Scotland: Constitutional Settlement

Lord Lexden Excerpts

Tuesday 10th March 2015 Lords Chamber

Asked by

[Lord Lexden]

To ask Her Majesty’s Government what assessment they have made of the public reaction to their Command Paper Scotland in the United Kingdom: An enduring settlement.

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

My Lords, the Government welcome feedback on the draft clauses as we continue to refine the draft legislation. We are holding events across Scotland to enable stakeholders to provide feedback on the draft clauses and how the new powers might be best used. Four events have taken place to date, with a further event in the borders later this month. Representatives from a wide range of sectors are participating, including from business, the voluntary sector, universities and schools.

[Lord Lexden (Con)]

Can my noble and learned friend explain how the Government’s proposals will provide a basis for an enduring settlement when the Scottish National Party is demanding yet further concessions? Is it not obvious that we need a new constitutional settlement, an explicitly unionist settlement, for our entire country, not further piecemeal changes in different parts of it, devised with short, artificial deadlines? When will our national leaders of all parties summon up the eloquence and conviction that is needed to make the case for an enduring union, which so many of us in this House, in the other place and throughout our country hold so dear?

[Lord Wallace of Tankerness]

I entirely agree with my noble friend on that need. The best way forward is to have an enduring union, to which I am certainly committed. The proposals in the White Paper which the Government produced at the end of January give effect to the agreement reached under the commission chaired by the noble Lord, Lord Smith of Kelvin. Not to have acknowledged and fulfilled the commitment given to the electorate would have been more damaging to the union. I have taken part in numerous debates in your Lordships’ House where noble Lords from all sides have called for a constitutional convention. That may well be the way forward after the election.

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

Lord Lexden Excerpts

Thursday 26th February 2015 Lords Chamber

[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.

[Lord Lexden (Con)]

Would my noble friend like to comment on a point that has already been made: namely, that if 16 year-olds have the right to vote, should they not also have the right to stand as candidates? Will he give his views on that?

[Lord Purvis of Tweed]

There are two aspects to that. The first is the desire of young people themselves. For many years a consistent theme in campaigns to give people the vote at 16 is that participating in the democratic process does not automatically assume that exactly the same process should apply to those who are elected to Parliament to make these decisions. That comes from young people themselves. Secondly, the age of majority is not necessarily applied consistently as regards young people’s rights and responsibilities. For example, different approaches are taken as regards the minimum age at which one can drink alcohol, drive, join the military or buy knives. Today, we are discussing the specific issue of the enfranchisement of 16 and 17 year-olds. The age of majority and whether young people of 15, 16 and upwards should be granted other rights and responsibilities is quite rightly an area which we continue to debate—and which young people themselves continue to debate. I see that my noble friend is itching to intervene and I am delighted to give way.

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[Lord Stephen]

I agree that there is great logic in the argument that has already been put forward in the exchange with my noble friend Lord Purvis about the age of consent, the age for voting, the age for driving, the age for marrying and the age for watching a film with an 18 certificate. We should be reviewing these things, but I am making a practical point. There is a strong argument for much greater consistency and I firmly believe that today’s measure can be part of driving that argument forward and can be the beginning of further change for the rest of the UK. That is why I think that today’s moves are very important. It is almost as if we have flushed out the position of some noble Lords that they do, in fact, support the extension of the franchise to the age of 16, and I warmly welcome that. As Peers and as politicians, we should spend more time engaging with young people, encouraging them and being positive about them. Too often in politics we tend to demonise young people and do them down, and that is a concern of mine.

I finish by paying tribute to Lord Mackie of Benshie, who, sadly, passed away last week. He had an incredible war record. Without people like him, the democracy that we have today simply would not exist. He had an incredible track record both in the House of Commons and in this House. My recollection of him is as a mentor. I got involved in politics at a very young age. I was 22 when I was first elected to the council, and very quickly after that I got involved in campaigning with Lord Mackie of Benshie, who was the president of the Scottish Liberal Party. He was a big influence in my life. I have no idea what his views on these issues would be and I do not pretend to set down his opinion, but I am sure he would be delighted that we are debating this issue and trying to engage more young people in politics, because that is what he did with me. He was very much a mentor, a counsellor and somebody who inspired my place in politics; and each of us can have that role for other young people. The tenor of the debate that we have on these issues is very important. That is why I believe that this Motion should go forward for approval.

[Lord Lexden]

My Lords, I have listened with tremendous interest to this debate and with the utmost appreciation for the wonderful exposition of the unionist case from my noble friend Lord Forsyth. One point above all has been borne in upon me: the absolute need for a consistent voting age throughout our country. It is a question of deep principle. Surely that is what we need to settle. Against that background, would it not be appropriate for the Government to withdraw this order, to secure—although, of course, it cannot come immediately—a proper parliamentary decision on the voting age? That should surely come first. That point will stay with me above all from this tremendously enjoyable and important debate.

[Lord McAvoy (Lab)]

My Lords, let me come to the aid of the Government. I have really enjoyed the debate and want it to go on longer, but I think we might be getting to the time when we are pushing our luck. I will be relying very heavily on the speech made by Margaret Curran in the other place: a brilliant exposition of the Labour Party position on this issue and on this methodology. I understand the concerns raised about the methodology and I will deal with that later in what I have got to say.

