Succession to the Crown Bill
Debate between Lord Trefgarne and Lord Wallace of Tankerness(11 years, 7 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I understand that in tabling the amendment my noble friend Lord Cormack sought to put beyond doubt the requirement that the sovereign be a Protestant and in communion with the Church of England. I readily recognise the concerns expressed by my noble friend; at every stage of the Bill, he has clearly sought to find a means of addressing them. I readily acknowledge that this amendment is, to use his words, more modest than those that he moved in Committee and on Report. However, as has been indicated in our short debate, the Government believe that it is unnecessary as both the Bill of Rights and the Act of Settlement are unambiguous with regard to the requirement that the sovereign be a Protestant and in communion with the Church of England.
The Bill does not pave the way to change that. No one who is not in communion with the Church of England may ascend the throne. That rules out Roman Catholics as well as many other people. I have concerns that by attempting to reiterate this, and to single out the peculiar and particular prohibition on Roman Catholics, one risks causing offence. I am sure that that was not intended, but one does risk causing offence to many of Her Majesty’s loyal subjects when there is no good reason in law to do so. I do not believe that we should put into a Bill words that could cause unnecessary offence and reopen wounds. It has also been said that the amendment is unnecessary in law and could therefore lead to other jurisdictions that have responsibilities in this regard putting forward amendments and unpicking an agreement that has been very carefully constructed across the realms over a considerable time.
As the Supreme Governor of the Church of England, the sovereign must be both Protestant and in communion with the Church of England. For this reason, we are not removing the bar on Roman Catholics acceding to the throne, as set out in the Act of Settlement and Bill of Rights. Of course, we have heard expressed in a number of our debates the perceived problem of the heir to the throne marrying a person of another faith. That problem exists under present law; it is not one created by the Bill. Clause 2 merely provides parity of treatment between Roman Catholics and people of all other non-Protestant faiths.
Nevertheless, I have recognised and understand the profound concerns that have been expressed. As the House knows, following a commitment made in Committee, I met Monsignor Stock on behalf of Archbishop Nichols and the Catholic Bishops’ Conference of England and Wales to discuss this matter. As the right reverend Prelate the Bishop of Guildford indicated, Archbishop Nichols indicated that the wording had been discussed with the Cabinet Office. I have the specific consent of Monsignor Stock to say that he was speaking on behalf of Archbishop Nichols as president of the Catholic Bishops’ Conference of England and Wales, and can inform the House that the view taken by the Catholic Church in England and Wales is that in the instance of mixed marriages the approach of the Catholic Church is pastoral. It will always look to provide guidance that supports and strengthens the unity and indissolubility of the marriage. In this context the Catholic Church expects Catholic spouses to sincerely undertake to do all that they can to raise children in the Catholic Church. Where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, the Catholic parent does not fall subject to the censure of canon law.
Lord Trefgarne
Would it be possible for a copy of this letter to be placed in the Library of the House?
Lord Wallace of Tankerness
My Lords, this was not a letter, it was a form of words that was agreed between Monsignor Stock and the Cabinet Office that I have placed on the record. There was a letter to me from the right reverend Prelate the Bishop of Guildford that enclosed a copy of a letter that indicated what I have just said. I do not believe that it is in my gift to say that it will be placed in the Library, but I reassure my noble friend that I have just used the words that were in that letter. I thank the right reverend Prelate the Bishop of Guildford for his contribution to our debates, both today and on Report, and for what he did following Report in engaging further with Monsignor Stock and the Catholic Bishops’ Conference of England and Wales. Indeed, on Report the right reverend Prelate, in a speech that I believe was very helpful to the House, concluded that the teaching of the Catholic Church on this matter,
“bears out the Government’s assurance that the Roman Catholic rules are not a block to the smooth functioning of the proposed succession rules”. —[Official Report, 13/3/13; col. 282.]
As I have stated both in Committee and on Report, we have a very clear signal that the overriding concern in Catholic pastoral guidance to couples in mixed marriages is the unity and indissolubility of the marriage. We have an equally clear signal from the Church of England, included in their briefing note to Members, that:
“The present prohibition … is not necessary to support the requirement that the Sovereign join in communion with the Church of England”.
Again, I recognise the concern with which my noble friend moved his amendment. I reiterate that the requirement that the sovereign be a Protestant remains as solidly placed in law as ever. In this context, I invite him to withdraw his amendment.
