediate line of succession and offer a better chance that the monarch’s immediate family would all be on the list, at least until they had passed the normal marrying age. I chose to table this amendment as it covered the one area of the Bill that could be improved quite easily and with little controversy. It does not frustrate the Bill’s purpose but is simply an amendment of detail. This detail does not, I gather, feature in the Perth agreement: perhaps my noble and learned friend can enlighten us on that. It could probably be quickly accepted by the Commonwealth realms without demur and it would show that this revising Chamber had done its job and not simply been a rubber stamp to a measure agreed over our heads.

It is an important change which addresses the danger of unintended consequences. As it stands, the list of six acknowledges a problem. I believe I have demonstrated that a list of six could be woefully inadequate. The amendment offers greater stability and less uncertainty in a matter where certainty is vital. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

We have not had the representations that one would expect to receive. I suspect that under the present law there are people who, understandably, do not know that, as a descendant of King George II, they are expected to get consent from the sovereign if they wish to marry. Indeed, we seek in this Bill to address the issue of those who have, as it were, unwittingly married.

The other important point perhaps addresses the point made by my noble friend about the European Convention on Human Rights. There are two issues here. First, the European Court of Human Rights has generally been very reluctant to engage in issues which go to the heart of a nation’s constitution and who should be their head of state. Secondly, unlike the 1772 Act, which made a marriage void if the consent of the Sovereign was not forthcoming, this does nothing so significant. It simply removes the person from the line of succession and the marriage will still be valid. It means only that the person who had not received consent would not take their place in the line of succession.

My noble friend Lord Lang asked where the number six arose from. Ahead of the Perth agreement my right honourable friend the Prime Minister wrote to each realm Government proposing changes to the law of succession principally with regard to the removal of male bias and the bar on the heir marrying a Catholic. At that point the realm Governments were also made aware of the issues surrounding the Royal Marriages Act and the view of this Government that it was outdated. Subsequent discussions with the realm Governments were led by New Zealand which concluded that it was in the public interest and reasonable and proportionate for those who are genuinely close to the Throne to seek consent to marry. To avoid the same problems presented by the Royal Marriages Act in attaching a monarchical consent requirement to the descendants of a specific monarch—at Second Reading I think that someone suggested that we could make it the descendants of George VI rather than George II; that was thought to store up problems for the future—the number six was proposed and agreed. My right honourable friend the Prime Minister then wrote to each of the realm Prime Ministers to confirm their consent to this provision.

I apologise that I was unable to respond to my noble friend Lord Trefgarne at Second Reading when he asked whether consent had ever actually been refused under the 1772 Act. So far as the Government are aware, there has been no instance when the sovereign’s consent to a royal marriage has been refused. My noble friend Lord Northbrook asked in relation to Amendment 14 whether the common law still applies to monarchical consent in cases such as the remarriage of a dowager queen. There is a good argument that the 1772 Act replaced all common law provisions on royal consent to marriages, but it also could be argued that because the 1772 Act applies to the descendants of George II, the common law requirement might conceivably still apply to members of the Royal Family who are not descendants of George II, for example in the remarriage of a dowager queen or a prince consort. But these instances would not affect the line of succession and it is important to recognise that what we are doing here relates only to that. The Bill is concerned with people who may become the sovereign, not with members of the wider Royal Family. It has a specific purpose.

As I say, no number will be perfect, but if one considers that, in the 240 years since the 1772 Act went on to the statute book, the furthest away in line from the Throne at the time when consent for marriage was sought was three; we are allowing for three more. I believe that the figure is a rational one and I would invite my noble friend to withdraw his amendment.

