House of Lords (Hereditary Peers) Bill

Lord True Excerpts

Committee stage
Wednesday 12th March 2025 Lords Chamber

[Lord Strathcarron (Con)]

My Lords, I shall speak to this group of amendments in particular and would argue for the retention of the Bishops as currently constituted. I fully appreciate the arguments advanced by noble Lords supporting the group of amendments and equally the intellectual arguments against the Bishops remaining here as advanced by Humanists UK and others.

To the charge sheet against the Bishops, I would add that they are also extremely frustrating politically—at least to those of us on this side of the House—as between 2019 and the last general election they voted with the Government only 4% of the time. Often during the long evenings spent in the Division Lobbies, it seemed as if the Bishops were pre-programmed to vote against anything the Conservative Government were doing, just because it was the Conservative Government doing it.

I also appreciate that they should more accurately be called Lords religious rather than Lords spiritual, as there is precious little spiritual, and a lot religious, in their involvement with identity politics and every fashionable left-wing cause that comes their way. I also appreciate that they are historically illiterate, as seen by the £1 billion target for reparations, supporting the view of the recent Archbishop of Canterbury that the British more or less invented slavery and did absolutely nothing to end it. I also appreciate that they are corporately cataclysmically incompetent, spending precious funds on meaningless virtue signalling while parishes are crumbling around the country.

Nevertheless, the Bishops do represent a continuity with our constitution, history and culture and their presence here acknowledges that there is a power to be considered beyond the material and the political and one which still guides many lives. It is right that this part of life is acknowledged to exist by the Bishops being here. I would also argue that their presence here is a reminder of our religious history on whose behalf many of our laws were written, making what the Bishops represent a kind of canvas on which is painted much about the British constitution we hold dear and which can easily be taken for granted. My argument for the Bishops is that, if we are to lose the soul of this House by removing the hereditaries, we should at least keep the heart of it as represented by the Bishops.

[Lord True (Con)]

My Lords, this is a very serious subject and the fact that some may not consider it to be serious or worthy of a long debate is troubling but, I would submit, it should be troubling above all to the Church of England itself which, to the great distress of many of us, has yielded so much of the spiritual ground in this nation that it once bestrode.

I have said more than once that this radical Bill—one of very few in the history of this House to throw out existing Members—has far-reaching implications. The perfectly logical view is that the removal of one group of Members is closely connected to, and has repercussive effects on, the wider membership of the House. As we have heard, that logical connection elides into the urgent aspiration for exclusion that we have heard in some speeches today. Amendments in both Chambers concerning the Lords spiritual are just one example of this repercussive effect.

The noble Lord, Lord Moore of Etchingham, gave what was, I would give him, not a Conservative speech but a notable Tory speech, to which the noble Lord, Lord Strathcarron, offered a coda. The Lords spiritual have been here since the origins of this House. Indeed, like the hereditary Peers, they were among the creators of our Parliament. They survived Henry VIII’s exclusion of the abbots, to which the noble Lord, Lord Wallace of Saltaire, referred, and when Parliament last decided to throw them out in the Bishops Exclusion Act in 1642, they were welcomed back warmly after 1660.

When the British population moved to the new great cities such as Manchester—again, the noble Lord, Lord Wallace, referred to this—it was considered expedient to create new bishops, although there were not, perhaps, what many of us might consider to be the superabundant numbers in the parishes of today. There was considerable debate at that time about whether it would be possible to limit the rights of bishops to receive a writ to sit in this House. In 1847, the Liberal Government introduced the Bishopric of Manchester Bill, which limited the number of Lords spiritual in this House to no more than 26—that is what we have today.

There was considerable resistance at the time, on the grounds that this interfered with the prerogative and, more objectionably, with the right of any Lord spiritual or temporal Peer to attend the House. But the reality, as people saw it, was that, although new bishops were no longer automatically included and a route of entry was partially closed, no one was being excluded. The House settled on this as a reasonable compromise, as the number of bishops expanded. This House, in its wisdom, has always tended to compromise on matters of composition.

Since 1847, the historic limit of 26 right reverend Prelates has been maintained. There may be no magic in this number. I remember being present at discussions in around 2002, when the Conservative Party was proposing a smaller senate of 300. The right reverend Prelates indicated then that 12 might be the minimum number that would leave them with sufficient capacity to perform their important spiritual advisory duties in the House; I do not know whether that is still the case. They do a lot. After all, last night, one of them—the right reverend Prelate the Bishop of Sheffield himself—stepped in to assist the House by acting as a Teller in a Division. He was voting against the Government, but I have to tell him that he was voting against the Opposition as well—perhaps that is how the numbers are now squared. We welcome the Bishops’ presence in all guises and at all times. When a gash—others would see it as unfinished business—is being made in the body of the House, I wonder whether it is wise to alight so fast on the next group to be excluded: some or all of the Lords spiritual.

In the other place, the Bill faced amendments by a Conservative Back-Bencher to expel the right reverend Prelates, and in your Lordships’ House noble Lords from almost every party have signed up to related proposals—although I noticed that a proposal from the Labour Benches to expel all the Lords spiritual in two years was withdrawn shortly before the first Marshalled List was published. I hope no one in this House felt any pressure to keep quiet.

My noble friend Lady Berridge tabled Amendment 90B to require Writs of Summons under the Bishoprics Act to be vetted by the House of Lords Appointments Commission. My noble friend Lord Hailsham took the same line, perhaps even more vehemently, but from a different angle. Although I understand my noble friend’s thinking and salute her constant stand on issues of propriety, which is greatly admired in this House, I am afraid it is an amendment we cannot support. The Church has its own rigorous processes for the selection of bishops, culminating in the Crown Nominations Commission, and it does have processes on conduct, to which no one is immune. Giving a veto to HOLAC would, in my submission, fall foul of the constitutional principle put forward by the noble Lord, Lord Butler, in our debates on Monday.