Lord Wallace of Tankerness
My Lords, I indicated on Report that I would report to the House once the necessary steps in each realm had been completed and we were in a position to commence the legislation simultaneously. I reiterate that commitment. As it may be of interest to your Lordships, I can inform the House that since our debate on Report, Royal Assent was given to the Canadian Succession to the Throne Act on 27 March. We received confirmation from the Government of Antigua and Barbuda that, based on the nature of their constitution, they will not need to legislate to give the changes effect, and that the Council of Australian Governments agreed on 19 April, last Friday, to a process to change their laws.
As I have indicated on a number of occasions, the provisions in this Bill have been carefully worked out in agreement with the realms, and it is important that we now proceed to pass this Bill and show that we have been able to fulfil the task asked of us by the realm Prime Ministers in Perth in 2001. It is an important piece of legislation that has its roots in securing better equality, and certainly we await with great expectation the birth of a child to their Royal Highnesses the Duke and Duchess of Cambridge. We wish them every health, in particular the Duchess as she proceeds towards the birth of her child. In doing so, we know that if this Bill passes, and if the required processes take place in the other realms, that child, irrespective of whether it is a boy or a girl, will take its place in line to the throne ahead of any subsequent siblings. Therefore, I beg to move that this Bill do now pass.
Lord Trefgarne
My Lords, I do not intend to delay the passage of this Bill for more than a few moments. It is sad that this Bill has been driven through with such speed. Many of us would have preferred a Joint Select Committee, for example, to consider some of the important constitutional implications that it raises, and indeed changes. However, that has not been the case, and therefore that, for now at least, must be that. This Bill has also set running the hare of what happens to the hereditary peerage with regard to the succession arrangements for hereditary peers. I must tell your Lordships that those arrangements are, as I understand it, a great deal more complicated even than they are for the Crown. I dare say that if Bills come forward for that purpose they will delay the noble and learned Lord very much longer than this Bill has.
Succession to the Crown Bill
Debate between Lord Trefgarne and Lord Wallace of Tankerness(11 years, 8 months ago)
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Lord Trefgarne
My Lords, we touched on this matter in Committee. Under the present provisions, the Bill can be brought into force, bit by bit, by order of the Lord President of the Council, who is, of course, Mr Clegg at present.
This is not a personal matter. My complaint is not that it happens to be Mr Clegg in his present role but that there is a single Minister at all. A Bill of this nature and this importance should not be brought into force, bit by bit, at the request of a single Minister, however senior and distinguished. That is the essence of my complaint, so I propose that it should be brought into force by statutory instrument, subject to the approval of both Houses of Parliament. I hope your Lordships will agree, and I beg to move.
Lord Wallace of Tankerness
My Lords, my noble friend very succinctly makes his point about the commencement of the Bill. I fully accept that this has nothing to do with the personality of the Lord President. As I explained earlier, it happens that he has ministerial responsibility for constitutional and elections law.
There is absolutely nothing unusual in a Bill including a power for a Minister to commence provisions in an Act on a date and at a time to be specified by order and without that order being subject to any particular parliamentary procedure, negative or affirmative. Parliament will already have given its approval and the Act that is brought into force will be unamended; it will remain unchanged. Therefore, there is no reason for it to return to Parliament so that Parliament can confirm what it has already agreed.
Lord Trefgarne
My Lords, I am concerned—I think that there was reference to this in the letter that my noble and learned friend very kindly wrote to me the other day—about the possibility of different parts of the Bill coming into force at different times in different parts of the Commonwealth. For example, it seems possible for one nation to agree that the eldest child of the sovereign became its head of state and for another nation not to agree, or at least to delay agreeing—and therefore it might be the second child of the sovereign who became its head of state. That seems to be a confusion and complication that we would not wish to see. My amendment proposes that we should wait until all the nations that want to agree have agreed, so we avoid that difficulty. My amendment proposes that the Act will come into force when all the relevant Commonwealth Parliaments have given their consent to all its provisions. The word “relevant” relates, of course, to the fact that some Commonwealth nations do not have our Queen as their head of state. Therefore, their consent is irrelevant.
I hope that my noble and learned friend will be persuaded as to the point that I have made. I beg to move.
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 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.