As Margaret Curran said, it is worth remembering that the referendum was decisive in what it decided: to stay within the union. It was also decisive in looking for change. Here I must say that it is easy for people to demonise and insult Gordon Brown, but he is a giant of the international stage, a giant of the Westminster stage and a giant of the Scottish stage, and people who nark away are pygmies in comparison. He came forward almost single-handedly at a time when the future of our country as a member of the United Kingdom was in doubt. It is easy to deride some of his actions, but I am one of those who take the view that, had it not been for the highly significant intervention of Gordon Brown, the outcome of the referendum may not have been so decisive. The call for change is certainly there. That referendum resulted in a degree of consensus on new powers for Scotland, coalescing around the Smith commission.

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[Lord McAvoy]

I am grateful to my noble friend Lord Reid of Cardowan. I was coming to the Better Together campaign, but Gordon Brown was specifically mentioned and that is why I led with offering my thanks and congratulations to him.

[Lord Lexden]

Given that there has been considerable comment about Gordon Brown, does the noble Lord endorse his latest requests for movement beyond the Smith commission? Does he endorse Mr Brown’s latest utterances?

[Lord McAvoy]

I have not studied them in detail so I am not quite sure. However, we are dealing with this measure today.

On my noble friend Lord Reid’s point, Alistair Darling led the campaign, Jim Murphy went round the country with his Irn-Bru crates and a large number of other people were also involved. One of the hidden powers behind the transformation of the Better Together campaign was my honourable friend Frank Roy, MP for Motherwell and Wishaw, whose training in the Whips’ Office came through in spades and he certainly helped to deliver. I hope that completes the panoply of people I have to thank for the result.

I have mentioned Ruth Davidson—she was fine—and I am trying to think of a Liberal I can mention, but I will move on.

Scotland: Draft Legislation

Lord Lexden Excerpts

Thursday 22nd January 2015 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, what we have done is put the Sewel convention on to a statutory basis. The noble Lord can see how it has been set out, although it may not immediately be clear from the clause. However, it has been added after Section 28(7) of the Scotland Act 1998, which makes it clear that the Westminster Parliament can still legislate.

[Lord Lexden (Con)]

My Lords, is it not obvious that today’s proposals are bound to increase the demand for English votes for English laws, on which the Government have produced no firm proposals at all? As to Mr Gladstone and home rule all round, that was not his plan. It was the brainchild of the great unionist, Joe Chamberlain.

[Lord Wallace of Tankerness]

I think he changed his mind after that, but I salute my noble friend’s historical knowledge. There is a legitimate issue here. As I have indicated, last December the Government published a Command Paper, but there would not appear to be any consensus. Three versions have been produced by the Conservative Party, including one from my noble friend Lord Norton of Louth, and there was one from the Liberal Democrats. It is clear that there is no consensus, but there is consensus on what we are proposing today.

Scotland: Devolution

Lord Lexden Excerpts

Wednesday 29th October 2014 Lords Chamber

[Lord Lexden (Con)]

It is an enormous pleasure to follow a most distinguished member of one of Ulster’s oldest families with strong family links, as we have heard, throughout the United Kingdom. I take the view that the union on which our great country is based gained no more than a reprieve in the recent referendum. I could not disagree more with those who say that the referendum result made the union secure for a generation. We face the extraordinarily difficult task of putting our United Kingdom on a secure, long-term basis for the future to preserve it for the generations that are to come. Above all, we must work to infuse all four constituent parts of our country with a sense of common purpose which they have increasingly lacked as devolved institutions develop separately from one another in three of the four parts. That should be done by revivifying unionism, of which my noble friend Lord Lang of Monkton and others spoke eloquently in the debate in January.

Once upon a time unionism was practised successfully by the Conservative and Unionist Party, particularly in the days when it was known simply as the Unionist Party, a name which it retained in Scotland until 1965. The Conservative Party needs to recover its unionist mission, and fast, just as the leaders of all political parties need to recover a sense of statesmanship, the central point in the truly brilliant speech made by the noble Lord, Lord Hennessy.

I hope that I will be forgiven for dwelling a little on certain aspects of the past, which provide one or two useful points for the present. The extraordinarily difficult constitutional terrain in which we now find ourselves was very familiar to our country’s politicians in the 30 years before the First World War, as they grappled unsuccessfully with the problem of putting the Government of Ireland on a secure long-term basis within the union.

The Irish home rule proposals brought forward by Mr Gladstone in 1886 to provide for limited devolution to a Parliament in Dublin at once exposed to view the central difficulties of Westminster representation and taxation. Mr Gladstone anticipated Tam Dalyell and Enoch Powell by nearly a century. His notes for the great speech in which he introduced the first home rule Bill in April 1886 contained poignant words of enduring interest. He said:

“Ireland is to have a domestic Legislature for Irish affairs”,

and “cannot come here” for,

“English and Scotch affairs … The one thing follows from the other. There cannot be a domestic Legislature in Ireland dealing with Irish affairs, and Irish Peers and Irish Representatives sitting in Parliament at Westminster to take part in English and Scotch affairs.”.—[Official Report, Commons, 8/4/1886; col. 1055.]

Scotch, incidentally, was a widely used alternative to Scottish before it became confined to the most delicious beverage known to man.

Gladstone offered the proposed Dublin Parliament very limited powers of taxation. Reluctantly, he reconsidered his initial plan for the total exclusion of Irish representatives from Westminster. His second home rule Bill in 1893 proposed to cut the number of Irish MPs at Westminster from more than 100 to 40 but without restricting the matters on which they could vote. The same approach was embodied in the third home rule Bill, which Mr Asquith introduced in 1912. Indeed, this was the way in which the issue was settled in 1920 when Northern Ireland’s devolved Parliament was created. Ulster was given 13 MPs, significantly fewer than its population warranted, with a subsequent reduction to 12 when university representation was abolished. The arrangement gained general acquiescence with occasional protests from the Labour Party. It is a point on which we need to reflect.

