Scotland: Constitutional Settlement

Debate between Lord Wallace of Tankerness and Lord Lexden

Tuesday 10th March 2015 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what assessment they have made of the public reaction to their Command Paper Scotland in the United Kingdom: An enduring settlement.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the Government welcome feedback on the draft clauses as we continue to refine the draft legislation. We are holding events across Scotland to enable stakeholders to provide feedback on the draft clauses and how the new powers might be best used. Four events have taken place to date, with a further event in the borders later this month. Representatives from a wide range of sectors are participating, including from business, the voluntary sector, universities and schools.

[Lord Lexden (Con)]

Can my noble and learned friend explain how the Government’s proposals will provide a basis for an enduring settlement when the Scottish National Party is demanding yet further concessions? Is it not obvious that we need a new constitutional settlement, an explicitly unionist settlement, for our entire country, not further piecemeal changes in different parts of it, devised with short, artificial deadlines? When will our national leaders of all parties summon up the eloquence and conviction that is needed to make the case for an enduring union, which so many of us in this House, in the other place and throughout our country hold so dear?

[Lord Wallace of Tankerness]

I entirely agree with my noble friend on that need. The best way forward is to have an enduring union, to which I am certainly committed. The proposals in the White Paper which the Government produced at the end of January give effect to the agreement reached under the commission chaired by the noble Lord, Lord Smith of Kelvin. Not to have acknowledged and fulfilled the commitment given to the electorate would have been more damaging to the union. I have taken part in numerous debates in your Lordships’ House where noble Lords from all sides have called for a constitutional convention. That may well be the way forward after the election.

Scotland: Draft Legislation

Debate between Lord Wallace of Tankerness and Lord Lexden

Thursday 22nd January 2015 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, what we have done is put the Sewel convention on to a statutory basis. The noble Lord can see how it has been set out, although it may not immediately be clear from the clause. However, it has been added after Section 28(7) of the Scotland Act 1998, which makes it clear that the Westminster Parliament can still legislate.

[Lord Lexden (Con)]

My Lords, is it not obvious that today’s proposals are bound to increase the demand for English votes for English laws, on which the Government have produced no firm proposals at all? As to Mr Gladstone and home rule all round, that was not his plan. It was the brainchild of the great unionist, Joe Chamberlain.

[Lord Wallace of Tankerness]

I think he changed his mind after that, but I salute my noble friend’s historical knowledge. There is a legitimate issue here. As I have indicated, last December the Government published a Command Paper, but there would not appear to be any consensus. Three versions have been produced by the Conservative Party, including one from my noble friend Lord Norton of Louth, and there was one from the Liberal Democrats. It is clear that there is no consensus, but there is consensus on what we are proposing today.

Succession to the Crown Act 2013

Debate between Lord Wallace of Tankerness and Lord Lexden

Wednesday 26th February 2014 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government when the Succession to the Crown Act 2013 will be brought into effect.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the Succession to the Crown Act will be commenced when each Commonwealth realm has taken all steps necessary to give the changes effect in its jurisdiction.

--- Later in debate ---

[Lord Lexden (Con)]

I thank my noble and learned friend, who is the master of the intricacies of this legislation. Can he reaffirm that it is absolutely essential that this modernising constitutional change is implemented—and implemented fully—in all 16 realms of which Her Majesty is head of state to ensure that the Crown descends in exactly the same way in all of them. Does my noble and learned friend have any reason to anticipate that any of the realms might ultimately default on their obligations under the Perth agreement?

[Lord Wallace of Tankerness]

My Lords, I entirely agree with my noble friend that it is important that all 16 realms agree. Indeed, the intention is that when they all have put in place the necessary legislation there will be a simultaneous order to give effect in each of the realms. I make it clear that all realms that took the view that legislation is required have passed the requisite legislation, with the exception of Australia. As I informed your Lordships’ House at Third Reading, the Council of Australian Governments agreed that respective states would legislate first, requesting that the Commonwealth legislation be brought forward by the Canberra Government. To date, three states have enacted legislation; two have introduced legislation; and South Australia has yet to introduce legislation because it is in the middle of an election campaign.

Succession to the Crown Bill

Debate between Lord Wallace of Tankerness and Lord Lexden

Wednesday 13th March 2013 Lords Chamber

[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 Lexden]

Before my noble and learned friend sits down, has he any view as to the earliest possible point when the realms will have completed their work and the measure can be implemented?

[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.

