Succession to the Crown Bill

Lord Maclennan of Rogart Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Maclennan of Rogart]

My Lords, I wish to begin by expressing admiration for the attitude that has been taken by the 16 realms towards the appropriate changes to the succession to the Crown. It is almost beyond debate that the gender disqualification should be removed in the 21st century. I do not wish to dwell on the positive aspects of the Bill, which are strong and which I think this House would wish to support, but I would rather wish to draw my noble friend’s attention to the unresolved issue of the religion of the monarch.

Some years ago, shortly after I entered this House, I proposed a Motion that was widely, although not universally, supported, calling for the disestablishment of the Church. As we live in a united kingdom, it is rather strange to have two established Churches. My father was Lord High Commissioner of the Church of Scotland and was the Queen’s representative there. She was potentially wearing two hats: one as the head of the Church of Scotland and one as the Supreme Governor of the Church of England.

[Lord Trefgarne]

Is the Church of Scotland an established Church? I think not.

[Lord Maclennan of Rogart]

Yes, it is an established Church. It seems to me that the time has come to recognise that the essence of Christianity is tolerance and to love thy neighbour as thyself. That cannot be entirely consistent with an exclusive attitude towards other religions. This is not a matter that presses down on our constitution at this time, but it is a matter of growing concern that we observe even in Europe rulings made by Governments about other religions, about what clothes they may wear, what turrets they may have on their places of worship. Those should not be matters for the state, they should be decided by the churches themselves, as long as they do not interfere with the freedom of worship of the individual.

I am happy that a move has been made, with the agreement of 15 other realms of the Commonwealth, to enable the heir to the Throne to marry a Roman Catholic, but, as the noble Lord, Lord Lang said, that reveals problems that will almost certainly arise in future. It is not clear what the attitude of the Roman Catholic Church is to the education of the children of Roman Catholics. In so far as statements have been made by the Church itself, as opposed to those made by the Deputy Prime Minister, it appears that bringing up the children of a Roman Catholic in the Roman Catholic religion is a requirement. I am bound to say that that creates a degree of instability to which the noble Lord, Lord Lang, was right to point.

At this time in our country, we ought to recognise that a Buddhist or a Quaker could succeed to the Throne, but that would not put any kind of threat on the stability of our society. As the noble Lord, Lord Lang said, the history of the monarchy has been linked to the established Church. I am sorry to say that I think that it has been a regrettable history. It has led to persecution of people for their individual faiths. It has led, for example, to our greatest playwright, William Shakespeare, concealing his religion and having to live under cover. It has led, in the reign of the first Queen Elizabeth, to the massacre of Roman Catholics as a matter of system.

[The Lord Bishop of Exeter]

I fully support the Bill, but if we are going to go into history, it is terribly important to remind ourselves of the reason why the prohibition against a Catholic was brought into English law in the first place. It has its origins in the bull Regnans in Excelsis of Pope Pius V in 1570, which absolved all English Catholics of any responsibility to obey the laws of the English realm, and indeed placed any English Catholic who so obeyed under the possibility, indeed, the likelihood, of excommunication. It was that bull that was used as the justification for the rebellion against the Crown in Ireland. That is the historical reason. I am not saying that it necessarily applies to where we are today, but if we are going to revisit history, it is important that we do so accurately and understand why these things entered into our historical experience.

[Lord Maclennan of Rogart]

I understand why they entered into our constitution but to judge people on the basis of their belief, because they have been given permission by the hierarchy of the Church to which they belong to disobey the laws of the state, seems not to connect the individual with the Crown. That led, in so many cases, to execution, cruelty, torture and abysmal behaviour on the part of those who were supporting the established Church—including the monarch herself.

[Lord Deben]

Did my noble friend notice that the right reverend Prelate said that he did not think that those reasons necessarily applied today? Surely it is unacceptable that anybody should say that those reasons apply in any sense today, given that of the people in church on a Sunday who pray for Her Majesty’s health, more of them are in Catholic churches than in any other denomination.

[Lord Maclennan of Rogart]

I entirely agree with my noble friend. It seems to me that we should not allow our future disposition on the succession to the Crown to be governed by what happened in the 1570s, which to my mind was a period of shame.

[Lord Deben]

On both sides.

