Succession to the Crown Bill

Lord Stevenson of Balmacara Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, I thank all speakers for contributing to this wide-ranging debate, in which we have heard many useful and important points. Although not all have been within the scope of the Bill, many of them ought to be addressed. Having said that, I fully understand why the Government may not wish to address them today, or even in the short term. At least on the evidence of today’s debate, and particularly on the evidence of the words said just before I started to speak, these points will not go away.

The Bill is a piecemeal assemblage. Given the nature of the uncodified UK constitution, it is probably inevitable that, when we have the opportunity to tinker with the constitution, that is indeed what we do. However, as several noble Lords and particularly the noble Lord, Lord Lang of Monkton, said, in our work in this House we need a sense of the principles and what the underlying proposals would lead to in the long term. On a number of occasions, we have come up against points where pragmatism seems to have trumped principle.

A number of noble Lords have raised the issue of why this Bill has been fast-tracked. We heard from the noble Lord, Lord Northbrook, who made reference to the Constitution Committee’s 2009 report—its most recent one—which suggests that,

“the use of fast-track legislation, while it may be necessary for reasons of emergency and overriding public interest, will rarely, if ever, be appropriate for significant constitutional matters”.

The Minister said, when he introduced the Bill, that this was a profound measure. I think he goes along with the fact that this is an important, significant constitutional matter. I do not want to make too much of this issue, as we are going through all the stages in your Lordships’ House, but we should take from this the fact that using the expedited procedure for constitutional measures is, in principle, regrettable. It is to be hoped that the Government do not make a habit of resorting to the device.

Several noble Lords drew attention to the mechanics that underlie this Bill. I should put on record the fact that I had some involvement with those mechanics when I was working in Downing Street a few years ago. As we understand it, the whole point of consulting the other 15 states who have the Queen as head of state was to ensure that common action was agreed, which was necessary to avoid a situation in which different people emerge as monarchs in different states because there had been no uniform change to the succession rules. We also understand that the UK had to go first to blaze the trail, although some states will not have to legislate at all because their constitutions automatically accept whoever is the legitimate successor in the UK. Can the Minister, therefore, tell us how far we have got with simultaneous ratification in the other realms? I would like to follow up the suggestion of the noble Lord, Lord Trefgarne, that the Minister should say what would happen to the Government’s plans if several states—or even one of them—that have to legislate, fail to do so successfully?

I appreciate that the agreed retrospection to 28 October 2011 removes the most urgent time pressures but it would be unfortunate if changes that we agree upon here are effectively negatived by what happens in other realms. I understand, for example, that the proposed method of proceeding in Canada may be inconsistent with what one—clearly favoured—reading of its constitution considers to be the right course. Perhaps the Minister could advise us of whether there is any recent information on that point.

On primogeniture, the change to gender-neutral primogeniture for royal succession is welcome and, despite the safety net of retrospection to 28 November 2011, there is a clear case for settling the matter before the delivery of the Duchess of Cambridge’s child later this year. However, although the change to gender neutrality demonstrates our monarchy’s protean ability to move with the times, a primogeniture rule is a pretty rum way of selecting people for any job, let alone head of state. Of course, it is not an unqualified rule, as we prioritise adherence to a particular religion more highly than personal merit, which is a trade-off that was certainly important to us in the past, but has surely lost its rationale in the present. Having said that, our present monarch has conducted herself impeccably, and has set what we must hope is an entrenched example that will be emulated by her successors. Of course, it is highly relevant that the modern monarchy has no executive functions, even if it retains many public roles.

On whether there is a possible read-across from royal primogeniture to a peerage succession, the Government’s argument is that Crown and peerage primogeniture are distinct. We agree that, as things stand, Crown succession must and can never fail but there is no public interest to be served by putting peerages in the same position. To my mind, regardless of questions of legitimate expectations and private law arrangements being invaded by unforeseeable changes in the succession rules, anxieties about peerage succession can serve only to raise the question of why hereditary peerages should continue at all, let alone in this House.

That is not in any sense to demean the arguments put forward today. Nor does it deal with the argument for change in the peerage succession rules, admirably put forward by a number of noble Lords but also by a number of wives, sisters and daughters who have corresponded with a number of your Lordships. They argue, and I agree with them, that the lack of a Y chromosome can and does see some women denied their natural inheritance. That should be addressed.

On the issue of religious tests, I am sure that the whole House welcomes the proposal to permit the sovereign to marry a catholic, which at least gets rid of one of the most visible bars to full Roman Catholic participation in our society. However, because abolishing this disqualification leaves untouched the remaining Catholic disqualifications, the question that naturally follows is: why should any remain? After all, it will still be the case that the monarch cannot be a Catholic and will also have to be “in communion with” the Church of England. As we have heard, this latter rule means that, even if all the explicit bans on Catholics succeeding were repealed, an implicit ban would remain, and it is not much of a consolation that the ban includes everyone else not “in communion”, that is non-Trinitarian Christians, all non-Christian believers and all non-believers.