[Lord Lang of Monkton]

My Lords, I know that my noble and learned friend has a job to do, and that is to get this Bill through intact. I have no doubt that those are the orders he has been given and that the word “Resist” is printed on every page of his brief. The fact remains, however, that he must have heard the almost unanimous voices in this Chamber expressing their support for an expansion of the number from six. My noble friend Lord Northbrook offered an alternative of either four or zero. I would live with zero, but only if the provisions that still require the sovereign to be a member of the Church of England were withdrawn. That would remove the tension that this Bill otherwise builds into the royal succession; that is, between those who are allowed to marry Catholics and those who cannot inherit the Throne unless they are members of the Church of England.

My noble friends Lord Lexden, Lord Lyell, Lord Forsyth and Lord True gave some fine additional historical examples of the sort of problem that can arise in these circumstances. My noble friend Lord Lexden mentioned in particular the history of the gun pellets through the window at Sidmouth and that house in the rainstorm during which Prince Edward contracted an illness from which he died a week later, thus precipitating Princess Victoria up the line. There was another incident, I believe, when a pony and trap bearing the princess panicked and sped off, and she very nearly died. In answer to the question put by my noble friend Lord Lexden, if she had died, my belief is that Prince Ernest Augustus, the Duke of Cumberland and Teviotdale, would have inherited the Throne. He subsequently went on to become the King of Hanover where male primogeniture still predominated, when King George IV, I suppose it would have been, could not have inherited that Throne when it became vacant.

My noble and learned friend said some very kind things about what I have proposed and the arguments I advanced, but then proceeded to reject them without going further than talking about “arbitrary” and “pragmatic”. If I heard him correctly, he said that none of the historical characters I mentioned had reached the Throne. Queen Victoria reached the Throne, and he has not risen to that point.

[Lord Wallace of Tankerness]

My Lords—

[Lord Lang of Monkton]

Perhaps I may finish my argument before he denounces or deals with it. Queen Victoria would then have had to give consent to herself before she could have married Prince Albert. My noble and learned friend will argue, “Ah, but she would have been guided by Ministers”. Lord Melbourne was a pussycat who doted on Queen Victoria and he would not have said no. He had enough problems already with Lady Caroline Lamb. I shall give way to my noble and learned friend.

[Lord Wallace of Tankerness]

I apologise if my noble friend misunderstood me; I said that no one whom he mentioned, who had gone into the list of six, come out of the list and then gone back into it, had actually gone on to inherit the Throne. That was my point. Of course, Queen Victoria as Princess Victoria inherited the Throne, but I think that the idea of the sovereign giving consent to him or herself is one that has possibly arisen on other cases too. I cannot immediately think of what they were, but that is not even an anomaly; one cannot give consent to oneself.

[Lord Lang of Monkton]

If I burned the night oil I might be able to find an example. What my noble friend says simply underlines the fact that he did not answer the point about Queen Victoria having to give consent to her own marriage. That must be a fault in the Bill, and I ask him to consider it further before we reach Report.

My noble and learned friend concluded by saying that no number is perfect. I agree, but six is demonstrably imperfect. So much of this Bill has been shown to be ill considered and imperfect, creating anomalies and potential for long-term difficulties of a very considerable nature. When we legislate in a Bill of this kind, we are legislating not just for decades, but for centuries, and so many points have been made today that require further thought. I will withdraw the amendment, but I will consider whether I should bring it forward again on Report. I hope that my noble and learned friend will give very serious thought to what most people in this House—and, I believe, in the other place as well—consider to be an ongoing problem. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Succession to the Crown Bill

Lord Lang of Monkton Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Lang of Monkton]

My Lords, I enter this important debate with some trepidation. I cannot help wishing that the Deputy Prime Minister was able to say the same thing. A letter received by the Constitution Committee from the secretary to the Catholic Bishop of Nottingham criticised the,

“nonchalance with which the Deputy Prime Minister seems to be treating a Bill that goes to the very heart of our constitutional settlement”.

I agree. Legislating on the succession to the Crown is like performing open-heart surgery on our constitution: it needs great care.

