Succession to the Crown Bill

Lord Marks of Henley-on-Thames Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, may I say how much I welcome this Bill on behalf of these Benches and on my own behalf? Our present law, whereby an elder daughter is displaced as heir to the Throne by the birth of her younger brother is an affront to women throughout this nation and the Commonwealth. Of itself, it damages the identification between the monarchy and the people, particularly women, as the noble Baroness, Lady Hayter, movingly pointed out. I am delighted that we are to change it. It is also a great tribute to the Commonwealth as an institution that we are legislating for this change in a co-ordinated way in all 16 of Her Majesty’s realms.

Perhaps I may address for a moment the important constitutional point made by the noble Lord, Lord James of Blackheath, who has explained why he believes that this Bill is a breach of Her Majesty’s coronation oath and therefore, for us, a breach of our oaths of allegiance. As I understand his argument, he believes that because the Declaration of Rights in 1688 obliges the monarch to reject Roman Catholicism, it follows that she would be in breach of her oath by assenting to this Bill. In my view, the noble Lord’s argument gives insufficient weight to the doctrine of the sovereignty of Parliament and to the general rule that Parliament cannot bind its successors. The Declaration of Rights, made on the arrival of Prince William and Princess Mary in the kingdom, did not of itself have the force of law, as has been pointed out. It was enacted as an Act of Parliament as the Bill of Rights in 1689 and has been an important part of our constitutional settlement ever since. It is true that it was expressed as intended to remain the law of this realm for ever. However, the doctrine that Parliament cannot bind its successors was already well established by the late 17th century. In fact, the Bill of Rights has already been amended on a number of occasions. In the context of this Bill, the most notable amendment was made by the Act of Settlement 1700, just a decade or so after the Bill of Rights—

[Lord James of Blackheath]

My Lords, I had anticipated the argument concerning the alteration of the Declaration of Rights, but I think that the only occasion on which it has ever actually been amended was in 1825 when it was found that there were insufficient jurors available to fulfil the obligation to run the courts. On that occasion the threshold for serving on a jury was reduced to include £10 rental holders. Nothing else has been done.

[Lord Marks of Henley-on-Thames]

My Lords, I am afraid that I disagree with the noble Lord because the Act of Settlement expressly changed the line of succession by introducing the Electress of Hanover, who was a granddaughter of James I and the mother of George I, into the succession just 10 years or so after the Bill of Rights was passed. A further amendment to the Bill of Rights was unwittingly mentioned by the noble Lord in the form of the Accession Declaration Act 1910 which brought in the very declaration he has read out to noble Lords. It changed the coronation oath which had been prescribed by the Bill of Rights. The present declaration, which he read out, reflects the present position: the sovereign promises to uphold only the enactments that procure the Protestant succession to the Throne. There is nothing inconsistent in this Bill with that declaration, and I have absolutely no doubt that this Parliament is as entitled to enact this Bill now as was the Parliament convened in 1689 to enact the Bill of Rights.

Perhaps I may mention the arrangements made for succession in the other royal houses of Europe. The position is as follows. Belgium, Denmark, Luxembourg, Norway, Sweden and the Netherlands all adhere to equal primogeniture, with no male preference. Indeed, in Sweden the heiress apparent is a woman, Crown Princess Victoria, who will become Queen of Sweden in due course. She was born in 1977 as the eldest child of King Carl Gustav. Her younger brother Carl was born in 1979, and Princess Victoria only became heiress apparent again in 1980 as the result of a similar change in the law to that which we are enacting now. I suggest that this demonstrates that it is plainly preferable to make such a change as this in advance, if we can.

Only Monaco and Spain have male-preference primogeniture as we do at present, although in Monaco the next in line is actually a woman, Prince Albert’s elder sister, because Prince Albert has, as yet, no legitimate children. Spain also plans to change its rules of succession in the same way as we are now. This will entail a constitutional amendment which needs to be passed by both Spanish Houses of Parliament with a two-thirds majority in each House, and then it would be put to a referendum. This has not happened yet, perhaps owing to the requirement in Spain that when a major constitutional change is passed, Parliament must be dissolved and new elections called. However, the proposed change in the law enjoys widespread public support in Spain, notwithstanding the difficulty caused by the fact that Juan Carlos’s two eldest children are women, and it is their younger brother who is currently his heir.

Without getting too technical, Liechtenstein has an old system of succession called agnatic primogeniture which completely excludes women from the order of succession. This was specifically criticised by a United Nations committee looking at gender equality in 2007. Luxembourg used the same system until June 2011, when equal primogeniture was introduced. As here, this change made no difference to the immediate order of succession, so Luxembourg is a good example of a country which has reformed its rules even more significantly than we are doing now. All this goes to show that the present succession arrangements for our monarchy and our Commonwealth are well behind the times.

I also welcome the end of the ban on the monarch and his or her heirs to the Throne marrying Roman Catholics. One can see that the monarch’s position as Supreme Governor of the Church of England suggests, even if it does not dictate, certainly for the time being, that he or she must be a Protestant. However, there can be no justification for any religious discrimination going beyond that requirement, and the Bill rightly gives effect to that principle. Clearly, marriage to a Catholic would present a monarch or an heir to the Throne with a stark choice, a difficulty even, in respect of the children. However, my view is that the approach of my noble friend Lord Lang of Monkton sacrifices the principles of tolerance and understanding that are enshrined in this Bill on the rather hard altar of certainty and stability, as he put it. For myself, I prefer the approach of the noble Lords, Lord Luce and Lord Janvrin, which I believe may in time lead to an accommodation being reached on this issue. I have to say that the intervention of my noble friend Lady Falkner on my noble friend Lord Lexden raised an interesting point. She pointed out that there is no bar to the monarch being married to a Muslim and that there are similar rules for Muslims on the upbringing of the children of such a marriage as there are for marriages between Protestants and Catholics. Exactly the same issues would arise with such a marriage as would arise with a marriage to a Catholic. That simply highlights the anomalies of the present rules, the fact that they are rooted in history, and the need for these changes to help our country to continue to evolve in a tolerant and non-discriminatory way.

Before I finish, perhaps I may also say what a pleasure it is for those of us who value the continuation of this United Kingdom to see such a distinguished Scottish law officer as my noble and learned friend the Lord Advocate steering this important constitutional measure through your Lordships’ House.