Lord Trefgarne
My Lords, I am most grateful to my noble and learned friend. He has gone further than he did at the previous stage of the Bill and I am grateful to him for that. I am also grateful to him for his letter—five pages, no less—which he wrote to me since the previous stage, which has likewise been very helpful. He has said that he will lay a Statement before Parliament as each step is reached. If I may assume that that Statement will be a situation report and will perhaps describe the other nations where progress has not yet been achieved, I am content. On that basis, I am happy to withdraw my amendment.
Lord Wallace of Tankerness
Just so there is no ambiguity or misunderstanding, I think I said that before introducing the commencement order, we will make a Statement—it will not be a sort of running commentary—indicating what has been done in each realm to give effect to these changes.
Succession to the Crown Bill
Debate between Lord Trefgarne and Lord Wallace of Tankerness(11 years, 8 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the effect of my noble friend’s amendment would be, as he has indicated, to delay the removal of the male gender bias in the line of succession for almost 50 years. Perhaps I may pick up the point made by my noble friend Lord Elton and his reference to the report of your Lordships’ Constitution Committee. It is fair to say that since that committee reported, there has not been any undue haste. The time made available for debate on this Bill in the other place was not even fully used up, and in your Lordships’ House we are proceeding in the normal fashion with the appropriate elapses of time between the different stages. There is certainly no intention to cut short the debate in this House.
My noble friend has asked why we are doing this now and at this speed. The position is that the Prime Ministers of 16 Commonwealth nations, of which Her Majesty is the head of state, agreed during the Commonwealth Heads of Government Conference in Perth in October 2011—that is why the date has been put into the Bill—to work together towards a common approach to amending the rules on the succession to their respective Crowns. It is fair to say that that was the product of considerable work and discussion over many years. Indeed, discussions were ongoing during the previous Administration in this country. All these countries wish to see change in two areas, the first of which is covered by this clause, and that is to end the system of male preference primogeniture, under which a younger son can displace an elder daughter in the line of succession. It is right and appropriate that this clause will remove a piece of long-standing discrimination against women that may well have been acceptable in earlier centuries, to which my noble friend referred. This provision will modernise and affirm the place of our constitutional monarchy.
At Second Reading the noble Lord, Lord Janvrin, said that:
“If in the future within the line of succession a younger son were to take precedence over an older daughter, it would seem to be at least controversial and at worst discriminatory, out of date and out of touch. To make this change now, therefore, strengthens the monarchy because it avoids any risk of such deep controversy”.—[Official Report, 14/2/13; col. 802.]
That is why this is an appropriate time to make the change, because it will be done without affecting anyone who currently would have a prior claim on the throne. If, however, we wait for a situation where there may be a daughter and then a younger brother, and we tried to make the change then, it is inevitable that that would be more controversial.
Perhaps it is also worth reflecting that if the Duke and Duchess of Cambridge have as their first born a son, have only sons or, indeed, have only daughters, the effect of this clause may not bite until the next generation, possibly after 2060. However, as the noble Lord, Lord Janvrin, made clear, it would be controversial and possibly even destabilising to the monarchy to have this kind of debate at that point. We look forward to the birth of the Duke and Duchess of Cambridge’s first child knowing that we can celebrate, when this Bill is passed, that whether the baby is a boy or a girl they will have an equal claim to the Throne. I therefore invite my noble friend to withdraw his amendment.
Lord Trefgarne
My Lords, I hope that we will not hear too much more about the Commonwealth Heads of Government Conference where it was all said to be agreed. These matters are not agreed by ministerial diktat, however senior and distinguished the Ministers may be, but by the Parliaments of the countries concerned, and in some cases by a referendum as well. When the Heads of Government agreed all this in Perth back in 2010, it was subject to parliamentary approval in the relevant countries. That parliamentary approval has not yet been received, not least in this country. I hope very much that we will be thinking in terms of parliamentary approval rather than ministerial diktat, upon which my noble and learned friend seems to be relying.
Lord Wallace of Tankerness
I entirely accept what my noble friend says on the importance of the Parliaments; indeed some of the realms do not necessarily feel they need parliamentary approval, but obviously in this country we do. I am sure that he would agree that we needed prior agreement before any measures could go forward to the respective Parliaments.
Lord Trefgarne
Yes, but that is not included in this clause. That said, I do not wish to delay your Lordships on this matter. I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Northbrook for introducing this amendment, which has generated a considerable amount of debate and discussion. I understand where he and other noble Lords who contributed to the debate are coming from as they seek to remove gender bias in the descent of the Duchy of Cornwall. I will try to clarify the current situation. The title can pass only to the eldest son and heir of the monarch. Thus—as has been indicated—when she was heir presumptive to the throne, Her Majesty, as Princess Elizabeth, did not hold the title of Duke of Cornwall.