As a member of the Constitution Committee, I share the view expressed in our report that a Bill of this kind should not have been fast-tracked. I am glad that the Government have to some extent relented, but I feel that the preparation of the Bill and the consultation upon it have also been fast-tracked. There has been no prior debate in Parliament, no pre-legislative scrutiny, no White Paper—we are presented with a fait accompli agreed by all the other Commonwealth realms. We are told it has been extensively discussed with those realms, but one cannot help suspecting that such scrutiny will have been confined to consideration of how these changes would fit into their own constitutional laws rather than the merits of the changes themselves.

Now, constitutional arrangements that have provided stability and clarity for three centuries are to be swept away in the blink of an eye. I do not wish to strike a discordant note, but it is hard to avoid the view that parliamentary scrutiny was not really wanted. I have no problem with the introduction of gender equality in the line of succession. It is in keeping with the mood of the times and does not seem to raise long-term problems for the Crown.

Freedom of religion is in principle a desirable aspiration, but of course this Bill does not provide it, and nor can it. The nub of the matter is that on the one hand it allows the heirs to the Throne for the first time to marry Catholics but on the other hand it leaves untouched the absolute ban on the Throne being occupied by other than a member of the Church of England. The dynamics of the Bill create an inescapable collision course. We may not know precisely what the unforeseen consequences will be or when they will emerge, but we may be sure that sooner or later they will emerge.

As neither a Catholic nor an Anglican myself, I have tried to view objectively the potentially destructive tension that is built into the Bill, but it seems to me that in a hereditary monarchy such as ours, the line of succession should be secure, settled, transparent, wholly predictable and with no room for doubt. The changes introduced by this Bill do not meet that test, and that may well place the stability of the monarchy at risk at some time in the future.

I would like to focus my remarks on two issues: first, the repeal of the Royal Marriages Act 1772, which could easily have been updated and modified, and its replacement with an arbitrary designation of the first six persons in the line of succession as requiring the monarch’s consent to their marriages; secondly, the change introduced in Clause 2, which will relax the ban on marriage to Catholics. Confining the requirement of marriage consent to six certainly narrows the field, but it increases the focus upon them. It thus condenses the problem. It jars with the relaxation of the ban on marriage to Catholics in a way that is at best unsettling.

Why six, one wonders? I ask my noble and learned friend what the rationale for this number is. In his opening speech, he mentioned Queen Victoria, who started life at five removes from the Throne. Well, six is one more than five, but that is hardly a considered basis for long-term constitutional change. The Deputy Prime Minister described the decision as being arbitrary but pragmatic. With great respect to him, I suggest that “ill considered” and “wrong” could equally well describe it. I believe that the number is inadequate because it does not bring certainty. There is a tendency to think of the succession in a linear way, with the Crown passing down tidally through the generations, but that is not the way it happens. Initial expectations often go unfulfilled. Henry VIII, for example, was a second son, Charles I was a second son, George V was a second son, and George VI was a second son.

One should instead think of the line in terms of family groupings and with wide age ranges within each. Let us consider in times to come, perhaps many years from now, the example of an heir to the Throne, No. 1 in the club of six. He or she may already be aged around 60 or more given the trend of life expectancy, married to an Anglican, and with three children and a couple of grandchildren. They are all club members. The future looks secure, but life is always fragile—and I did not list the ways in which disaster can befall a family.

The normal assumption seems to be that those in the line of succession could start their lives close to the Crown then move down the line and out of the club of six as time goes by. But it could happen the other way. In the example that I have given, the reigning sovereign’s second and only other child could suddenly find themselves back in the club of six and heir to the Throne, but while out of the club he or she had married a Catholic and they had Catholic children, who are therefore debarred.

So the line shoots out to nephews and nieces of the sovereign and their children, who have been living relaxed and normal lives in who-knows-what marital and religious circumstances, with no expectation of being brought back into the club of six in which some of them may have started their lives. We would even end up with a succession by leapfrog, finding Anglican heirs each surrounded by their Catholic families.