Significantly, no one in the late 19th century contemplated for long the approach which so many favour in relation to Scotland: arrangements to prevent MPs from Ireland voting at Westminster on matters that were to be devolved to Dublin. Gladstone toyed with the idea but swiftly rejected it. Not for him, not for that generation, was the notion of two categories, two classes of MPs, to be seriously entertained. For my part, I strongly deprecate it as incompatible with a successful union settlement.

It is perhaps a source of some comfort and some relief to recall that the severe constitutional difficulties with which we now wrestle absorbed great political intellects in the past. In the end, they found it impossible to devise a constitutional framework that would satisfactorily reconcile devolution with the existing dispensation at Westminster. Will we in the end be led to the same conclusion? If so, we will find that there is another great figure in the unionist tradition from this period who can help us.

This year marks the centenary of the death of Joe Chamberlain, the radical firebrand who entered into alliance with the Conservatives to preserve the union. He said that it could only be done on a federal basis. There was no other way of reconciling devolution with constitutional harmony and fairness.

Speaking at the inaugural meeting of his National Radical Union on 17 June 1886, Joe Chamberlain said that in any rearrangement of our constitutional system we are bound to see that new provisions are so devolved as to be applicable to Scotland, Wales and other parts of the United Kingdom as well as Ireland. In the weeks since the Scottish referendum and the announcements of further devolution to Edinburgh, I have found myself wondering more and more whether Joe Chamberlain should perhaps be our guide at this grave hour in our nation’s constitutional history.

Succession to the Crown Act 2013

Lord Lexden Excerpts

Wednesday 26th February 2014 Lords Chamber

Asked by

[Lord Lexden]

To ask Her Majesty’s Government when the Succession to the Crown Act 2013 will be brought into effect.

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

My Lords, the Succession to the Crown Act will be commenced when each Commonwealth realm has taken all steps necessary to give the changes effect in its jurisdiction.

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[Lord Lexden (Con)]

I thank my noble and learned friend, who is the master of the intricacies of this legislation. Can he reaffirm that it is absolutely essential that this modernising constitutional change is implemented—and implemented fully—in all 16 realms of which Her Majesty is head of state to ensure that the Crown descends in exactly the same way in all of them. Does my noble and learned friend have any reason to anticipate that any of the realms might ultimately default on their obligations under the Perth agreement?

[Lord Wallace of Tankerness]

My Lords, I entirely agree with my noble friend that it is important that all 16 realms agree. Indeed, the intention is that when they all have put in place the necessary legislation there will be a simultaneous order to give effect in each of the realms. I make it clear that all realms that took the view that legislation is required have passed the requisite legislation, with the exception of Australia. As I informed your Lordships’ House at Third Reading, the Council of Australian Governments agreed that respective states would legislate first, requesting that the Commonwealth legislation be brought forward by the Canberra Government. To date, three states have enacted legislation; two have introduced legislation; and South Australia has yet to introduce legislation because it is in the middle of an election campaign.

Succession to the Crown Bill

Lord Lexden Excerpts

Wednesday 13th March 2013 Lords Chamber

[Lord Berkeley]

My Lords, this amendment was tabled in Committee. My purpose in tabling it again today is gently to take issue with the Minister on one aspect of his letter to noble Lords dated 7 March in connection with the title of the Duke of Cornwall. Before I do that, I draw your Lordships’ attention to this wonderful statement on page 2 of his letter, which says:

“The Crown is the source of all honour and dignity”.

That is absolutely wonderful. It reminds me of the inhabitants of the town of Titipu in “The Mikado”, who defer to the Lord High Executioner. I wish we could move on from some of the Crown’s “all honour and dignity” because part of the Crown is the Government, as we all know.

Turning to the issue I want to raise, page 1 of the Minister’s letter states:

“The title of the Duke of Cornwall can only pass to the eldest son and heir of the monarch”.

I have had some interesting advice from a public notary called John Kirkhope, who is a real expert on these issues. He challenges this statement. He says that the charter establishing the Duchy of Cornwall was dated 1337 and is in Latin. He has kindly given me a 14-page translation, which I will not read out, but if the Minister wants a copy I will be pleased to give him one. Basically, he says that there is precedent for other options besides what the Minister says in the letter. Mr Kirkhope says,

“if I am King and have two sons A and B, A would be Duke of Cornwall. If A dies before becoming King making B Heir Apparent, B would not be the Duke of Cornwall”.

However, he goes on:

“The eldest son of Henry VII, Arthur, died before becoming King leaving his younger brother Henry as Heir. Henry VII got Parliament to agree that his son Henry should become Duke of Cornwall. The eldest son of James I, Henry, died before becoming king leaving a younger brother Charles. In this case James I got the courts to agree that Charles should become Duke of Cornwall”.

It seems that in those days the eldest living son of the sovereign would become heir to the title of Duke of Cornwall, so the devolution of the title has already been varied from that envisaged in the founding charter. I cannot see why this variation should not be applied today. It is consistent with the devolution of the Duchy of Lancaster, the title of which is always with the sovereign, regardless of gender. I suggest that it would be perfectly reasonable for Parliament simply to change the rules to say that the heir to the Throne is the Duke of Cornwall. I beg to move.