My noble friend Lord Blencathra proposes the immediate reduction of the Lords spiritual from 26 to 5 in his amendment, which would also introduce a retirement age. That number would be too small, even if we were to move, for the reasons I have given. My noble friend Lord Dundee proposes 20 and my noble friend Lord Hailsham goes a step further by seeking to exclude all future bishops and archbishops of the Church of England from taking a seat here. These amendments have gained support formally from other parties, with signatures, as we have heard tonight, right across the Chamber.

I am glad that the Labour Back-Bench amendment was withdrawn. My party would have opposed it, as I oppose the amendments of my noble friend Lord Hailsham. It is true that, with 890 votes cast by the right reverend Prelates against the Government of which I was a member, and only 36% in favour—the highest percentage of votes against a Government ever recorded from those Benches, in four successive Sessions—noble Lords might think I have some animus in the matter. I do not, because I am a generous soul and I was brought up an Anglican. I believe that considerations of party advantage or disadvantage should not enter decisions about classes of Peers who should sit in this House.

As I said at Second Reading, it will not be long before the Bishops are the only Members not appointed under the 1958 Act. This Bill starts down a path that I fear we will be hard-pressed to close off, with the wholesale removal of blocks in the House; first the hereditaries, then perhaps the Bishops, and then, if Labour honours its manifesto pledge, the over-80s too.

I agree with the wise words of my noble friend Lord Strathclyde on the spiritual dimension. We do not support the removal of the right reverend Prelates. Every institution gains from a spiritual dimension. Taking them out now would simply add to instability in the House, give scant recognition to their important role inside and outside the House, including the territorial dimension, and walk without due consideration into a difficult debate on the disestablishment of the Church and, as my noble friend Lord Moore of Etchingham said, perhaps even the role of the monarch in the Church.

Heaven knows, some of us yearn to hear the Christian voice raised more clearly in witness to the nation and not see it dimmed further. Change, such as is proposed in these amendments, to remove or lessen that voice in this House would require the most careful consideration and debate. I hope that my noble friends will agree not to press their amendments.

[The Lord Privy Seal (Baroness Smith of Basildon) (Lab)]

My Lords, this group of amendments has raised a number of issues. We have heard impassioned and deeply held views on both sides of the argument. As the noble Lord, Lord True, says, this was debated in the other place, where it went to a Division and was lost by 320 or so votes.

A lot of noble Lords made the point that it is important we recognise that, in this House, we welcome people of all religious faiths and of no religious faith. They all add to the diversity of this place.

The noble Lord, Lord Wallace of Saltaire, made the point that there are questions about the future of this House and its composition, as noble Lords have commented on. We have made proposals about what kind of alternative second Chamber could replace the current House of Lords as a long-term ambition. It would be something more representative of the nations across the UK. That would be consulted on, including with the public, with soundings taken as to how they feel that an alternative second Chamber would best suit them.

There are different kinds of amendments in this group. The noble Lord, Lord Blencathra, and the noble Viscount, Lord Hailsham, are looking to remove or reduce the number of Lords spiritual. The noble Baroness, Lady Berridge, who has considerable expertise and respect across the House and the country for her views on safeguarding issues, wanted to amend the Bishops Act to enable HOLAC to approve any Bishops. In fact, the only two groups that HOLAC does not comment on are the hereditary Peers, who come in through by-elections, and the Bishops.

I agree with the noble Lord, Lord True—it is nice to be able to say that from the Dispatch Box—in that I am not sure that a role for HOLAC regarding the Bishops is appropriate. The Bishops have their own method for being considered and an approval process before they come to this House.

I am grateful to the right reverend Prelate the Bishop of Sheffield for his comments on this issue. He will have heard what Members have said. I think his voting record in the future may confound us. My experience of the Bishops is that they challenge the Government, whoever the Government of the day are. He was a Teller against the official Opposition and then the other night he was a Teller against the Government. I suspect that we may see this on other issues as well.

We welcome the presence of the Bishops here. They will have heard the comments from noble Lords; some were more measured than others and some were more supportive than others. There is a place in the House for the Bishops at the moment. However, if there are wider discussions on any future composition of the House, the Bishops will be part of them. But, at this stage, I request that the noble Lord withdraws the amendment in his name.

--- Later in debate ---

[Lord True (Con)]

My Lords, I have signed the amendment in the name of my noble friend Lord Lucas in this group, but that is not because I agree with every aspect of his amendment. I am not sure that any amendment is necessary to achieve the purpose that he and some others who have spoken want to see. Indeed, it could have the negative effect of locking the absolute right of the Crown to create any form of peerage within the frame of the 1958 Act, which, among other things, says that all peerages created under it can be only baronies. I support the amendment because I have long advocated the course that it seeks to enable, and I sense support for that in the Committee. It seeks the creation of peerages that do not entitle a person to a writ to sit in the House of Lords.

The nation will always want to honour those who are most distinguished among us with the high honour of a peerage, yet, as we have heard, not everyone who might be glad—or perhaps hungry or avid—to accept or secure an honour will wish to undertake the sometimes arduous role of playing a part in your Lordships’ House. We all know such people. We have all have known also some who walk the narrow tightrope between honour and duty.

I do not subscribe to the view that all who come here must smash the pain and endurance barriers in participation or attendance. I deplore the fact that some of our number, including much-respected colleagues on the other side, are being measured in this way in a current media campaign against the House. However, I acknowledge that many in this House and outside have high expectations that someone who accepts a peerage should be active in this House. The noble Earl, Lord Kinnoull, reminded us of the wording of our summons in an earlier debate.

As some have argued, if we were able clearly to separate those who wish to play a role in Parliament and those who do not, it would, at the lowest argument for such a proposition, reduce at least some of the inflow in headline numbers to this House, to which many attach importance. In short, as argued by my noble friends, and as I would argue, you could have on one side Lords created under the 1958 Act, with all the expectations of a Writ of Summons conferred by that Act and the accompanying duty to take part, and another set of Peers honoured with the same degree of barony—even, potentially, a higher degree—who had no wish to be in this place but who have been proved deserving of such an honour. That is surely perfectly possible.