As has been said, the title and inheritance of the Duchy were created by King Edward III in 1337, and vested in the Black Prince by a charter having the authority of Parliament. My noble friend Lord Deben said that this was an opportunity seek to remove anomalies. It is fair to say that this one is perhaps even slightly more anomalous than it might appear on the surface. The mode of descent specified by the charter is unusual, and differs from that which commonly occurs in respect of hereditary titles. The monarch’s eldest son is automatically Duke of Cornwall immediately that he becomes heir apparent. However, if the monarch has a son who is the heir apparent and that son dies before the monarch, leaving a son of his own—a grandson of the monarch—the grandson would become heir apparent but would not be Duke of Cornwall because he is not the son of the monarch. It is not just a question of daughters not inheriting the title; it would be that grandsons did not, either.
With the Duchy of Cornwall we therefore have an unusual and interesting piece of English history that does not conform to the standard rules of descent for hereditary titles. However, it is exactly that: a piece of English history and not an issue that is of direct relevance to the succession to the Crown—as the noble Baroness, Lady Hayter, indicated—nor to the other realms of the Commonwealth. I made it clear at Second Reading that it is not the Government’s intention to deal in this legislation with UK-specific matters. This amendment very much falls into that category.
My noble friend Lord Lang referred to other titles, to which the same arguments apply. I tried during my reply at Second Reading to set out what would happen to these. I am happy to write to my noble friend to outline the cases in these situations.
Lord Trefgarne
My Lords, when the Minister writes to our noble friend Lord Lang on the various other titles, would he include an answer to the point I raised at Second Reading: whether the Princedom of Wales can be passed to a female if the sovereign of the day so decides? He was not able to give me an answer to that at Second Reading, as I recall. If he could touch on the matter in his letter to our noble friend Lord Lang, I would be greatly obliged.
Lord Wallace of Tankerness
My Lords, I understand that the creation of the Princedom of Wales, let along the matter of it going to a daughter, is very much a matter for the personal decision of the sovereign. The current Prince of Wales did not automatically become Prince of Wales upon Her Majesty’s accession in 1952; that did not happen until 1958. It is a matter for the sovereign, and I will seek to set that out in a letter which I will copy to others who contribute to this debate.
The noble and learned Lord, Lord Lloyd, raised a query about the efficient running of the estate between 1936 and 1952. There have of course throughout history been stretches when there has been no Duke of Cornwall, and the Duchy continues to today. I pay tribute to the leadership which the present Duke of Cornwall has given. When I was in the other place, my constituency, Orkney and Shetland, could not have been more remote from Cornwall. Even in Orkney and Shetland, however, we were aware of the work of the Duke of Cornwall on his estate. I see my noble friend Lord Maclennan of Rogart in his place. Certainly, closer to home, I know of the work of the Duke of Rothesay in respect of the Castle of Mey estates since he inherited them from his late grandmother. Those tributes were rightly paid.
Succession to the Crown Bill
Debate between Lord Trefgarne and Lord Wallace of Tankerness(11 years, 8 months ago)
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Lord Wallace of Tankerness
My noble friend Lord Forsyth asks why. I think that it raises some very interesting issues that have not been thought through. This is why I say that we should not go down this road. I do not propose to go down this road; I suggest that there is a host of issues, and that is why we should not go down the road proposed by the amendment.
Lord Trefgarne
My Lords, the problem is that the noble and learned Lord says this opens up greatly different avenues. However, frankly, the Government ought to have thought about these avenues before they brought in the Bill.
Lord Wallace of Tankerness
With all respect to my noble friend, that is the reason why the Government have not gone down this road. The Government have actually sought to do three very clear things: remove the male bias in succession; remove the current prohibition on someone in the line of succession marrying a Catholic; and repeal the prohibitions in the Royal Marriages Act 1772 and replace them with others. Those are three very precise points. I made the point that to go wider than that raises the kind of issues I highlighted. That is one reason why the Government have not gone down this road.