[Lord Lexden]

My Lords, we are deeply indebted to the noble Lord, Lord Berkeley, for raising this important matter again. A valuable discussion took place in Committee, drawing attention to the fact that the Duchy and its properties tend to flourish most conspicuously when they have a Duke in charge of them. They have been particularly blessed and fortunate in this regard since the 1950s with the current Duke, the Prince of Wales, at the helm. Incidentally, this was also true under the previous Prince of Wales and Duke of Cornwall, who later and briefly became Edward VIII. The tenants of his Kennington estates were the envy of those who rented their homes from London County Council.

Our discussion in Committee also established that the experience gained by the heir to the Throne in administering the Duchy estates is invaluable in equipping him for his wider duties. So why not for “him” read “or her”? The noble Lord, Lord Berkeley, has consulted experts, as he told us, about the Duchy’s founding charter laid in Parliament in 1337. It is clear from what he has told us today that the charter has not remained inviolate over the centuries. Should Parliament not be invited to change the charter again, to incorporate the principle of gender equality, which is one of the founding principles of this Bill? The Bill itself may not be the vehicle for making the change. If not, will my noble and learned friend give a commitment that a measure to provide for it will be introduced? Its rapid progression through both Houses could hardly be in doubt, although I hesitate to use that dreaded term “fast-tracked”.

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I really hope that the Minister and the noble Baroness on the Opposition Front Bench, who seems disappointingly unkeen to hear arguments for flexibility in this, will consider it carefully. This is not a core item to the agreement. It seems entirely sensible and would avoid potential problems. I will support my noble friend if he presses the amendment, but I hope he will be heard by my Front Bench.

[Lord Lexden]

My Lords, I support this amendment very strongly. Briefly, my points follow closely those of my noble friend Lord True. By extending from six to 12, the measure would reinforce the sense of family and the obligations that go with it. These are especially important where the Royal Family is concerned. In giving approval for the marriages of his or her blood relatives, the monarch can surely expect to bind them more closely to the Crown and the public duties that it imposes. For that purpose, it is surely appropriate to have 12 blood relatives in this category, rather than six.

Bagehot, the great Victorian constitutionalist, laid great stress on the benefit that Britain derived from a Royal Family of significant size which, under Queen Victoria, inspired great respect, following the disreputable family of George III. I suggest that to maintain and strengthen that tradition, it would be right to increase to 12 the number in the line of succession who would need to seek the approval of the monarch.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, support this amendment. Twelve seems to me an eminently sensible and, indeed, a hallowed number. There were 12 tribes of Israel, 12 apostles, 12 members of the jury and there used to be 12 pence in the shilling. Perhaps more importantly, one asks: what is the downside of 12? If those who are ranked seven to 12 do not rate their chances of succession, or if perhaps they do not want to succeed, their remedy is perfectly simple: they do not ask Her Majesty for consent and the statute automatically then disqualifies them. It is only Her Majesty who might suffer the problem of having to consent—if consent is sought—to so many more marriages and I am sure she would not mind.

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[Lord Wallace of Tankerness]

My Lords, my noble friend makes an important point about the simultaneous implementation of these provisions in all the realms of which Her Majesty is Queen—and clearly for the right reason, as he gives it. It would not be helpful, nor would it be the policy intent of any of the realms that have agreed to this, that there should be divergence between different realms as to the head of state. Indeed, it is the intention that the effect will be given once all the realms have done what is necessary before the Bill is brought into force, as indicated in response to Amendment 5. I noted the interest that the House has taken as to how changes will be given effect in the different Commonwealth realms, and I have given an undertaking that the Government will lay a Statement before Parliament ahead of the commencement order to indicate how the realms have given effect to the Perth agreement.

It may help the House if I give an update on how the other realms are taking forward these changes. I have referred before to the preamble to the Statute of Westminster 1931. It states:

“And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”.

This being part of a preamble and not being in the body of the Act, these words impose no legal obligations. However, the Government recognise that they carry considerable political weight and as such have undertaken to agree these changes with other realms’ Governments and to seek their consent to the legislation before introducing it into Parliament.

The New Zealand Government have co-ordinated this discussion, which culminated in all realms giving their written consent to the introduction of this Bill and their assurance that, based on the Bill as drafted, they were in a position to give the policy the same effect in their country. In doing so, some realms decided that legislation or parliamentary consent was required. Others have been clear that no further steps are necessary and that the changes will be brought about by the changes effected by the United Kingdom Government. In our view, it is in accord with the principle of the Statute of Westminster that it should be for each realm to decide what, if anything, is necessary or desirable to give effect to the agreement. Thus, although the preamble refers to the assent of the Parliaments of the dominions, we do not believe that it is for the United Kingdom to insist that parliamentary approval is obtained. I can confirm that in the case of some realms a referendum is necessary before changes to their constitution are made. However, we are not aware that any realm intends to amend its constitution, so the question of its undertaking a referendum on this issue does not at present arise.

As regards the detail of each realm, the Pacific realms of Papua New Guinea, Tuvalu and the Solomon Islands are all content that because of the wording of their constitutions no changes to their laws will be required to implement the changes to the law of succession in their respective countries. We do not believe that they intend to consult their Parliaments further on this matter.