I have argued this case to at least three Prime Ministers, but the usual reply comes that the law is uncertain. I do not think it is that uncertain, but, if it is, let us, while we have this Bill before us, rally round my noble friend’s amendment, or some variation of it come Report, and make it certain. This would be an exceedingly useful change for the body politic.

The Life Peerages Act did not create a novel concept of a peerage for life. That had existed for centuries. It corrected two problems that had arisen in decisions by your Lordships’ Committee for Privileges. In 1922, in the Viscountess Rhondda case, it decided that a woman could not sit in this House—a shameful judgment, in retrospect—and in 1856, in the Wensleydale case, it concluded that a life peerage did not confer on a man a right to sit and vote in Parliament.

The Wensleydale case is germane to this argument because, although the House held that Sir James Parke’s life peerage did not entitle him to sit or speak in the House—he was later, as many of us know, given a hereditary peerage to allow him to do so and to take up his role as a Law Lord—the Committee for Privileges did not and could not extinguish his life peerage, which remained in existence as a perfectly proper exercise of Queen Victoria’s prerogative as the fount of honour. The issue was whether the hereditary Peers wanted to have him as a life Peer. Although it was said at the time that the creation of a life peerage for men might have fallen into disuse, the Wensleydale barony showed that it had not.

Furthermore, long after the Restoration and into the 19th century, monarchs created peerages for life which did not confer the right to a writ to sit in this House. Charles II created 10, I think; James II created one; William III created at least one; George I created three, I think; and there were others later into the 19th century. They were all for women—and maybe that explains why Charles II created 10 of them. Sadly, in those days, because they were women, they were unable to sit.

The power to create such peerages without the right to sit is, therefore, in my submission, absolutely inherent and current in the Crown. That was also the conclusion of the Lord Speaker’s committee on the size of the House in 2017, in, I believe, paragraphs 25 and 26 of the report. I see the noble Lord, Lord Burns, indicating assent.

Whenever we listen to the Letters Patent at Introductions, we hear reference, after the words

“in pursuance of the Life Peerages Act 1958”,

to another phrase:

“and of all other powers in that behalf us enabling”.

Among those other powers is, clearly, the power to create other types of peerage than a life peerage under the 1958 Act. Indeed, we had peerages under the 1876 Act until lately.

I submit that a Prime Minister could advise the monarch tomorrow to create a life peerage that did not entitle the Peer to sit in this House. I submit that that would be a useful innovation that would be widely welcomed on all sides, whether you were to call it modernisation or, as I am asserting, a useful revival of a custom of the past. It would, frankly, be a far more useful modernisation than what is in the Bill before us. I commend this proposal to the House, as I commend the purpose of my noble friend’s amendment. It is a change that is long overdue and does not require legislation. If Sir Keir Starmer were to take it up, I think it would be widely welcomed as a modern and sensible innovation.

[The Attorney-General (Lord Hermer) (Lab)]

My Lords, I thank the noble Lord, Lord Lucas, and the noble Earl, Lord Dundee, for their amendments and for the brevity with which they spoke. With the greatest respect to their Lordships, the Government do not consider the amendments to be necessary or appropriate.

The reason why is that the Government believe there should be clarity both in your Lordships’ House and in the public at large as to what a life peerage is and, importantly, what the responsibilities are of those accorded the privilege of appointment. The granting of a life peerage, as we all know, brings with it responsibility for the work of your Lordships’ House: scrutinising legislation and holding the Government of the day to account. As my noble friend the Leader of the House has said, Peers should be appointed not only in recognition of their skills and expertise but in anticipation of those skills being put in service to your Lordships’ House.

The Government believe there is obvious benefit to the reputation of Parliament that the role of life Peers is well understood by members of the public. It may be thought that it would be apt to confusion if there is another class bearing the same name but not carrying with it the same obligations.

By contrast to the life peerage, the honour system represents the monarch’s recognition of past service or achievement without any obligation to future service. We do not consider that there is a clamour, either in Parliament or among the public, for some form of superannuation to the honour system so that some would bear the same title as life Peers who work in this House.

For those reasons, I respectfully ask that the amendment be withdrawn.

--- Later in debate ---

[Lord True (Con)]

I am sorry to persist. It is clear that we are getting nowhere on this tonight, but I believe this is a very constructive proposal. I am very disappointed by the noble and learned Lord’s response. A peerage is a peerage; a barony is a barony, whatever it is, under whatever part of the prerogative or Act of Parliament, or otherwise, it exists. As the noble Lord, Lord Burns, pointed out, we have retired people, we have hereditary Peers—the public are not reeling about in confusion. It may be that the noble and learned Lord is reeling about in confusion, but there may be many ways and many things that attach to the possession of the title “Lord”, just as if you have a knighthood, you can be a cricketer or a captain of industry, or many other things. The noble and learned Lord is ingeniously trying to create difficulties where, frankly, none exist. I would have thought this modernising Government would have the imagination to take a step forward.

[Earl Attlee (Con)]

My Lords, at the risk of being sent to a re-education camp by my Chief Whip, I find the noble and learned Lord’s argument more persuasive. However, I gave no notice to the Minister about my issue on styles. Can the noble and learned Lord give some careful consideration to that in due course and write to me on it?

Succession to the Crown Bill

Lord True Excerpts

Wednesday 13th March 2013 Lords Chamber

Moved by

[Lord True]

1: After Clause 1, insert the following new Clause—
“Royal marriages: heirs of the body
(1) A marriage is a Royal Marriage for the purposes of establishing the claim of any person to succeed to the Crown as heir to the body if that Marriage is a marriage between a man and a woman.
(2) A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage.
(3) This section does not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply.”

[Lord True]

My Lords, as this amendment was on the Marshalled List in Committee I can be brief, because I set out the detailed points then. However, I repeat that I do not make these points in relation to the Marriage (Same Sex Couples) Bill and would deplore any attempt to obstruct that Bill by invocation of any issue involving the Crown. I believe that that would be a dereliction of Parliament’s duty.