Lord Wallace of Tankerness
My Lords, I have already responded to the point from the noble Lord, Lord Stevenson, and indicated that I am not in a position on behalf of the Government to commit to establishing a committee to look at these matters. It is clear that there are committees of this House and indeed of the other place that could do so. Obviously the Government would contribute to any such committee that we had invited to do this, but I do not believe that that is a pathway that is inconsistent—nor did the noble Lord suggest this—with proceeding with the relatively straightforward, although constitutionally important, issues that are in the Bill.
Lord Trefgarne
My Lords, at the end of Second Reading a week or so ago, when the noble and learned Lord, Lord Wallace, moved to refer this Bill to a Committee of the Whole House, I suggested then to your Lordships that it would have been much better considered by a Select Committee of the House to which witnesses could have been called and had their evidence taken—perhaps even a Joint Select Committee involving Members of the other place. However, the Minister refused to agree to that; oh no, we would go to a Committee of the Whole House, as we are now doing.
If ever there was a case of unlooked-for consequences, this Bill is certainly it. There are a number of aspects of this matter that quite clearly the Government have simply not considered or, if they have, they have chosen to disregard. That is really not good enough, and we are going to have to return to this issue at the next stage for sure. In the mean time, I beg leave to withdraw the amendment.
Lord Trefgarne
I do not intend to speak to this amendment at any length. We have covered some of its detail, although by no means all of it, in recent discussions, but I would like to hear what the Minister’s response to it would be. Without wishing to detain your Lordships, therefore, I beg to move.
Lord Wallace of Tankerness
My Lords, the position with regard to this amendment is very similar. It is a different structure for having, as it were, a divergence between the person who is the sovereign and the person who is the Supreme Governor of the Church of England. Some of the difficulties and arguments which were expressed with regard to the regency are also applicable to the slightly different structure proposed in Amendment 11. I am not sure that I can elaborate on that much further as I think that the arguments are very similar.
Lord Trefgarne
I understand what my noble and learned friend is saying. However, the amendment that I now propose does not confine itself to the Roman Catholic faith, or the possibility of the sovereign or the heir to the Throne being Roman Catholic, but deals with all other possible faiths. At the moment, many legal restrictions apply to the Roman Catholic faith in this regard but none applies to Muslims, the Jewish faith or any faith other than the Anglican and Roman Catholic faiths. Therefore, that matter certainly bears additional consideration, but perhaps not today. In the meanwhile, I beg leave to withdraw the amendment.
Lord Trefgarne
My Lords, this is a probing amendment. I am anxious to know—I believe that others may be as well—whether a consent granted or refused by the sovereign in respect of a marriage to which he or she is required to give consent can be challenged in the court by means of judicial review. I should be grateful if my noble and learned friend would clarify the position.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Trefgarne for raising an issue which I think he raised at Second Reading. The effect of his amendment would be to ensure that in no instance could the sovereign’s consent or otherwise to a royal marriage be challenged in the courts. It has to be said that over the 240 years when consent has been required, it has not been tested in the courts. But in the Government’s view the decision, given that it is a decision taken by the sovereign, could not be challenged in the sovereign’s courts. We do not believe it to be necessary to provide for this in the Bill. Indeed, whether the number is six or 12, it is an unlikely event that someone so close to the Throne would contemplate such an action. My point is that the decision would be one made by the sovereign and would not be challengeable in the courts of the sovereign.
Lord Trefgarne
My Lords, I hope that between now and the next stage the noble and learned Lord may on reflection be able to offer a more forthright assurance than that which he has been able to give so far, if I may say so. The fact is that the process for judicial review in this country is a comparatively new one. It has only been going for the last 15 or 20 years. Therefore the fact of there being no precedent is not much of a comfort to the noble and learned Lord, if I may say so. I would be grateful if he would consider this further before the next stage and perhaps take into account the case referred to by my noble friend Lord True.
Lord Wallace of Tankerness
I shall certainly reflect on it further. It will not come as a surprise to my noble friend that this has already been the subject of some reflection. However, if he indeed wishes to return to this at Report, we will do so. To take up the point made by my noble friend Lord True about the Sussex peerage case, my understanding is that this case was not about whether consent had been refused unlawfully. I think the issue was that consent had not actually been sought.
