Earl of Caithness
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Equality (Titles) Bill [HL]
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The Earl of Caithness
The Earl of Caithness (Con)
My Lords, with the leave of the House, I will speak also to Amendments 5, 7, 16, 19, 29, 32, 36, 40, 44, 57, 60, 64, 67, 74, 82, 87 and 95. Into that group, I would like to add Amendment 79, which logically goes with the group but is omitted from the suggested grouping of amendments. It covers exactly the same point. With the leave of your Lordships, I will speak also to Amendment 4 because, on further reflection, what I want to say on that amendment ties in very well with Amendment 1; it covers the same points.
Lord Trefgarne
My Lords, did my noble friend include Amendment 91, which is mine? I hope that he did not, but I did not quite hear.
The Earl of Caithness
No, my Lords, because I am not my noble friend Lord Trefgarne, so I could not include it and deliberately omitted it.
I must first apologise to the House and, in particular, to my noble friend Lord Lucas for not being able to take part at Second Reading. I wish that I had been able to be here. I will declare my interest. I do not have any settled estates but I have an elder daughter and a younger son who could be affected by the Bill.
A title is a very complicated document. It is personal property and I therefore agree very much with what my noble friend Lord Wallace of Saltaire said at the end of Second Reading: namely, that this is not a matter for Parliament. It is a matter for the Crown. However, this is an extremely useful debate in order to guide advice to Her Majesty, because in my view this is a logical step forward. The situation that we are in now is anomalous, so in principle I have total support for what my noble friend is aiming to do. All that I would say is that it is horrendously complicated.
I declare my interest as not being an expert in this field. From what I read of Second Reading, I thank the noble Baroness, Lady Thornton, and the Labour Party for their remarks. All my life as a hereditary Peer I have been persecuted and vilified by the Labour Party, but at Second Reading they did a wonderful U-turn and said, “We support hereditary peerages; we’re going to extend them to females so that the titles will keep on for many generations”. I take that point.
Let us look at my own title. The first official document for the Earl of Caithness goes back to 1334. There were Earls of Caithness before that, but 1334 is taken as the first creation. Those noble Lords who are aficionados of Shakespeare will know that the Earl of Caithness appears in the play “Macbeth”—and Macbeth got killed or died in 1057. That Earl of Caithness was Thorfinn, more of a Viking mormær, or Earl, than a Scottish one—it was under Norse law. The person who got the title in 1334, Maol Íosa V, also Earl of Strathearn, was the first creation. He forfeited his titles through treason and the title died out, so that was the end of the earldom of Caithness.
However, because it is the prerogative of the Crown, there was a second grant a few years later, in 1375, to David Stewart, a younger son of Robert II of Scotland, who left his title to his heiress, Euphemia—so the Scots were well ahead in showing that females could inherit a title. That creation died out, too; this is the wonderful thing about having hereditary Peers. There is another gap and then we come to the third creation, Sir George Crichton in 1452—but he surrendered the title in the same year, so the Earl of Caithness came to an end yet again. The fourth creation comes down to me. As one can see, one was able to perpetuate the title but with different families, and now the Labour Party is saying that we can extend that. I feel that after 65 years of persecution, today is a very happy day.
I said at the beginning that the issue was unusually complicated. There will be all sorts of legal problems to be sorted out; in fact, the Bill will become a lawyer’s paradise. For some titles, though not mine, a private Act of Parliament will be necessary in order to effect the Bill. The settlement of the Shrewsbury family had to be done by a private Act of Parliament, for example, so in order to break that, my noble friend Lord Shrewsbury would have to have a further private Act of Parliament. That is just one of the many areas that the lawyers are going to be rubbing their hands over.
Lord Jopling (Con)
If we are to do the things that my noble friend Lord Lucas is trying to do, it will mean primary legislation. Dealing with the situation of our colleague, my noble friend Lord Shrewsbury, could be fitted into the same Bill, so I do not think that that constitutes a particular problem.
The Earl of Caithness
Indeed, my Lords—if the end result is done by an Act of Parliament. Following the logic of my noble friend Lord Wallace, though, if this is a matter that the Crown decides because our titles are granted by the Monarch, it would not be an Act of Parliament. Therein lies one of the many complications.
Lord Trefgarne
My Lords, may I just intervene? There is a problem with the course of action proposed by my noble friend Lord Jopling, and that is the Long Title of the Bill. If we were to seek to amend the Bill to include my noble friend Lord Shrewsbury, for example, we would have to ensure that the Long Title provided for that. I am afraid that on my first reading of it, the mere three lines would not do.