My concern arises from the security of the 17th century term “heir of the body”, the governing definition for the right to succession, as it might be constructively tested in the courts in modern conditions: namely, the emerging legislation for same-sex marriage and the techniques of surrogate childbirth. On the first, it will clearly be lawful for a monarch or an existing heir of the body to enter into a same-sex marriage when that Act becomes law. After all, one hesitates to imagine the circumstances in which either Clause 3(3) of this Bill were used to frustrate an intended same-sex marriage —a novel interference with rights, as others have pointed out—thereby denying that person succession to the Throne, or indeed where there was no intervention and the marriage was accepted in some of the realms and not others.

In such circumstances, the then Prime Minister would find himself in the uncomfortable position of Lord Salisbury in 1890, when Queen Victoria suddenly became enthusiastic about a possible Catholic marriage for the second in line to the Throne. I do not want to take this issue further; I simply lay on the record the potential for conflict.

However, I do want to pursue the issue that follows inevitably from the possibility of a lawful same-sex marriage. From that, and indeed from the position of a royal couple who cannot conceive a child, there follows the question of whether a child could be argued, in the 17th-century language, to be an heir of the body. I pointed out in Committee that the relevant statute refers to an heir of the body being defined from one person, not from both, in a couple.

In Committee and in a most courteous letter to me, my noble and learned friend Lord Wallace, whom I thank for his handling of the Bill, which has been outstanding, said:

“Only a natural-born child of a husband and wife can succeed to the Throne”.—[Official Report, 28/2/13; col. 1217.]

If that is so, and it has always been understood to be the position, those words would also exclude any claim to becoming a monarch made in the future by a child born of a Queen—an heir of the body of a Queen—who was not engendered by the sperm of a consort, even though that would-be heir might have been from an egg of the Queen, carried by the Queen and born of the body of the Queen in a lawful same-sex marriage. We all agree that that is the common law. I simply ask whether the common law is proof against any claim to a right that might be entertained in future, either in the European Court of Human Rights or anywhere else. It need not arise directly in the case of an existing heir but in a less proximate person, who then, by accident, became the heir to the Throne.

In his letter to me, my noble and learned friend said that the European Court of Human Rights would not entertain such a claim because the right to succeed is not a family right, a property right or a civil right. Let us hope that that is so, although it is territory into which I am not qualified to go. He further argues, however, by citing to me the Human Fertilisation and Embryology Act 2005, that an heir of a Queen’s body alone could not succeed. I raised this in Committee and referred to it as being potentially less than conclusive as a defence of the definition of “heir of the body”, given the nature of the drafting of the statute.

The relevant section refers to,

“any dignity or title of honour”.

The words “of honour” were left out in my noble friend’s letter, although I think they are significant as, by my interpretation, honour is surely something that flows from the Crown. My noble and learned friend also argues that a lesser dignity must surely encompass a greater dignity. Again, I am not qualified to answer that question, but clearly removal of any doubt as to whether the Crown is encompassed in that 2005 Act would simply solve the matter. It would debar an heir of the Queen’s body who was not the genetic heir of the monarch and his or her consort in whatever form of marriage.

Amendment 9 in the name of my noble friend Lord Elton, which I support, picks up the point that I made on this in Committee and suggests a simple amendment to the Human Fertilisation and Embryology Act. It would not offend against the Perth agreement, as it simply clarifies beyond doubt what the Government and most of us in this House believe to be the law, and it fireproofs it against attack.

It may be that these occasions seem remote but, as history shows, nothing is ever certain. In Committee, I raised the d’Este case—a challenge for legitimacy by the son of Queen Victoria’s uncle, the Duke of Sussex—as an example of a would-be royal heir having recourse to the law. Although my noble friend argued that he did not appeal to the courts, he did appeal to your Lordships’ Committee for Privileges, which was, and still is, the appropriate place for the test of a peerage.

My noble and learned friend, in his letter, says that Sir Augustus did not challenge the legitimacy of the Royal Marriages Act. That is technically correct, but he was arguing that his parents’ marriage, and therefore his right to succession, was valid on other grounds in that the Royal Marriages Act did not apply. It would be a parallel case for a future claimant to go the courts here or abroad to argue that the Human Fertilisation and Embryology Act did not rule out his or her legitimate claim.

Human nature is such that what happened once, however unlikely it may seem, might happen again. Given that it is the duty of Parliament to relieve the monarchy of any potential controversy, this matter could and should be put beyond doubt. I believe that my noble and learned friend has offered a simple way to do that. While I shall not in any circumstances be pressing my amendment to a Division—I never intended to do so—I support my noble and learned friend in seeking to clarify the 2005 Act beyond all doubt. If it is not appropriate to do it in this Bill—I have heard that argument from the Front Bench—I hope that this potential loophole can quietly and efficiently be closed some time in the future. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

Without a lot of thought, I am not sure that I want to embrace that particular analogy. The point I was seeking to make was that if the transmission of a title of the peerage is not affected by the developments that appear in the legislation, a fortiori nor should the succession to the Crown be affected. It is obviously far more significant—I am searching for the right adjective—and of far greater importance than the transmission of a title. Therefore, our belief is that that would not be affected and that in this case the lesser must include the greater.

I have also indicated that with regard to the heirs of the body, it is the position, which my noble friend Lord True accepted, that only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear as a matter of common law. He then went on, as my noble friend has done, to raise more recent statutes. However, as I have indicated, my noble friend Lord Jopling raised an important point about where the child is the natural child of the mother and father. I want to reflect on that; it is only proper to do so. I shall certainly advise and write to my noble friend, and copy the letter to others who have taken part in this debate. On that basis, I invite my noble friends not to press their amendments.

[Lord True]

My Lords, I thank my noble and learned friend and all those who have contributed to this short debate. I fully accept the comments made on subsection (3) of the new clause proposed by my amendment.