Lord Trefgarne
My Lords, I would like to say a few words about Amendment 17, which I believe is grouped with this one. That is a slightly separate point, if I may say so. I am picking up the point that my noble friend Lord Northbrook has made, that the parliamentary approval process in many of the Commonwealth countries includes a referendum and is over and above whatever Ministers may have agreed over lunch, as my noble friend Lord Forsyth put it. The fact is that parliamentary approval is required in most, if not all, the Commonwealth countries concerned, and in some of them a referendum is also required. Presumably that cannot be done overnight, so it would be better if the Bill came into force when all the Commonwealth countries had consented to it.
We have a problem if some of the countries approve and some do not. You would not have to think too tortuously to conceive of a situation at some future point where the late sovereign’s eldest child in one country was to be their head of state and the second child, who was a boy, was head of state of another. That is clearly absurd, so we need to speak with one voice on this matter as far as the Commonwealth is concerned. It might therefore be best to wait until they have all agreed.
Lord Wallace of Tankerness
My Lords, this picks up on some issues that were debated earlier. I should clarify that the reason why the Bill specifies the Lord President is that the ministerial responsibility for constitutional and elections law currently rests with him. The Privy Council is also involved in constitutional matters. Indeed, credit should go to my right honourable friend the Prime Minister because I do not think that my right honourable friend the Deputy Prime Minister was in Perth. It was not simply a case of discussing this matter over lunch; it was more than that. I think that the noble Lord, Lord Stevenson, was involved in this issue in a previous incarnation under the previous Administration.
Lord Wallace of Tankerness
The noble Lord may not have been involved in any lunches but I think that he was involved in efforts at No. 10 to try to forge some of the agreements to take this matter forward. That indicates that this issue did not suddenly emerge at the Commonwealth Heads of Government conference in Perth, Australia. It was the opportune time, with the Heads of Government being present, for that agreement to be finalised, but a considerable amount of work and discussion went on ahead of that. As I have indicated, the reason why the Lord President is referred to is due to the current ministerial responsibilities.
I am not wholly unsympathetic to the idea that we might have a subsequent form of approval, but it is not common for Parliament to approve commencement orders. This is a commencement order. It is not as if it is an order that will make amendments to anything or promulgate a new set of regulations; it simply commences something which Parliament will already have approved through the proper parliamentary procedures. Indeed, the Delegated Powers and Regulatory Reform Committee, whose reports the House sets great store by, found no fault with this provision. Given that this matter has been debated, I wonder what further steps we could take. The noble Lord, Lord Stevenson, indicated that there might be an opportunity to reassure both Houses that each of the realms had done what was necessary under their own provisions. I am very sceptical about that but it does service to the arguments that have been put to consider it. We have made it clear—I must again give this reassurance—that we will commence the legislation only once we are satisfied that each realm has taken the necessary steps to give effect to the changes. There is flexibility in the commencement date to ensure that the laws across the realms are consistently applied.
My noble friend Lord Northbrook raised the question of referendums. This was also picked up by my noble friend Lord Trefgarne. My understanding is that referendums would be necessary in other realms only if they decided to amend their constitutions. We do not believe that any realm intends to do so. Officials working on this legislation do their utmost to try to keep in touch with the different realms and they have been given no indication by any realm that it intends to hold a referendum. However, as I indicated to my noble friend Lord Forsyth on an earlier amendment, I will do my best to give an update on where each realm is in terms of what process they are proposing. Perhaps in that context I could helpfully clarify the position on referendums. However, I emphasise to your Lordships’ House that it is our understanding that no realm has flagged up that it intends to have a referendum.
Lord Trefgarne
My Lords, I am happy to accept that and I am sure that my noble and learned friend means what he says. However, I had heard that different referenda were needed in the different states of Australia. I hope that he can tell me that I am wrong about that.
Lord Wallace of Tankerness
My Lords, I repeat that I have not heard about any referendums. The Council of Australian Governments is currently considering the means by which Australia will implement the changes to the laws of succession. It is quite properly a matter for each realm to determine for itself how it should do this. I will try to update the House on these matters as best I can.
Lord Wallace of Tankerness
I apologise to my noble friend because I forgot about his point on that. The Future Business indeed indicates that Report will be on 13 March. I know that during these deliberations, I have indicated on more than one occasion a willingness to meet one or more of your Lordships. Someone from my private office is in the Box and will, no doubt, be noting that. I will certainly endeavour to ensure that purposeful meetings can take place and provide an opportunity for discussion in time for any amendments that noble Lords wish to table.