Lord Wallace of Saltaire (LD)
My Lords, perhaps it might help to bring the Committee to a degree of order if we allow the noble Earl, Lord Caithness, to move his amendment before we get into detailed discussion. I do not think he has yet moved it.
The Earl of Caithness
I am speaking to it and have a lot more to say. I know it is Friday afternoon and my noble friend on the Front Bench wishes to go home, but I have been working on this Bill for a couple of weeks, and I am not going to miss my opportunity.
Amendment 1 and my subsequent amendments are about the definition of hereditary titles. The Bill is quite clear that baronetcies include Irish baronetcies, but Clause 1 relates to the peerages of England, Scotland, Great Britain or the United Kingdom only. In fact, this is already a hybrid Bill because it incorporates the baronetcies of Ireland but not the peerages of Ireland. That is the effect of Amendment 4. It is particularly relevant for my noble friend Lord Clancarty. He is the Earl of Clancarty as well Baron Kilconnel and Viscount Dunlo—but they are separate titles in the peerage of Ireland. So there is a complication in excluding Ireland.
Amendment 4 shows that Amendment 1 is very relevant, because you need to define a hereditary title. If you do not define it, you face a gamut of things. Indeed, the noble Earl, Lord Erroll, has an amendment—I have similar amendments—that tries to include some hereditary titles from the Crown or state. That is a separate argument, and we will come to it.
The huge complication of the Bill as it stands is the definition of “hereditary title”. I wish to simplify that. I wish to include peerages, including Irish peerages, and baronetcies and leave it at that. I beg to move.
Lord Trefgarne
I have some doubts about the proposal being brought forward by my noble friend. I am anxious, of course, that the peerages and baronetcies of Ireland should all be treated fairly and equally if we possibly can, but the fact is, as my noble friend said, that these matters are of extraordinary complexity. We have already dealt with the problems being faced by my noble friend Lord Shrewsbury. My noble friend Lord Caithness described the problems being faced by the noble Earl, Lord Clancarty. What are we to do about this? At the very least, if we agree some of these amendments, we risk making the Bill a hybrid Bill. Noble Lords smile at that, but the fact is that a hybrid Bill is a very different animal from the one we are considering today. It needs Select Committees, learned counsel and all sorts of distinguished things that take a great deal of time and, no doubt, a great deal of money. My noble friend’s amendment takes us along that rather dangerous path, and I invite him to reconsider it.
Lord Trefgarne
My intervention is on the Spanish example. They are the only recent Government to have created a new hereditary peerage. It was a new hereditary marquisate conferred upon the coach of a football team.
The Earl of Caithness
My noble friend will remember that Mrs Thatcher, as Prime Minister, created two hereditary peerages: the late Lord Tonypandy and our late noble friend Viscount Whitelaw.
Lord Wallace of Saltaire
The Government are committed to equality of treatment before the law, and we have demonstrated this in the legislation that the Government have already taken through this House and the other place, including the Succession to the Crown Act, which removed the male bias with regard to the descent of the Crown and the Marriage (Same Sex Couples) Act. We are not, however, persuaded that this Bill provides the most appropriate mechanism to address inequalities within the hereditary title system. I suggest that, before any such system be introduced, we need an extensive consultation with affected parties. That said, it is clear that many noble Lords who have spoken today support the equalisation of inheritance in regard to hereditary titles, and these amendments have provoked a debate on that, which will no doubt continue.
The Earl of Caithness
My Lords, I am grateful to all noble Lords who took part, and I am sorry that the noble Lord, Lord Stevenson, tried to ruin my day. However, I say to him that, by allowing the eldest child, female or not, to inherit an hereditary title, you are going to perpetuate hereditary titles that would have died out with a male-only rule. That is to me a consolation.
May I ask my noble friend Lord Wallace, referring to my Amendment 4—which I will come to move in due course because I am only speaking to it at the moment— whether the Bill is hybrid at present as it includes Irish baronetcies, but not Irish peerages? Do we have a hybrid Bill at the moment?
Lord Wallace of Saltaire
My Lords, I am informed that this is not a matter for the Government. It certainly seems that if the object is to extend equality, the provision should apply to all those peerages created by the current and all previous monarchs of England and the United Kingdom, and therefore include the peerage of Ireland.
Lord Trefgarne
I am bound to say that some of us in this House have a little experience—somewhat distant experience now, I must say—of hybrid Bills and what the implications are. It is a serious matter. I believe that there is a procedure for referring a Bill to a Select Committee to consider whether it is or is not hybrid and to decide how to proceed. There are people called examiners, I seem to recall. It is probably one of our distinguished clerks, I imagine, who sits on a committee to examine all these matters. I do not wish to suggest that we unduly delay this Bill by such a process, but others may take a different view.