Perhaps I exaggerate the risk of this kind of instability, but perhaps not. Six, I suggest, is not enough if we want a settled, stable line of succession of which we can be certain—12 perhaps, but not six. I understand that the number of six was not mentioned in the Perth agreement and ask my noble friend whether the Government might be receptive to an amendment to that effect.

On the issue of religion, we are told that both churches have expressed acceptance of the Bill. The Catholic Church has nothing to lose and everything to gain from it. Anglicans, however, have everything to lose and nothing to gain, so I fear their position says more for their generosity of spirit than for the worldliness of their wisdom.

In fact, the clause covering sovereign’s consent does not mention Catholics, but by specifying no religion it opens the door somewhat furtively to a potential ban in the hands of the reigning monarch on any of the first six in line at any one time from succeeding to the Throne, not because a Catholic spouse might be involved but for whatever reason or whatever religion the monarch chooses. Far from being a restriction, that is quite a substantial extension of their power.

In our constitutional monarchy—the noble Baroness referred to this—the monarch acts on the advice of Ministers, but given the very personal and familial nature of the decisions taken, involving some of but not necessarily all his or her own children, one can readily see how painful these decisions would be for the monarch and how easily controversy and crisis could alight on the head of the sovereign of the day. That is not a recipe for stability, or for happy families.

We know from the Minister’s statement during debate in another place that anyone who has ever “professed” the Catholic faith is barred from ever succeeding to the Throne. That seems to be definitive and to rule out a change to Anglicanism for those royal children who started as Catholics, again raising the possibility of block disqualifications from the succession. In his oral evidence to our committee, however, the Deputy Prime Minister indicated that the Catholic Church’s attitude had changed so that the royal children of a Catholic parent could be brought up solely as Anglicans and thus remain in the line. He told us:

“There is a lot of flexibility”.

The secretary to the Catholic Bishop of Nottingham disagreed. His letter to us told us that,

“there is still a presumption that the Catholic party in a so-called ‘mixed marriage’ will promise to have their children baptised and brought up as Catholics”.

I know that my noble friend referred to this, but I make no apology for repeating it as it is important. He quoted to us the detailed rules from Canon 1125 of the Code of Canon Law, which are indeed robust. For good measure, he added:

“Should a Catholic spouse of a future sovereign wish to bring up their children as Catholics, a constitutional crisis would surely ensue”,

so having a word with your local bishop might not get the right result.

Frankly, that is no way to contemplate the line of succession to our country’s Crown. The Deputy Prime Minister has cheerfully suggested that negotiations for a dispensation could be opened with the Vatican. I noticed that my noble friend was slightly backing off from that position today. Perhaps one could appeal to the Pope, and I suppose the Pope might say yes, but he might say no. After all, there is not a great deal of support in the Vatican for gender equality or religious freedom.

Anyway, I seem to remember that in 1533 Parliament passed an Act in Restraint of Appeals to Rome, which was part of the process whereby England underwent the Reformation. I would not go so far as to suggest that the consequence of this Bill might be to unpick the Reformation, but to encourage the British Royal Family to appeal to Rome in matters affecting the succession to the British Crown seems rather to cut across the history of the past five centuries.

In conclusion, this is not a well made Bill. It defers to the zeitgeist in matters of gender and religious freedom, at the expense, in the latter case, of stability and certainty. I believe that as a result of it pressure is bound to grow over time to allow our sovereigns to have a free choice of religion. Whether that is right or wrong, that would bring with it a sea of troubles. Church and monarchy in this country have been closely linked since almost as long as these two institutions have existed, long pre-dating the matters that we are tinkering with in the Bill. In each reign, the bonds are renewed and made manifest in the coronation oath and the anointing of the new monarch. This little Bill, hurried through Parliament, could well turn out to be a halfway house. I fear it does a disservice to both church and monarchy and casts an unsettling shadow over the future.

--- Later in debate ---

[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.