With regard to the list, I should say to my noble friend Lord Forsyth that the reason I perhaps hesitate to say how up to date we can get is that that is something I have been asking for. I understand that being bang up to date and complete is more challenging than it may seem. My officials have obviously heard this debate, and I assure the House that we will make the position as up to date as we can.
Succession to the Crown Bill
Debate between Lord Trefgarne and Lord Wallace of Tankerness(11 years, 9 months ago)
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Lord Trefgarne
Perhaps I should pick up the point that my noble and learned friend made about the princedom of Wales. Would it be in order for the sovereign to make their eldest daughter, the heir apparent, the Princess of Wales?
Lord Wallace of Tankerness
That would be a matter for the sovereign, just as the present Prince of Wales did not automatically become so on the accession of the Queen. I think he was created Prince of Wales in 1958 and that his investiture was some 11 years later. It would be a matter for Her Majesty and I do not think we should be presuming or prejudging this—and in future it would not necessarily be Her Majesty. This is obviously not going to happen at the moment, so it would be a matter not for our present Queen but for our future sovereign to determine.
With regard to the royal titles in Scotland, a number of contributors, not least my noble friend Lord Trefgarne, pointed out that the peerage rules in Scotland are somewhat more generous to women, in some cases anyway. It is certainly our view that in the event of an elder sister becoming heir apparent, the Scottish titles currently held by the Prince of Wales—namely, the Prince and Great Steward of Scotland, the Duke of Rothesay, the Earl of Carrick, Lord of the Isles and Baron of Renfrew—can pass automatically to a female heir apparent. These titles have always hung together and the removal of male bias in the line of succession could therefore not result in the detachment of these titles from the Crown. We have consulted the Court of the Lord Lyon, who is the official heraldry officer for Scotland, on this matter.
My noble friend also asked about the Duke of Edinburgh. The Duke of Edinburgh has a normal remainder to the heirs male of his body, but at the time of the marriage of the Earl of Wessex, it was announced that the Earl would eventually receive the title of Duke of Edinburgh. It is my understanding that there would probably have to be a creation of that; it would not automatically be inherited from his father. I say to my noble friend Lord Carlile that I will investigate further and write to him on the earldom of Merioneth.
This issue also gives rise to the question of hereditary peerages and a number of noble Lords contributed on this, some expressing concern and some hoping that this might indeed open the door to a change in the law. That just underlines the fact that it is not appropriate for this Bill. It goes much beyond the scope of it, although I do not for a moment minimise the importance of the issue. It would certainly not just be the Constitution Committee criticising us if we were suddenly to introduce in this Bill measures that were going to change the order of succession to peerages. My noble friend Lord Lucas reminded us, interestingly, that he inherited from his grandmother and mother but, as he pointed out, hereditary titles can very often go with financial interests and estates. These would not be issues to enter into lightly. As I indicated, they go beyond the scope of this Bill. I also remind your Lordships that even without this Bill, the rules of succession to the Crown already differ in most cases from the rules of succession to the peerage.
Clause 2 possibly generated the most concern and interest, not least because of what the implications would be if there is a marriage between an Anglican and a Roman Catholic. At the outset, let me say that it is important that we remove this element of discrimination, as a number of noble Lords who contributed to the debate made clear. This has been welcomed by both the Church of England and the Roman Catholic Church. I was particularly struck by the contribution of the noble Lord, Lord Janvrin, on the importance of the heir to the Throne being able to have a wider choice as to who may be their spouse. There was a sense of that around your Lordships’ House when he mentioned it. Given the particular challenges that go with the monarchy, I think that the noble Lord referred to the importance of lifetime love and support. That was a very poignant but relevant contribution to our debate.
As I indicated in my opening remarks, it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith. Catholic teaching is clear and perhaps more practical than has sometimes been suggested. The guidance is set out in Matrimonia Mixta, an apostolic letter from Pope Paul VI in 1970, and Pontificium Consilium ad Christianorum Unitatem Fovendam: Directory for the Application of Principles and Norms on Ecumenism, published in 1993. The guidance requires the Catholic partner in a mixed marriage to do their best to have the children raised as Catholics but if, as I indicated earlier, there is a just and reasonable cause which would qualify, such as the protection of the place of the Established Church, under those circumstances the local bishop can grant permission for the marriage. That moves us onto another issue, which I will come on to.