As I said at the outset, I do intend to press this matter, although I remain troubled even after what my noble and learned friend has said. I make it clear to him that, although I accept his argument that a marriage is a man and a woman and natural-born child thereof as a matter of common law, my concern arises that, as the law may evolve, that understanding may be challenged. I hoped and thought that I had made that clear to your Lordships. Once same-sex marriage becomes part of the settled life of our kingdom, the law will inevitably evolve in response to that reality. A birth of this kind would not be open to a monarch who was in a same-sex marriage. The question would therefore arise about whether such a monarch could have a legitimate heir of the body.

This may seem fanciful to some; it may seem long in the future. However, I believe that Parliament should reflect on the points made in this debate—I was grateful to hear my noble and learned friend say that he would do so—including on the very important point raised by my noble friend Lord Jopling.

The position as I understand it as a layman is that there are certain defences against a potential claim. One is the common law, which may or may not evolve and which may or may not be challenged in the European courts. I hear what my noble and learned friend said, although I have heard that said about many other things which have come to be challenged in the European courts. Furthermore, as I said, the position may not be challenged absolutely on the question at the moment of succession; it could be a matter that arises within the Royal Family. A right is established, and then a right of family and right of property, and then, by accident, that person at a later stage becomes the heir to the Throne. I remain a little concerned as to whether that is a defence.

I heard what my noble and learned friend said about the Human Fertilisation and Embryology Act. I was extremely grateful for the assurances that he gave and the promise to look at it further. The Crown to my mind is something sui generis; the law of the Crown is something separate. It seems to me, as a humble layman construing that reference to dignity and titles of honour, that that was not intended to refer to the Crown.

Therefore, the question potentially lies open and I submit with respect to your Lordships that, at some stage in the future, the matter should be closed. I do not intend to press my amendment, but I shall watch with interest what my noble friend Lord Elton may do at a later stage. However, I hope that, at some point, any scintilla of uncertainty—and I believe that there is uncertainty—will be removed. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

[Lord Mancroft]

My Lords, I am delighted to support my noble friend’s amendment. I start by saying to my noble friend Lord Hamilton that I have not always shared flats with people who are noble and certainly not always with my friends, but that is slightly beside the point. When legislating, we should always adopt the precautionary principle. The amendment before us is not a matter of principle; the principle is in the Bill: that the sovereign should retain consent. The amendment is merely about the practicality of numbers.

My noble friend in moving the amendment talked a bit about the past, about Queen Victoria’s family and George III’s family. I have a faint connection with a 20th-century royal family which, like many of them, no longer has a kingdom. I happen to know that there was some unhappiness in that family and did some research to look at it.

Between 1933 and 1994, which is 61 years and the length of the current sovereign’s reign, there were three generations and three successions in the German royal family, but, during that time, 17 individuals were removed from the line of succession for marital reasons and, in that, seven marriages were removed from the list. They are the only ones whom you can see by doing a little bit of research. Those 17 individuals all had children and grandchildren who would have been affected. So that is an incredibly short period of time and an enormous change, mostly for religious reasons, because that family, too, had difficulties over Catholicism and Protestantism.

It is worth remembering that when this Bill was mooted and was in the newspapers, everybody drew attention to the fact that if it had been passed during Queen Victoria’s reign, her eldest child, Princess Vicky, would have become Queen of England and the Kaiser, whom she married, her consort. The Kaiser would have been King of England and emperor of Germany. The family that I have been talking about would have been our Royal Family in this generation, with their 17 individuals and seven marriages moving on and off the list of six.

There are indeed differences, as my noble friend said, between the 18th, 19th and 20th centuries. There has of course been a decrease in mortality, particularly infant mortality—thank God that we have far less of that than they did in those days. However, we have an increase in marriages. A friend of my father once asked him what my sisters did. He said, “They marry, long and hard and often”. Quite a lot of people do that in the 21st century. More and more people have more and more marriages. One of the princes in the German royal family, Crown Prince Wilhelm, an eldest son, was married four times and had goodness knows how many children. That is not very long ago. I hope, and we all pray, that there will not be tragedies in the Royal Family—but there have been. We all know what happened to Lord Mountbatten and his family, not far from the sovereign. We hope that that will not happen, nor that it will be illness or death, but, undoubtedly, there are changes in families. Those 17 individuals were not all direct father-son-grandson in 60 years; many of them were siblings, and those siblings had children and grandchildren.

No one suggests that we go back to the idea of all the descendants of King George II, hundreds of people, having to get their marriages approved, but, under the precautionary principle on which we legislate so often, six seems rather a small number.

[Lord True]

My Lords, I have my name on this amendment, which I support strongly. When I intervened in Committee, I pointed out rather flippantly that if this provision goes through and the child that we expect is born, the Deputy Prime Minister will have to explain to one daughter of the Duke of York why she has to ask permission but not the other. That explains one of the many illogicalities which might arise from the number six.

When one legislates, one should go with the grain of what the public perceive to be reasonable. Why did we ever have this sort of legislation in the first place? It was because the then monarch was concerned about the impact on the image on the Royal Family of marriages which were being undertaken within the Royal Family. He cast the legislation wide because he had a wide family; indeed, it was not his children’s marriages that originally concerned him, hence it was thrown back to King George of the earlier generation. I am pleased to say that our Royal Family is not viewed in the same way as was the Royal Family in the 18th century.

--- Later in debate ---

[Lord Wallace of Tankerness]

I hear what my noble friend says, and he makes that point well. It is, indeed, as I and the noble Baroness indicated, an additional requirement and impinges on the lives of individuals. The Bill is trying to seek that balance. It is not a question to which there is one, and only one, right answer. As the noble Lord, Lord Deben, said, it is a matter of judgment. While my right honourable friend the Deputy Prime Minister would no doubt love to take credit for everything that has been put into the Bill—he has ministerial responsibility for constitutional matters and this legislation—I pay tribute to my right honourable friend the Prime Minister who, like his predecessor, sought to get agreement with the other realms and was party to the announcement of the agreement that was made at Perth. The noble Baroness, Lady Hayter, rightly says that this was not part of the Perth agreement, but it was flagged up at the Heads of Government conference in Perth that we would be seeking changes to the Royal Marriages Act 1772. That was followed by Prime Ministerial correspondence, on which agreement was reached on the number six.