Succession to the Crown Bill

Debate between Lord Wallace of Tankerness and Lord Lexden

Thursday 28th February 2013 Lords Chamber

[Lord Wallace of Tankerness]

Unlike in your Lordships’ House, where every amendment tabled can be debated, amendments are selected in the other place by the Speaker. The system is different. I will not argue which is better, but I find it worth while in your Lordships’ House that we can go through every amendment that is within scope and debate it. It helps us to undertake the scrutiny role which is appropriately ours. I hope that your Lordships feel that the time allocated to this Bill and the proper phasing of it through the different stages is appropriate. As I have already said, the realm Governments were alerted to the drafting change, were given an opportunity to comment and all expressed satisfaction with it.

[Lord Lexden]

I shall belatedly put my question about what my noble and learned friend was saying about the passage of the legislation in the other realms. Should one infer that if anything goes wrong in any of these realms and the legislation is not implemented, then the legislation falls everywhere and will not be implemented in this realm?

[Lord Wallace of Tankerness]

That is certainly my understanding. That is why we have the implementation clause. Even if we pass this the intention is that the provisions will not commence until all realms have done what is necessary in each of their territories.

Succession to the Crown Bill

Debate between Lord Wallace of Tankerness and Lord Lexden

Thursday 14th February 2013 Lords Chamber

[Lord Wallace of Tankerness]

I am sorry to disappoint my noble friend, but the Government do not have plans to do that, although it is quite clear from the contributions to this debate that it is an issue. However, it is not the policy of the Government to go down that road; therefore, I regret not to be able to give a more accommodating answer to my noble friend.

With regard to the Royal Marriages Act 1772, my noble friend Lord Lang thinks six is too limited, but my noble friend Lord Carlile thinks six is too wide. I explained that if one looks at the 240 years of history since the Act was passed, Queen Victoria was the furthest away from the Throne at the time of her birth, at fifth. Therefore, six is a realistic number. I say to my noble friend Lord Carlile and other contributors that, unlike the consequence of the Royal Marriages Act, which is that the marriage is void, the consequence of marrying without consent under this Bill would be that one would drop out of the line of succession, so some of the convention issues that my noble friend mentioned are properly addressed.

My noble friend Lord Lang was concerned that the Bill might put the sovereign under some pressure about whether someone was an appropriate person to marry. That could be the case today. There is probably unlikely to be any pressure if the person is 710th or whatever in line to the Throne, but even today, the first six still require the sovereign’s consent to marry.

My noble friend Lord Trefgarne asked about judicial review. We do not believe that this could be reviewed. Although the decision would be taken on the advice of Ministers, it would be taken by the sovereign, and her decisions cannot be challenged in the courts.

My noble friends Lord Carlile and Lord Northbrook asked us to clarify the common law position with regard to the monarch’s consent. It is arguable that the common law no longer applies since it could be said that by legislating in 1772, Parliament has superseded the common law. The defects of the 1772 Act have frequently been pointed out, and the Government consider that there is a clear case for repealing and replacing it. A dowager queen is not in the line of succession, so the importance of royal consent is not as great as it is in the case of someone in the immediate line of succession. We do not see dealing with any possible surviving common law rules on consent as essential.

My noble friend made points about the Roman Catholic Relief Act 1829 that were picked up by my noble friend Lord Northbrook. It was argued that the Bill would allow a regent to be a Catholic. The effect of the Bill is not to make it possible for the regent to be a Catholic. Section 3 of the Regency Act provides that the regent is the person next in line of succession, if not disqualified, which a Catholic would be. A further disqualification is brought in under this Bill if a person in the first six in line of succession to the Throne marries without consent. That is the purpose of that clause.

My noble friend Lord Astor asked about the Channel Islands and the Isle of Man. Historians will argue about whether the dukedom of Normandy is still live, but there is no doubt that within the Channel Islands the Queen is heralded and treated as the Duke of Normandy. Nothing in the Bill would change that. The Channel Islands have been consulted on this. The Bill will apply by necessary implication to the Crown Dependencies and the British Overseas Territories, which have been fully informed and consulted on this matter.

[Lord Lexden]

Will my noble and learned friend say a word about the Lordship of Man, which I raised?

[Lord Wallace of Tankerness]

The position with the Lordship of Man is exactly the same. No change is anticipated. The Queen would continue to be the Lord of Man when she is in the Isle of Man. The removal of male bias has no implication for the title of Lord of Man.

In her opening remarks, the noble Baroness, Lady Hayter, said how much we look forward to the birth later this year of the child of Their Royal Highnesses the Duke and Duchess of Cambridge. She got the assent of the House when she said that she hoped that there would be no press harassment or intrusion. The change that we are putting forward will mean that if the Duke and Duchess of Cambridge have a daughter, then a son, the daughter will precede the son in the line of succession. As we look forward to the birth, we can also celebrate that whether a boy or a girl, the child will have equal claim to the Throne. I think it is the mood of the House to wish the Duke and Duchess of Cambridge every happiness as they face up to the challenge of parenthood, and I commend this Bill to the House.