As regards Australia, on 7 December 2012, in a meeting of the Council of Australian Governments, the Prime Minister, state premiers and territory chief ministers reiterated the support of all Australian Governments for the changes to the rules of royal succession proposed by the United Kingdom. Australia has not yet reached agreement with all states and territories on the specific method of implementation in Australia but legislation will be required, probably at both Commonwealth and state levels. Indeed, Queensland has already introduced its own Succession to the Crown Bill.

The New Zealand Bill was introduced on 18 February and its provisions mirror those of the United Kingdom Bill, although it additionally amends, where necessary, New Zealand specific legislation: for example, the Imperial Laws Application Act 1988.

The Canadian Bill has now been introduced into the Canadian senate. The Canadian Government’s view is that the laws of succession are UK law and not Canadian law. The Canadian Bill therefore does not seek amendments to the rules of succession. Instead, the Bill states that Parliament has assented to the changes set out in the United Kingdom Bill. The Canadian Bill will come into force on a date set by an Order in Council.

Jamaica and Belize have stated that, based on the nature of their constitutions, no legislative change will be required to give the changes effect domestically. We do not believe that they intend to consult their Parliaments further on this matter. The relevant oaths under the constitutions of Jamaica and Belize make reference to:

“Her Majesty Queen Elizabeth II, Her Heirs and Successors, according to law”.

The constitutions do not contain any express provisions defining “Her Majesty” or setting out the rules of succession, but we understand that Jamaica and Belize take the view that the reference in the oath to the heirs and successors of Her Majesty is to the heirs and successors under UK law—or, in other words, that it is implicit in their constitutions that the question of succession to the Crown in right of Belize and Jamaica is resolved by the law of the United Kingdom.

We believe that it would be open to the other Caribbean realms to take a similar view, but it is, of course, for them to decide how best to give the changes effect. The United Kingdom and New Zealand are in ongoing discussions with each realm to support the work they are doing.

I thought it would be useful to put that on the record because I know that in earlier debates interest was shown in that matter. I reiterate that it is intended that these measures will come into effect at the same time when all the realms of which Her Majesty is head of state have concluded their appropriate arrangements. In responding to an earlier debate, I indicated that the Government would make a Statement to Parliament prior to introducing the commencement order, indicating what has happened in each realm. Indeed, the reason why there is flexibility in the commencement order is to achieve that very purpose. In light of those comments, I hope that my noble friend will feel able to withdraw his amendment.

[Lord Lexden]

Before my noble and learned friend sits down, has he any view as to the earliest possible point when the realms will have completed their work and the measure can be implemented?

[Lord Wallace of Tankerness]

No, my Lords, I do not, and I do not think that I would help the House if I tried to speculate.

Succession to the Crown Bill

Lord Lexden Excerpts

Thursday 28th February 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I support the amendment. I do so because many years ago when I was a struggling barrister, I was appointed Attorney-General to the Prince of Wales, which carried with it also being Attorney-General to the Duchy of Cornwall. Therefore, I do have some—albeit from rather long ago—experience of what the Duchy of Cornwall is and how it works.

In his reply to the Second Reading debate, the noble and learned Lord made three points, at column 830, about how the Duchy of Cornwall would be affected if this Bill becomes law, as I hope it will. I very much apologise that I was unable to be present, but I was abroad. First, he pointed out that Princess Elizabeth, when heir to the Throne, did not become the Duke of Cornwall. Secondly, he pointed out that if the Bill becomes law and the heir to the Throne is a daughter, the title would go into abeyance in the ordinary way. Thirdly, he pointed out that if the heir to the Throne is a daughter, she will not suffer financially from the title going into abeyance because of the Sovereign Grants Act 2011, to which the noble Lord, Lord Janvrin, had drawn attention during the debate.

As to the first point, it is of course true that the title fell into abeyance when Princess Elizabeth was heir to the Throne. As to the third point, it is clear that the heir to the Throne will not suffer financially anyway, so to some extent we can disregard that as a relevant point. However, I question the second point, and whether there is any need for the title to go into abeyance. Why, I ask the noble and learned Lord, should it?

It seems to me that to enable the heir to the Throne to become Duke of Cornwall if female is the logical extension of the provisions of this Bill. It is within—if only just—the royal title. Obviously, there is no difficulty in a female heir to the Throne being called the Duke of Cornwall because, as we all know, the Queen is also the Duke of Lancaster. In addition to what I submit is the logical extension of this Bill, there is a practical reason why I support this amendment.

I remember very well meetings of the Duchy council, which the Prince of Wales, then a very young man, would always attend. He took a close interest in the affairs of the Duchy. One must remember that we are not talking about just a paper title but a large estate and what has become a large business in recent years. It is my belief that the Prince of Wales’s experience in chairing the Duchy council and dealing with a large estate and matters of business has served him very well in subsequent years.

That experience, which has served the present Prince of Wales well, should not be denied to a future heir to the Throne if she is a woman. In fact, one might almost say it is all the more important that she should, as heir to the Throne, have the sort of experience that the present Prince of Wales has had. I hope that that experience will become available irrespective of the gender of the heir to the Throne. This may come as a bit of a surprise to the noble and learned Lord, but perhaps he will consider the matter and take advice from the Duchy of Cornwall itself if necessary—I could perhaps give him advice—that this is a sensible extension of the Bill.

[Lord Lexden]

My Lords, I, too, support this amendment and will add a small footnote to what the noble and learned Lord, Lord Lloyd, has just said. I understand that an amendment would be needed to the Duchy’s founding charter, drawn up in 1337, to enable a female heir to inherit. As the noble and learned Lord, Lord Lloyd, stressed, this is a Bill that provides for gender equality. If that principle is to be fully and completely embodied in it, action must surely be taken to revise the founding charter of the Duchy of Cornwall so that a female heir to the Crown can succeed to it.