My noble friend Lord Lang referred to a letter to the noble Lord, Lord Trefgarne, in which I said that procedural matters would not require the consent of all the other realms. Indeed, there are procedural issues in Clause 3 as to how, for example, the consent has been obtained and signified. However, substantive matters on the succession to the Crown—to which I referred in the debate on the previous amendment and which get into the spirit of the preamble to the Statute of Westminster Act 1931—would require the agreement of the other realms. This impinges on the succession to the Crown. Indeed, the New Zealand legislation, of which I have a copy somewhere here, specifically makes provision for six with regard to those who would require the consent of the sovereign to marry.

The noble and learned Baroness, Lady Butler-Sloss, asked about civil partnerships. Civil partnerships do not require monarchical consent, as a civil partner does not necessarily assume the public role expected of a spouse as sovereign. She also raised same-sex couples, which came up in an earlier amendment moved by my noble friend Lord True. The Government believe that marriage as stated in Clause 3 of the Succession to the Crown Bill means marriage as defined by the jurisdiction in which it takes place. If we take this away from the issue of same sex—to take away from, as my noble friend Lord True said in moving his amendment, the controversy that might surround that—different jurisdictions very often have different rules on marriage. As a simple example, the age for marriage without parental consent was different from that in England. If it was a legitimate marriage in the law of Scotland, it would be recognised as a marriage, albeit that it would not necessarily have been a legal marriage under the law of England.

[Lord True]

Before my noble friend leaves that important point—and I accept what he says about civil partnerships —is he saying that the Government are knowingly legislating for a position where the monarch’s Ministers in one country may advise that a same-sex marriage should be disqualified from the succession to the Throne, but in another of the Queen’s dominions, the Crown’s Minister will give opposite advice? Is that what the Government are recommending to Parliament?

[Lord Wallace of Tankerness]

My Lords, that is not what I am saying. It depends on the jurisdiction of the place where the marriage is contracted. I believe I am right in saying that under the law of Canada, same-sex marriage is legitimate. If, therefore, hypothetically there was a same-sex marriage by someone perhaps well down the line of succession to the throne in Canada as of today, and that was lawful under the law of Canada, that would be a marriage. It hat is not a question of Canadian Ministers giving consent, which might be different because the law in the United Kingdom is different. There might even be different laws in the near future between Scotland and England, depending on the timing of legislation. It is not a question of Ministers giving consent; it is the actual law that is in place in a particular jurisdiction at a particular time.

It is a matter of judgment. I say that quite frankly to the noble Lord, Lord Deben. The Government believe that six is the appropriate number. That is what history suggests is necessary. No more than three have been required in the last 240 years, and there is some added leeway. As I said, with any legal restriction, if we impose a legal restriction we should limit it as far as possible. While I fully recognise the strength of the arguments that have been put forward, I have not heard sufficiently strong arguments that we should extend this legal restriction more than we believe is necessary to take account of the historical number of places to get to the throne, and double it up for that matter. I know how strongly my noble friend feels about this, because we have discussed it in the past. If he feels that it would be helpful to have further discussion on it, I am more than open to that suggestion. In the mean time, however, I invite him to withdraw his amendment.

Succession to the Crown Bill

Lord True Excerpts

Thursday 28th February 2013 Lords Chamber

Moved by

[Lord True]

3A: After Clause 1, insert the following new Clause—
“Royal marriages: heirs of the body
(1) A marriage is a Royal Marriage for the purposes of establishing the claim of any person to succeed to the Crown as heir to the body if that Marriage is a marriage between a man and a woman.
(2) A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage.
(3) This section does not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply.”

[Lord True]

My Lords, I apologise for not having contributed at Second Reading. I had put my name down to speak but I was unavoidably delayed in coming to the House and rang to withdraw my name. However, I did listen to all the very thoughtful debate that I was able to. A core concern from noble Lords on either side of the argument was that succession to the Crown should be removed from controversy. I share that view and it is in that spirit alone that I have raised the issues in this amendment which were only momentarily touched on in another place.

I must also apologise for the lateness in tabling the amendment. This is because I have been involved in discussions with the Public Bill Office until yesterday morning about the most appropriate form of raising this matter. In some respects, the questions raised here and in Clause 2 are the same and that is whether there is an unintended risk, if certain issues are not addressed with clarity and foresight now, of future controversy over the succession and even of a disastrous unintended consequence of dividing the Queen’s various realms.

Two modern social developments lie behind this issue. The first is the techniques and ethics of the procreation of children and social attitudes towards them which have been fast-changing, still are changing and will continue to change. Secondly, at some time in the future a monarch and his or her consort may wish, where no other course is available to them, to seek to procure a child by use of a donor. That child, the first of whom would have been the heir if born naturally, would become a much loved member of the Royal Family and one whom many might wish to see as their monarch. There are clearly seeds of controversy there. The second issue is that it seems likely that the Parliament of the United Kingdom, although not those of all Her Majesty’s realms, will very shortly legislate to allow same-sex marriage. These measures, taken together, will alter for all time the concept of what a family, including, potentially, a Royal Family, could be.

I must make it clear that I take no view on same-sex marriage for the purpose of this issue. In case anyone should think there is an ulterior motive, I should make it clear that I do not believe that all the consequences of that momentous social change have been thought through and I would not have been inclined to take the step without more notice to the public and wider and more open consultation. Be that as it may, I did not want to raise the issue of the Crown, in any circumstances, in our debates on the same-sex marriage Bill, lest it be seen as an attempt to use the monarchy as a device to debate that Bill. That would be deplorable: I would not and will not take such a step. The issue is, none the less, fast upon us. As we are legislating in this Bill to change the laws on royal marriage and succession, it would be wise to reflect on the potential impact on the Bill also now before Parliament on same-sex marriage and how those two Bills might, in future, interrelate.