[Lord Maclennan of Rogart]

On both sides—I accept that. I hope that we can accept as a very valuable step in the right direction the provisions of this Bill, which recognise that marriage to a Roman Catholic is acceptable by the heir. The fact that there are so many unresolved questions seems not entirely surprising, bearing in mind that we were seeking to get the agreement of 15 other Commonwealth countries, However, I hope that the discussion will continue and that we will see our country and our democratic Commonwealth fellows move towards recognising that religion is not a requirement of the sovereign and that the sovereign should be an exemplar to all religions. The utterance of the heir to the Throne about regarding himself as a defender of the faiths, in the plural, was an enlightened comment and I hope that we can move in that direction.

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[Lord Wallace of Tankerness]

My Lords, I believe that this would go beyond the scope of the Bill. Something as profound as that could not be imported into the Bill without much further scrutiny and consideration. It is also important to remember that the provisions in the Bill removing an element of religious discrimination have been welcomed not just by the Church of England but by the Roman Catholic Church. I do not think that that is a stitch-up; it is a welcome recognition by both churches that this is an important change in our law. To go much wider than that, in fact, would require consideration that is not appropriate. We would be subjected to justified criticism if this were all rushed through as an amendment to the Bill in Committee, quite apart from all the implications for the other realms that have been so carefully consulted on over a long time.

[Lord Maclennan of Rogart]

Before my noble and learned friend leaves this matter, while recognising that the Bill may not be the right place to do what the noble Lord, Lord Deben, has suggested, could he at least indicate that the Government might put in train discussions about this with other realms in the Commonwealth and consider whether this would be an appropriate direction in which to move?

[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.

Constitutional Settlement

Lord Maclennan of Rogart Excerpts

Thursday 11th October 2012 Lords Chamber

Moved By

[Lord Maclennan of Rogart]

To move that this House takes note of a potential break-up of the United Kingdom and of the case for considering an alternative constitutional settlement.

[Lord Maclennan of Rogart]

My Lords, I welcome this opportunity to raise broad constitutional issues that it is timely for us collectively to consider. The referendum proposed on Scottish independence is without precedent since 1707 and the Act of Union. I know it is widely considered that the majority of Scots in Scotland who will participate in this test of opinion are unlikely to take such a self-damaging step, but there is no ground for complacency.

The fact that the Scottish National Party, which is committed to the break-up of Britain, won a majority of the seats in the Scottish parliamentary elections is not a political outcome to be taken lightly. To my mind, the likeliest explanation of that outcome was that the three United Kingdom parties at the time of that election were not in good standing because of the economic downturn in the United Kingdom and the proposed means of dealing with it. Unfortunately, the prospects for Britain emerging from these difficulties by the date which I understand is proposed for the referendum in 2014 are not good. Consequently, it is to be hoped that the Scottish people will draw a clear distinction between supporting a party of protest and weakening the voice and influence of Scotland by separation from the United Kingdom.

In the world in which we live, it makes no sense to lift the drawbridge and retreat into an embattled redoubt. With the global advance in economic power of countries such as China and India, and the rapid development of such countries as Brazil, we should recognise that decisions affecting the citizens of this country will not all be taken at the level of the nation state. Trade, the utilisation of scientific discovery, the protection of the environment, the regulation of global finance—in these, and in many other areas of policy, Governments should move in the direction of integrating systems of political decision-making, not towards fragmentation. Too much navel-gazing is going on around the United Kingdom without proper recognition of our inevitable diminution in global power if we do not associate ourselves with other like-minded countries. If we in Britain want to have a continuing voice in such decisions, we need to enable our representatives to be seen to be speaking with democratic authority—and with a broad democratic consensus that o’erleaps national frontiers. That is the actual strength of the European Union, and it could become even greater if we recognise the need to develop and reform the Union’s constitutional structures to achieve that goal.

To my mind, competition among nation states is not always wise and it is not necessarily the way ahead for the United Kingdom. As that highly successful entrepreneur, Henry Ford, once said:

“Coming together is a beginning. Keeping together is progress. Working together is success”.

I am sure he was right.

A glance back at Scotland following its parliamentary integration with England demonstrates that the national culture, the national identity, was not adversely affected by the union. Not only did the age of enlightenment that followed hard on the heels of the Act of Union bring Adam Smith, David Hume and Allan Ramsay to the forefront of Great Britain but they were seen as giants on the world stage. At the same time, in the professions, the Adam brothers in architecture, the Hunters in medicine and Lord Stair in the law could be seen as fundamental to Scotland’s reputation.