As the noble and learned Lord, Lord Lloyd, so wisely pointed out, there is a further practical consideration. If the Duchy is not held by an individual but placed in abeyance and administered by its council, there is a real risk that its affairs will not be administered with efficiency and skill. There is a strong view held by many that the absence of a Duke of Cornwall between 1936 and 1958 led to a serious decline in the running of its estates and other properties, a decline from which the present Duke, now the Prince of Wales, successfully rescued it. For these reasons, I support this amendment.

[Lord Mancroft]

My Lords, I, too, support my noble friend’s very important amendment. I was going to make the point that I have heard repeated again and again—which my noble friend Lord Lexden has made very strongly for me—that not only does the Duke of Cornwall need a Duchy but the Duchy needs a Duke. Estates, businesses, or whatever you may choose to call them in the modern day and age, that are run by councils, groups of trustees or boards of directors are all very well but in the case particularly of a large agricultural estate such as the Duchy or Cornwall—and there is none larger or better run—the present Duchy of Cornwall runs so well because the Duke of Cornwall has taken such an interest in it, and if there were not a Duke, regardless of that Duke’s sex, I think that would not happen. My noble friend Lord Lexden’s point is absolutely valid.

Another point that has been made, which I will repeat, is that the splitting apart of ancient titles is unsatisfactory and untidy. In dealing with important constitutional matters, although these are technicalities and perhaps of interest only to historians, politicians and noble Lords who can be bothered to spend their Thursday afternoons in your Lordships’ House, they are important matters and need to be done tidily. I do not think they are done tidily in the Bill.

Lastly, when my noble and learned friend Lord Wallace responds, will he assure the House that the Duke of Cornwall—the Prince of Wales—was consulted over this and that he is comfortable with the way in which the Bill is going forward? I do not wish my noble and learned friend the Minister to breach any confidences or step outside the correct procedures but it would give comfort to the House to know that the Government had consulted His Royal Highness and that the Duchy and the council and the Duke of Cornwall himself were comfortable with the way in which this is proceeding.

Succession to the Crown Bill

Lord Lexden Excerpts

Thursday 28th February 2013 Lords Chamber

[Lord Elton]

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

[Lord Lexden]

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

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

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

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

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

[Lord Lyell]

My Lords, perhaps I may chuck a very small pebble into this debate. My noble friend Lord Lang gave the most marvellous dissertation, but I would advise your Lordships to take care to skip along to the Library to take a glance at either Burke’s or Debrett’s Peerage. Your Lordships should look, above all, at the consanguinity and the very long chance of the arm of the blood relationship. Your Lordships may not be aware that Queen Elizabeth the Queen Mother was the ninth child of the Earl of Strathmore. The eighth child was the grandfather of the current Earl of Strathmore. In that bloodline, it shows that there is a very long list of candidates, which might even rival that of my noble friend Lord Lang. I do not think that six is enough and perhaps one day, my noble and learned friend will be able to explain to me what I seem to remember from my earlier studies of Scottish law, when women come into the law of succession, which may have been changed. Would my noble and learned friend, let alone my noble friend Lord Lang, please take note that six is not enough?

--- Later in debate ---

[Lord Wallace of Tankerness]

Unlike in your Lordships’ House, where every amendment tabled can be debated, amendments are selected in the other place by the Speaker. The system is different. I will not argue which is better, but I find it worth while in your Lordships’ House that we can go through every amendment that is within scope and debate it. It helps us to undertake the scrutiny role which is appropriately ours. I hope that your Lordships feel that the time allocated to this Bill and the proper phasing of it through the different stages is appropriate. As I have already said, the realm Governments were alerted to the drafting change, were given an opportunity to comment and all expressed satisfaction with it.

[Lord Lexden]

I shall belatedly put my question about what my noble and learned friend was saying about the passage of the legislation in the other realms. Should one infer that if anything goes wrong in any of these realms and the legislation is not implemented, then the legislation falls everywhere and will not be implemented in this realm?

[Lord Wallace of Tankerness]

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

Succession to the Crown Bill

Lord Lexden Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Lexden]

Walter Bagehot wrote in 1867 that,

“one-half of the human race cares … fifty times more for a marriage than a ministry”.

So it came as no surprise at all when this coalition ministry decided that the immensely popular marriage of the second in line to the Throne should be followed by fundamental reforms of the monarchy, which had been under discussion for some years—indeed, as the noble Lord, Lord Luce, reminded us, for decades. The reforms overturn some of the principles on which our monarchy has rested, for the most part securely, since the Reformation nearly five centuries ago, principles strengthened and extended under the 1689 settlement. The changes are therefore of profound importance.

The coalition ministry is to be congratulated on securing for them the full support of the 15 other Commonwealth countries of which Her Majesty the Queen is head of state. However, little has been heard of the progress that the 15 are making in implementing these fundamental changes. Those who have been following events in the 15 do not report consistent vigour and diligence. Despite progress made in Canada, to which my noble and learned friend the Minister alluded at the outset, doubts have been expressed about whether the necessary assent will in fact be forthcoming from all of them. The Government’s most laudable aim is that the new era in the world’s greatest monarchy, which is now foreshadowed, should begin simultaneously in all 16 realms. It would be useful to hear from my noble and learned friend today when the point of common action envisaged by the Government is likely to be reached.