I also indicated that the Archbishop of Westminster has welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic. Indeed, in doing so, he recognised the importance of the position of the Established Church in protecting and fostering the role of faith in our society today. The noble Lords, Lord Luce and Lord Janvrin, echoed by the noble Lord, Lord Thomas of Swynnerton, asked whether it would be appropriate to have further discussions with the Roman Catholic Church. It is clear that there have already been discussions prior to this Bill but I will certainly try to ensure that officials meet representatives of the Catholic Church—indeed, I would be willing to meet them myself. I could not honestly predict the outcome but that suggestion seemed to command some support around the House. I would be willing to see whether that might produce anything that we could report back to the House at a future stage of our proceedings.
My noble friend Lord Lang of Monkton referred to my right honourable friend the Deputy Prime Minister regarding taking the matter to the Vatican. At Second Reading in the House of Commons, my right honourable friend said:
“I want to be clear that there is absolutely no prospect of our entering into discussions with the Vatican in order to bring this Bill into effect”.—[Official Report, Commons, 22/1/13; col. 215.]
The establishment of the Church of England has been a recurring matter that was raised in our debate. My noble friend Lord Maclennan and the noble Lord, Lord Dubs, said that it was an appropriate occasion to give that issue an airing. My noble friend Lord Deben indicated, with considerable passion, how he thinks that trying to address one anomaly while leaving another open is not acceptable. My noble friend Lord Astor raised this issue. I will come back to the Church of Scotland in a moment but my noble friend Lord Trefgarne got it right.
I got the impression that my noble friend Lord Lang was concerned that some of the provisions here might lead to disestablishment, whereas other contributors to the debate—indeed, the noble Lord, Lord Stevenson, did so from the Front Bench—were saying that perhaps this should be an incentive to get on and have that debate. Again, this issue goes beyond the Bill. We believe that nothing in the Bill detracts in any way from the sovereign swearing an oath to maintain the Protestant religion. The proposed changes are limited to removing a discriminatory bar on marrying a Roman Catholic. That would not allow a Roman Catholic to accede to the Throne but I suspect that, as the noble Lord, Lord Stevenson, indicated, this debate is not going to go away. However, I do not believe that this Bill is the appropriate place to deal with it.
The issue is that the Act of Settlement and the Accession Declaration Act, which was quoted by my noble friend Lord James, both make clear that the sovereign must be a Protestant, which of course George I was. The position in the Church of Scotland is that it is not an established church as such; the Queen is not the supreme governor of the Church of Scotland. The relationship between church and state is symbolised by the presence of the monarch or her Lord High Commissioner in attendance at the general assembly; indeed, my noble friend Lord Maclennan’s father was Lord High Commissioner, as several Members of your Lordships’ House have been. Although they are invited to address the assembly, they cannot intervene in its business.
As indicated, the oath of accession includes a promise to maintain and preserve the Protestant religion and Presbyterian Government, but the Kirk has not been established by the state—I declare an interest as an elder of the Church of Scotland—and neither the Scottish Parliament nor the Westminster Parliament is involved in Kirk appointments. To that extent, it does not operate as a state church in the way that the Church of England does. I think that it was the noble Lord, Lord Stevenson, who pointed out that in matters of doctrine, government, discipline and worship, the Church of Scotland is free from state interference, operating under a constitution largely contained in articles declaratory that were recognised by Parliament in 1921. So there is quite a significant difference there, but I suspect that this is an issue to which we will return.
Lord Wallace of Tankerness
My Lords, I beg to move that the Bill be committed to a Committee of the Whole House.
Lord Trefgarne
My Lords, can I persuade my noble and learned friend not to press this Motion at this moment? I am not remotely trying to obstruct the progress of this measure, but I rather think that the Bill would be better considered in a Select Committee. If my noble and learned friend would be willing to put off pressing this Motion until, say, Monday, that would give us an opportunity to consider the possibility.
Lord Wallace of Tankerness
My Lords, we were given notice that my noble friend might raise this matter. We are going to make time available for proper consideration in Committee of the Bill and amendments that will be tabled to it. It has already, as was indicated, gone through the other place with more time allocated to it than proved necessary. As has been said by numerous contributors to the debate, there has been considerable dialogue, negotiation and discussion with the other realms. It has been carefully considered. I hope for and fully expect proper scrutiny when we move into Committee. I will certainly seek to ensure that the time is made available for that to happen.
I recognise the spirit in which my noble friend speaks. We can give the Bill sufficient scrutiny in a normal Committee.