The governing phrase as to the conveyance of the right of succession in the Bill of Rights, which is reused in Section 1 of the Act of Settlement and is left unchanged by this legislation is that he or she be the “heir of the body” of the Electress Sophia of Hanover and her successors, being Protestants—which we will discuss later. There is surely scope for contentious argument, if not litigation, over what, in the new circumstances of the 21st century, is the definition of those ancient words “heir of the body”. That phrase does not require that the heir should be the heir of two specific bodies. Indeed, the originating Act of Settlement includes reference to the body of a monarch and a prospective monarch alone. What then if, in the context of either a different or a same-sex marriage—the question is immaterial—the sperm of a King is used to procure a child of his body on a donor woman or, even more directly, a child is born from the body of a regnant Queen by use of a donor? Some might ask whether the child is the heir of the body of that regnant Queen. This is the only method by which an heir of the body could be procured by a same-sex married monarch, and the human impulse of such a loving couple may well be to seek to procure such an heir. Will some not see that child as a legitimate heir of the monarch’s body if that marriage has been accepted by the British people? Might that child not feel that he or she has, in turn, a human right to expect to succeed to his or her mother or father?

I am grateful for the correspondence I have had with my right honourable friend the Attorney-General on this subject. It is not for me to place his opinion before the House but, in essence, I am reminded that the laws governing succession require that the descendant be the natural born child of a husband and wife, that they have been enshrined in our constitution for generations and that they have become part of our common law. Indeed so, but we are about to legislate, specifically and deliberately, to change the law of marriage in this realm. As we are often reminded, what is long enshrined in the common law of England is not necessarily proof against legal challenge, not least in the field of equalities and human rights. I would like to be assured that the common law will continue to be an adequate bulwark against division and controversy.

It has also been put to me that Section 48(7) of the Human Fertilisation and Embryology Act 2008 is worth noting. This Act states that nothing in the Act that relates to parenthood,

“affects the succession to any dignity or title of honour or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.

It may well be that the Crown is encompassed within that definition as a dignity, and the word “dignity” does indeed occur in the 1700 Act. However, it is not so explicitly stated and certainly not in a way that is clear to tens of millions of non-lawyers who are subjects of the Crown. The public rightly see the Crown as separate, distinct, beyond and above. It is, indeed, the fount of all title or dignity of honour. It would be wise to put it beyond all doubt or challenge that the succession to the Crown is engaged by the Human Fertilisation and Embryology Act. Furthermore, are we certain that it is not arguable in a court, in default of a statement to the contrary, that the UK Parliament had decided, in legislating to redefine marriage, to alter the nature of marriage completely and thus that, in the context of a fully lawful same-sex royal marriage, the definition of—I return to the words—an heir of the body in the Act of Settlement might constructively be widened by the courts from the hitherto understood common law definition as it applies to the UK Crown. It might be wise to put the fact that Parliament had no such intention—if it does, indeed, have no such intention—beyond any doubt.

My right honourable friend the Attorney-General and my noble and learned friend on the Front Bench, who has been saying this again today, have argued that it would not be appropriate to go beyond what was expressly agreed by the realm Heads of Government in Perth. I accept that argument but I am not arguing that we should go beyond that: quite the reverse. I am simply suggesting that we should put in the clearest possible stops and stays to ensure that we can never, in this realm alone, be taken by legal process and challenge, rather than deliberate decision of Parliament, beyond what was agreed and where other realms might wish to go.

Our Queen is monarch of 16 realms, in not all of which is the view embodied in the legislation on marriage now before Parliament shared or likely to be shared. In Canada, gay marriage is already legal, the Australian Parliament has recently rejected it. A divergent view on the legitimacy of a royal marriage might, and a divergent view on the legitimacy of an heir would, break the union of realms. In 1837, the dominions of the Crown were irretrievably separated because of differing rules on the succession. Hanover did not allow female succession, so Queen Victoria could not rule Hanover, which passed to her uncle. It seems inherently unlikely that in the present diverse evolution of social policy in the Queen’s realms that any progeny of a same-sex marriage—even same-sex marriage itself—would be accepted in at least some of the existing kingdoms. Is it not important, therefore, that those realms, at this time of change both in the rules of succession and in the UK in the law of marriage, should all be held explicitly to a common understanding of what a royal marriage and, most importantly, an heir of the body means for the purposes of succession?

--- Later in debate ---

[Lord Elton]

I accept that that is the current position. I hope that we shall be reassured if it remains the same on Report.

[Lord True]

My Lords, I am grateful to those who have participated in this short debate and apologise for the length of my opening remarks. However, this is an issue of profound potential importance, not only as it affects our country but the Queen’s realms as a whole. It is inherent in the Perth agreement that we have an acquis agreed by all the realms, and no door should be left open to the crawling peg of equalities, rights and other challenge by a potential heir who is excluded from the Crown—as they feel, unfairly—against their rights by the existing deposit of the law.

I am not a lawyer, but I am concerned as an historian that the base of the law and the phrase “heir of the body” is a very ancient phrase which is buttressed only by the common law and the doubtful cover, in my view, of the clause from the Human Fertilisation and Embryology Act that I cited. I agree with the interpretation of my noble friend Lord Elton that that Act may be deficient in terms of providing protection for the Crown from the kind of challenge that might arise. My right honourable friend the Attorney-General made this point to me also, but I am afraid that I do not find full comfort in the remarks made by the Lord Chancellor at a time when the developments in the technology and science of birth and reproduction, and certainly the developments in the nature of the law of marriage, were far distant in the future and not necessarily conceived of. I say to the noble Baroness that this might be remote, but perhaps people thought before 1936 that certain things might be remote. It is the duty of Parliament, when legislating on something as grave as the succession to the Crown which Her Majesty holds on our behalf, to think about the future. It may, of course, be no more remote than that the child whom we all so fondly expect may be born gay.