The merits of the reforms are well known and I shall not dwell upon them. An immense amount of preparatory work has clearly been done. Even so, the Government seem so far to have given insufficient consideration to some of the most significant and wholly predictable consequences that these major constitutional changes will have. The most obvious and predictable of them all involve the Roman Catholic Church. Other noble Lords have alluded to this issue but, in view of its importance, I would like to return to it, following meekly in the wake of my fellow member of the Constitution Committee, my noble friend Lord Lang.

No one who marries a Roman Catholic in future will be excluded from the line of succession, but no one who is a Roman Catholic can wear the Crown. Immediately, people ask the obvious question: if a marriage to a Roman Catholic is contracted in the direct line of succession or close to it, in what faith will the children of that marriage be brought up? Confronted with this question by your Lordships’ Select Committee on the Constitution last month, Mr Clegg was totally untroubled, saying:

“The Catholic Church itself has not had a doctrine for many years obliging people who are of a mixed religious denomination to educate their children as Catholics … There is a lot of flexibility and the Catholic Church has been very clear about that”.

Mr Clegg is married to a Roman Catholic and might have been expected to have been absolutely accurate in his comments. In fact, as this debate has made clear, he was both right and wrong: right that the Roman Catholic Church is capable of exercising flexibility, but wrong that it has shed its doctrine on mixed marriages. As the Reverend Andrew Cole, to whom my noble friend Lord Lang, alluded, private secretary to the Bishop of Nottingham and Catholic chaplain to the University of Nottingham, stated in a letter to the chairman of the Constitution Committee, provoked by Mr Clegg’s remarks, there remains,

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

A blithely untroubled optimist such as Mr Clegg may happily assume that the requirement will be set aside in regard to the children of a mixed marriage in the line of succession to the Throne. In this crucial matter, helpful and reassuring comments have been made by the present Archbishop of Westminster. But Mr Clegg, the Archbishop and others speak only for themselves.

The greatest institution in our country—its 1,000 year-old monarchy—requires certainty to ensure its security and stability in the ages to come.

[Baroness Falkner of Margravine]

I am very grateful to my noble friend for giving way. I, too, was on the Constitution Committee when we deliberated this Bill. Could he tell us whether what he describes as the constraints on the children of Catholics being bought up—and the Catholic Church’s perspective on that—would be different if the monarch was married to a Muslim, as is currently permissible? Muslim children are, likewise, expected to be brought up in mixed marriages as Muslims. So the anomaly exists in the case of other faiths, but perhaps not in the case of Catholics.

[Lord Lexden]

I thank my noble friend. This is a great matter. It is not possible for a child of a monarch to be eligible to take the position of the Supreme Governor of the Church of England if the monarch is a Catholic. That is why the issue arises in this connection and not in relation to other faiths.

I suggest a firm, binding and permanent declaration is needed from the Roman Catholic Church, recognising the unfettered right of a monarch, and of his or her heirs, to bring up their children as members of the Church of England for as long as the bar on a Roman Catholic monarch is retained.

I turn to a second set of utterly predictable consequences which the Government seemed singularly disinclined to address when the Bill was in the other place. They arise from the Bill’s first provision that succession to the Crown shall not depend on gender. The monarchy enfolds a number of historic titles to which deep respect as well as great importance is attached. Here I follow my noble friend Lord Trefgarne and the noble Lord, Lord Carlile. The historic titles are central features of our nation’s heritage: the Duchies of Cornwall, Lancaster and Normandy; the Scottish titles of Rothesay, Carrick, Renfrew, Lord of the Isles, and Prince and Great Steward of Scotland; and the title of Lord of Mann, under which the monarch is proprietor of the Isle of Man.

In its report on the Bill, the Constitution Committee highlighted the issue of succession to the Duchy of Cornwall. It stated:

“When the Duke of Cornwall succeeds to the throne, the Duchy automatically transfers to the new heir. At present, however, the Duchy can only be held by a male”.

As Mr Ben Wallace, who contributed so powerfully to the debates on the Bill in the other place made clear, the Duchy of Lancaster descends in the male line if there is a male child of a monarch to whom it can pass. Great properties and wealth are attached to both duchies. Both were originally established, I understand, in the Middle Ages under charters granted in Parliament.

As is well known, Scotland provides much more readily for female succession. Can all the monarchy’s titles in the peerage of Scotland be held by a woman with the principle of male primogeniture abrogated, along with the revenues that may be attached to them? What about the historic title, Lord of Mann? The people of the Channel Islands will want to know whether there are any implications of change for the Duchy of Normandy. So far the Government have shown themselves largely indifferent to these vital questions. In the closing stages of debate on this Bill in the other place, Mr Tom Brake, Deputy Leader of the House, said:

“Titles are a matter for the monarch. Because we are restricting the scope of the Bill, we can move forward”.—[Official Report, Commons, 28/1/13; col. 730.]

I suggest that we cannot move forward on that basis. The great titles in question are matters for Parliament and the nation as well as for the Crown. Authoritative advice is surely needed on the full implications that Clause 1 of the Bill will have for these historic monarchical titles. The country is not short of learned peerage lawyers; should they not now be consulted? For in all this is there not a clear principle to be identified and upheld: that any woman who is first heir to, and then succeeds to, the Throne as Queen of our country under the terms of this legislation must possess and enjoy all the titles, dignities and honours that would be invested in a King? Otherwise, true gender equality will not be achieved.