It is surely right, however, to recognise that representative democracies must adapt to changing circumstances. The key is to recognise that the tiers of government must be structured to enable them to accomplish what the people want. Decision-making by government in this country has become more extensive with every passing decade. The weight of the volumes of statutes that we have as a result of our legislative activities grows with every year. The executive arm is ever more stretched. The Better Government Initiative, in which distinguished Members of this House participated, made valuable suggestions. Parliament has already accepted significant changes to our ways of governing and discreet constitutional reforms have been effected that have improved our system of governance. I shall not go back to the period of the beginning of the Labour Government, which I think was very profitable, involving as it did the incorporation of the European Convention on Human Rights into our law, but I would mention in particular the steps to strengthen the judicial system by ensuring the separation of legislative and judicial roles in the forming of the Supreme Court.

The time is now ripe, however, to open a national discussion on the modernisation of our British constitution. What is happening in Scotland will have a difficult fallout and impact on other nations of the United Kingdom. It has already led to discussions in Wales, which have been considered in this House, the Silk commission and other reports on devolution and additional decentralisation. However, I believe that an ad hoc approach to constitutional reform is no longer enough, and that we must look at these issues in the round and recognise that what we choose to do in one area may have a ripple effect in other areas, which were not necessarily considered because that was not what gave rise to the reforms.

The House of Commons made a very important step with the consideration given by the Political and Constitutional Reform Committee to the possibility of establishing a nationwide United Kingdom convention on the future structures of our Government. Graham Allen has personally followed this debate and led it with considerable distinction. I have been in favour of piecemeal reform in the past, but it seems to me that the time is ripe to bring together the issues that are causing unrest, discontent with politicians and a sense of failure of Governments and come to conclusions that enjoy a broad consensus. The Scottish convention was very successful in that respect in Scotland. It is not a precise model to be followed, because some consideration ought to be given to whether citizens should be individually elected to participate in such a convention, but it is clear that decisions should not be taken in a partisan way to benefit individual groups of politicians around the country; and that they should enjoy widespread non-partisan support if they are to be brought forward in Parliament.

A deliberative constitutional convention could be informed by the best and wisest heads who have considered these things, many of whom have been giving evidence to the committee in another place. It would assist greatly the achievement of consensus if we aspired to that solidity of approach. I do not believe that Parliament itself, constructed as it is in a partisan way, or the executive arms of government, can achieve these needs without the wider participation of the interested and informed public.

If we are to build that wider consensus into a coherent constitutional framework for decision-makers that allocates responsibility to the appropriate levels, we need the input of our citizenry. That is the sensible way to distil the best options and obtain wide-reaching consensus. We have seen some very helpful deliberations initiated around the country by, in many cases, non-politicians. We have, for example, had very perceptive criticism of the Barnett formula on the distribution of central government funds, and ways out of that dilemma, from Professor Iain McLean of Nuffield College, who has drawn particular attention to the Australian federation system of distributing central government funding. We have had sensible evidence—and again this was part of the Graham Allen approach—that led to the view that a process internal to England would be appropriate in order to establish a clear regional model, ensuring that no single unit within the United Kingdom was too large to participate in what might be seen as a modern federal structure.

There is much to be said for such a structure, but it is not my purpose in opening this debate today to advocate particular solutions to the need to obtain accepted subsidiarity. My purpose is rather to open the discussion in this House about the possibility of a nationwide convention, which I believe should take years, and not months, to deliberate, so that the people of Scotland recognise that the choice is not between separation and the status quo and so that they can see, like everyone else in the United Kingdom, that there is a range of opportunities that would lead to better governance.

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[Lord Maclennan of Rogart]

I express my appreciation for all the speeches made today, which brought to this debate a wide range of experience and knowledge of the subject. I am happy that it has ventilated a number of positive proposals from all sides of the House and hope that the dialogue between Parliament, the Government and the citizenry about the appropriateness of a convention to consider a more integral and, in some ways, more uniform constitution will have been assisted by this process. I particularly thank my noble and learned friend for his reply to the debate, which I believe at least leaves the door open for further consideration of these matters, and for the recognition which I believe he has given to the fact that constitutional change can sometimes bring about unexpected results. That is why a coherent approach within an overall view seems, to many of those who have participated today, to be appropriate for this country to take at this time.

Motion agreed.