I will return to the matter and would be grateful for further discussion with my noble and learned friend on the Front Bench to see if we cannot find a way of clarifying this. I am not going to go beyond the Perth agreement, but I think it is important that we have “awful clarity”—in the old language—on this very great matter. With that, I beg leave to withdraw the amendment.

Amendment 3A withdrawn.

--- Later in debate ---

[Lord Wallace of Tankerness]

This is not leaving it to chance. The law as it stands at the moment is quite clear that a Catholic cannot ascend the throne.

[Lord True]

My Lords, the problem was articulated at Second Reading, and I do not wish to extend this debate too much. The problem ultimately will be a human problem, as it was in 1936. That human problem, if it arises, will concern a child who is an heir, either the heir presumptive or a child who by some accident becomes the next in line, a popular expectant heir to the throne, who, whether from birth or by proximity to the Catholic faith when being brought up, believes that they cannot take up the duties of a monarch without the support of the church that they love. That might well be the Catholic Church.

The problem with the halfway house that we have before us is that it opens the door to such a crisis without resolving all the complexities that my noble friend quite rightly said lie at the end of that path. That human drama will be played out in the 21st century through all eyes of the media and television as almost a piece of spectacle—it was in 1936. That is the danger that many Peers sought to point out at Second Reading. I could not support the amendment of my noble friend Lord Cormack; equally, I think that the amendment of my noble friend Lord Trefgarne is flawed, because I agree with my noble and learned friend on the Front Bench that there are things that a regent could not undertake.

There is a danger in the lack of clarity inherent in this Bill, for well meaning reasons, opening a door to a place we know not where. Not all discrimination in this matter lies on the Anglican side—I speak as one who lives the most happy of mixed marriages but who is never permitted to go to the altar table to share communion with my wife. Let us go forward with caution. It is not right for the Government so readily to detach the opening of the door by the legitimisation of a marriage from a proper and serious contemplation of the potential consequences if a human drama comes to be played out when an heir believes that they can proceed only with the support of the Catholic faith, whether they professed it previously or profess it at the time when they become heir to the Throne.

[Lord Wallace of Tankerness]

My Lords, before my noble friend Lord Trefgarne replies, perhaps I may pick up on a point where I do not believe that the argument of my noble friend Lord True holds. Under the law as it stands—and there is no proposal here, nor do the Government have any proposals to change the law—the sovereign may not be, nor have been, a Roman Catholic. Therefore, the situation which my noble friend Lord True suggested, where the sovereign comes to the Throne having to agonise as to whether to renounce the Catholic religion, just would not arise, because, having been a Catholic, he or she would not be eligible to ascend to the Throne.

I entirely concur with my noble friend’s opening remarks: these are very much human matters at the end of the day. There is a human dimension to it, and that is why, in response to the earlier debate, I sought to reflect the discussions which I had with representatives of the Bishops’ Conference of England and Wales so that this is looked at at a pastoral, human level, which seeks to reflect the importance of the union of a partnership and the indissolubility of marriage. It is against that background that decisions should be made and advice given with regard to the upbringing of a family. I accept that there is a human dimension to this, but I should perhaps clarify that the dilemma that my noble friend was suggesting cannot occur because the position is that the sovereign must not be, or have been, a member of the Roman Catholic Church.

--- Later in debate ---

[The Earl of Erroll]

My Lords, the noble Baroness, Lady Hayter, pointed out that families tend to be smaller, but we live longer. For instance, the reigning monarch is about to become a great-grandmother. Taking an average of two to four children, which is three, when there are three children in the first generation and three sets of three children in the second generation, we have already reached our figure of 12. The next generation will go beyond 12, yet we are still looking at the first line. It would be only too easy for a disaster to happen to one line, so the noble Baroness proved the case that six is too few, and we should forget about longevity.

[Lord True]

My Lords, my name is on the amendment but all the arguments were made in a compelling speech by my noble friend. The remarks of my noble friend Lord Forsyth were also conclusive. Perhaps the Minister will consider the following: once the child for whom we are rushing out this legislation is born, how will the Deputy Prime Minister explain to one of the daughters of the Duke of York that she will have to seek permission but her sister will not?

--- Later in debate ---

[Lord True]

My Lords, as I said earlier, is it not the case that in the early 1830s Augustus d'Este, the son of the Duke of Sussex by a marriage unapproved under the Royal Marriages Act 1772, did in fact posit documents in Chancery to challenge the legitimacy of the action? Furthermore, in 1843 papers were put before the Committee for Privileges of this House, and the case was heard by this House in 1844. There is certainly an historic precedent and, as I mentioned in passing, a challenge. Some of the issues that came up today are perhaps rather wider than Clause 3. To my mind, this goes to reinforce the points made by a number of noble Lords about the need for absolute clarity, and the fortification of what we are doing against potential challenge in the courts that now exists.

[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 True]

I do not wish to detain the House, but I think the contention of the gentleman concerned was that the marriage had been celebrated outside the country and was therefore outside the jurisdiction. That case was not caught by a potential forfeit.

[Lord Trefgarne]

If I may say so to my noble and learned friend, there is clearly scope for some further reflection on this matter. I will raise this at the next stage of the Bill. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Northbrook]

My Lords, my queries actually applied to Amendment 17, which I think is grouped with this one.

[Lord True]

My Lords, what has been said about the Deputy Prime Minister, for whom I share respect, is valid: specifying that particular Minister is a slightly questionable way of proceeding. Will my noble and learned friend confirm that it is not part of the Perth agreement that the Deputy Prime Minister should be personally responsible, so that we can look at that matter at a later stage?

To be fair to the Deputy Prime Minister, he has taken a major part in pushing this forward, and I think that that is acknowledged, but we must not be seen to be getting into a position where a young couple whose child is to be born are exploited in any way politically. We do not want grand press conferences by any particular Minister saying, “This is all happening, if this baby is a girl, because of what I have done”, and so on. I am sure that the Deputy Prime Minister would not fall into that temptation, but perhaps if Parliament, in its wisdom, slightly depersonalised the amendment on Report, as my noble friend Lord Trefgarne proposes, there might be wisdom in that.

[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.