The third and final consequence of this legislation on which I would like to touch differs from the other two in that it has not so far been evaded or left in a vague condition by the Government. Here again, I follow my noble friend Lord Trefgarne. As soon as the Government made clear their intention to set aside the principle of male primogeniture in the royal succession, they were at once asked whether this hallowed principle would also be endangered in respect of hereditary peerages. They replied that this was an entirely separate issue, which they had no plans to address. That at once raises the spectre of acute disagreement at the centre of the Royal Family itself. It would be wholly unsurprising if, in the years to come, Lady Louise Windsor, the first-born child of the Earl of Wessex, did not view with perfect equanimity the prospect of the succession of her younger brother to the earldom when the principle of male primogeniture had been set aside in the main line of royal succession. The wider ramifications are already obvious. This legislation has given determined ladies of blue blood and their male supporters the opportunity to secure greater publicity than ever before for the incompatibility between the principle of the equality of the sexes and the rules of succession attached to the overwhelming majority of hereditary peerages.

The Government cannot dispose of the matter merely by saying they have no plans to address it. The campaign for change which is now well under way will have been heartened by Mr Clegg, who said during his speech on Second Reading in another place:

“Personally, I am sympathetic to that reform”.—[Official Report, Commons, 22/1/13; col. 212.]

Elements of this legislation could introduce serious instability in the monarchy. The very existence of this legislation has already introduced it in the hereditary peerage.

I am not arguing against the principal aims of this legislation, which have such widespread political and public support. However, because of the far-reaching nature of the changes that it will make to our monarchy, the legislation needs to satisfy two clear questions: will it stand the test of time; and will it strengthen the institution that stands at the very centre of our national life? Unless both questions are satisfactorily answered, the Government will risk the charge that they have sacrificed tradition to modernisation instead of reconciling them sensibly and sensitively.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am sorry to disappoint my noble friend, but the Government do not have plans to do that, although it is quite clear from the contributions to this debate that it is an issue. However, it is not the policy of the Government to go down that road; therefore, I regret not to be able to give a more accommodating answer to my noble friend.

With regard to the Royal Marriages Act 1772, my noble friend Lord Lang thinks six is too limited, but my noble friend Lord Carlile thinks six is too wide. I explained that if one looks at the 240 years of history since the Act was passed, Queen Victoria was the furthest away from the Throne at the time of her birth, at fifth. Therefore, six is a realistic number. I say to my noble friend Lord Carlile and other contributors that, unlike the consequence of the Royal Marriages Act, which is that the marriage is void, the consequence of marrying without consent under this Bill would be that one would drop out of the line of succession, so some of the convention issues that my noble friend mentioned are properly addressed.

My noble friend Lord Lang was concerned that the Bill might put the sovereign under some pressure about whether someone was an appropriate person to marry. That could be the case today. There is probably unlikely to be any pressure if the person is 710th or whatever in line to the Throne, but even today, the first six still require the sovereign’s consent to marry.

My noble friend Lord Trefgarne asked about judicial review. We do not believe that this could be reviewed. Although the decision would be taken on the advice of Ministers, it would be taken by the sovereign, and her decisions cannot be challenged in the courts.

My noble friends Lord Carlile and Lord Northbrook asked us to clarify the common law position with regard to the monarch’s consent. It is arguable that the common law no longer applies since it could be said that by legislating in 1772, Parliament has superseded the common law. The defects of the 1772 Act have frequently been pointed out, and the Government consider that there is a clear case for repealing and replacing it. A dowager queen is not in the line of succession, so the importance of royal consent is not as great as it is in the case of someone in the immediate line of succession. We do not see dealing with any possible surviving common law rules on consent as essential.

My noble friend made points about the Roman Catholic Relief Act 1829 that were picked up by my noble friend Lord Northbrook. It was argued that the Bill would allow a regent to be a Catholic. The effect of the Bill is not to make it possible for the regent to be a Catholic. Section 3 of the Regency Act provides that the regent is the person next in line of succession, if not disqualified, which a Catholic would be. A further disqualification is brought in under this Bill if a person in the first six in line of succession to the Throne marries without consent. That is the purpose of that clause.

My noble friend Lord Astor asked about the Channel Islands and the Isle of Man. Historians will argue about whether the dukedom of Normandy is still live, but there is no doubt that within the Channel Islands the Queen is heralded and treated as the Duke of Normandy. Nothing in the Bill would change that. The Channel Islands have been consulted on this. The Bill will apply by necessary implication to the Crown Dependencies and the British Overseas Territories, which have been fully informed and consulted on this matter.

[Lord Lexden]

Will my noble and learned friend say a word about the Lordship of Man, which I raised?

[Lord Wallace of Tankerness]

The position with the Lordship of Man is exactly the same. No change is anticipated. The Queen would continue to be the Lord of Man when she is in the Isle of Man. The removal of male bias has no implication for the title of Lord of Man.

In her opening remarks, the noble Baroness, Lady Hayter, said how much we look forward to the birth later this year of the child of Their Royal Highnesses the Duke and Duchess of Cambridge. She got the assent of the House when she said that she hoped that there would be no press harassment or intrusion. The change that we are putting forward will mean that if the Duke and Duchess of Cambridge have a daughter, then a son, the daughter will precede the son in the line of succession. As we look forward to the birth, we can also celebrate that whether a boy or a girl, the child will have equal claim to the Throne. I think it is the mood of the House to wish the Duke and Duchess of Cambridge every happiness as they face up to the challenge of parenthood, and I commend this Bill to the House.