I note that the Church of England issued a statement on 21 January about this Bill, which included the following about the marriage bar:

“Its proposed removal is a welcome symbolic and practical measure consistent with respect for the principle of religious liberty”.

It should be noted that it says “religious liberty”, not “religious equality”. Liberty and equality are not the same.

The customary defence to preserving the explicit and implicit Catholic bans is that repeal would be incompatible with the monarch remaining Supreme Governor of the Church of England, a title which derives from Section 8 of the Supremacy Act 1558. In practice, all senior diocesan and cathedral appointments are now made by the Church of England in a situation where the recommendations of its committees are waved through by the Prime Minister on their way to the sovereign. All measures require prior parliamentary approval and all canons the prior approval of Ministers. The actual content of the supremacy is therefore largely formal and the church is, in practice, autonomous.

We do not have an established church in Wales, Northern Ireland or in Scotland. I draw the attention of the noble Lord, Lord Maclennan, and my noble friend Lord Berkeley to the Church of Scotland Act 1921, which confirmed that the kirk has independence in spiritual matters. We ought to bear in mind that here we are talking about an English issue and not a UK one.

Several noble Lords raised the issue of whether it was time to abolish the supremacy. At the very least I agree with the noble Viscount, Lord Astor, that we should debate this otherwise it will suddenly come and get us when we are not expecting it.

It is my understanding that there are two possible ways of proceeding. We could do a wholesale statutory repeal or we could do a minimal change to the law combined with changes of practice. The first would require the repeal of all the relevant statutes. But there are precedents for that as we repealed, in an appropriate time and an appropriate way, the legislation disestablishing the Church in Ireland in 1869 and in Wales in 1914. How far and how deeply statutory reform would need to reach would depend on what, if any, roles the church wished to retain in England and Parliament was content to continue. This route would be technically laborious but not impossible and perhaps best undertaken by the church itself in stages, proposing the means by way of synodical measure.

The second method would be to proceed by minimal repeal; that is by repealing the prohibitions against Catholics and the requirements for the monarch to be in communion with the church, and amending the accession declaration oath. This would remove the compulsory religious qualifying link between the sovereign and the church and yet permit, as a matter of practice, the remaining formal functions to be regarded as the involvement of a friendly but non-confessional royal patronage towards one of the most ancient of national institutions. As the noble Lord, Lord Deben, has just said, free to adopt any belief system they wished, sovereigns could remain Anglicans if they individually desired but the compulsory link would be abolished and the way cleared for them to choose freely like everyone else. At the same time, all belief systems would thus become equal under the sovereign and, while there would be recognition of Anglicanism’s historic presence, that church would no longer have an entrenched constitutional role in England.

The present sovereign has herself voiced reinterpretive language about the modern role of the Church of England. The right reverend Prelate the Bishop of Worcester cited extensively what the sovereign said at one of the first Jubilee celebrations at Lambeth Palace on 15 February 2012. The key passage, which I should like to repeat, is:

“The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated. Its role is not to defend Anglicanism to the exclusion of other religions. Instead, the Church has a duty to protect the free practice of all faiths in this country”.

That certainly opens the way for further work, if the current Government are so minded. It is important to recognise that what one would be doing here is securing religious equality as well as religious freedom in this country.

The third part of the Bill deals with royal approval for marriage. It is a bit of a surprise to find that this subject occupies more of the Bill than the other provisions put together. Many noble Lords have expressed concern about the fact that that tidying-up exercise raises the question of whether royal consent should be required for anyone’s marriage in the first place. Although the 1772 Act machinery would have been an important element in, for example, Princess Margaret’s decision not to marry Group Captain Townsend, the objection that he was a divorced man would now perhaps not feature as an insuperable objection.

Presumably, other targets of unsuitability are thought to have force. If so, what exactly are they? Would the line be drawn at marriage to one’s personal trainer, as happened in Sweden, or to an unmarried mother, as happened in Norway, where official consent was forthcoming in both countries? Repeal of the clumsy—some would say vindictive and heavy-handed—1772 Act is clearly an advance, above all in the way in which the new system will not invalidate marriages where prior royal consent is not obtained. On the other hand, it would be helpful to know exactly in what circumstances the Government envisage that that consent would be withheld. Can the noble and learned Lord confirm that consent will be withheld only following and on the advice of Ministers; or where there is a well founded personal objection to an intended spouse by reason of their past conduct or present associations being likely to bring the institution of the monarchy into disrepute; and that those reasons would be given?

As the noble Lord, Lord Trefgarne, asked, will that all be subject to judicial review? If the Minister cannot so confirm today, will the Government set out before the Bill’s remaining stages when they envisage royal consent may legitimately be refused?

As I said, this has been an interesting, illuminating and highly educational debate. As was said earlier, this important debate has the capacity to interact very substantially with the culture of this country. Unlike most of the business with which we routinely deal, it is in some senses a one-off. It has impacts which are unlikely to be seen in full effect for about 100 years, as the succession moves on.

I conclude by stressing what my noble friend Lady Hayter said at the beginning of the debate, which is that we on this side support the limited but important aims of the Bill and will do what we can to ensure its smooth passage through your Lordships’ House.