The Earl of Caithness
My Lords, I do not want to delay the Bill because it is going in the right direction, but it raises a huge point. If I had been present at Second Reading, I would have raised the question of hybridity. I am sure that my noble friend Lord Lucas wants to comment on that.
Lord Lucas
My Lords, I am very much in the hands of the House when it comes to whether it wishes to accept amendments or not. I am content with the current scope of the Bill, so far as it goes, but I shall not stand in the way of the House if it wishes to change that. I certainly agree with the intent of my noble friend’s Amendment 4. I think that the Bill should cover Ireland. However, as to whether it should be restricted to peerages or baronetcies, I tend to come at this from the point of view of gender equality, and therefore do not particularly wish to preserve little islands of male supremacy in whatever strange form they may exist. There was certainly a dispute going back in my family as to whether or not they were the hereditary sword bearers in front of the Queen. They lost that argument, but I am aware that these offices exist. As an aside, I am also rather intrigued by the history of the title of my noble friend Lord Caithness. If we could make this measure retrospective, we might have a number of Lord Caithnesses and perhaps they could duel to the death to decide who should succeed. However, other than that, I am content with the Bill as it stands, except that I think Amendment 4 looks quite nice.
The Lord Speaker (Baroness D'Souza)
Does the noble Earl wish to withdraw the amendment?
The Earl of Caithness
Yes, but I want to say to the noble Baroness, Lady Deech, that she hit the nail on the head with regard to the words “hereditary title”. Because it is so ambiguous, the purpose of this amendment is to narrow it down; otherwise, this will become a lawyer’s paradise, particularly in Scotland where heredity is a different game. The Bill seeks to impose on five different regimes one solution that fits all, the principle of which none of us disagrees with. In Scotland, the position is very different and there are huge complications which will end up in a number of court cases. That is why I want the Bill to be much more specific. However, I wish to comment on Amendment 2, which the noble Earl, Lord Erroll, will move, so at this stage I will withdraw Amendment 1.
The Earl of Caithness
My Lords, I support the noble Earl, Lord Erroll, on Amendment 2. A number of my amendments are grouped with his, including Amendments 9 and 17. To that, I would add Amendment 20, as it would sit logically with the others. The group also includes my Amendments 30, 33, 37, 41, 45, 58, 61, 65, 68 and 75. I would substitute Amendment 80 for Amendment 79, because Amendment 79 links with Amendment 1. My Amendments 83, 88 and 96 are also in the group.
The noble Earl is absolutely right in what he said, which comes back to the point that we discussed on the first amendment. The noble Earl is the Lord High Constable of Scotland, a title of the Crown, or state, to which he succeeded after his mother. However, it is nothing to do with the earldom of Erroll; it is a totally separate issue. In Scotland, we also have the Hereditary Bearer of the National Flag of Scotland, who is the Earl of Lauderdale, the Hereditary Royal Standard-Bearer for Scotland, who is our noble friend Lord Dundee, and the Hereditary Keeper of Holyrood Palace, who is the Duke of Hamilton. Those are fairly straightforward and should be dealt with in this amendment. Without being at all derogatory, we then get down to perhaps a slightly lesser level. What about the Keeper of the Ancient Staff of St Moluag? Should that be hereditary? This is the real problem with this issue and why it needs to be so clearly defined.
The noble Earl also talked about clan chiefships. This is a matter of debate: some Writers to the Signet, in some cases, have said that clan chiefship is a title and others have said that it is a right or a privilege. We could have a huge number of court cases trying to decide that. It is not our job in this House to leave legislation ambiguous; we need to be absolutely clear. The lawyers make enough money as it is and we do not want to give them any more.
I would resist the amendment of the noble Earl, Lord Clancarty, which is a good example of where the Bill is being extended to include armigers. Of course, the rules in Scotland are different from those in England, and this one solution to fit all systems comes apart. If my daughter marries a Mr Smith, she cannot then bear her coat of arms as a Sinclair unless she changes her name. In Scotland, if an heiress inherits, to assume the coat of arms she is required to change her name, otherwise she is conventionally dead within the family and the next heir then inherits. It is not fun to be conventionally dead, or indeed unconventionally dead. In contrast, a peerage or baronetcy is generally not legally connected to a name. There are lots of examples of a peerage or baronetcy granted to Mr X where the name changes with various inheritances. There are some Scottish peerages where there is an obligation to bear the original name of the arms, but those are a limited minority.
We have a different legal system in Scotland. When I saw this amendment, I spoke to the Lyon Clerk, who is the assistant to the Lord Lyon in Scotland. She threw up her arms in horror and said, “No. This is just unacceptable. There has been no discussion about it. The implications are enormous”. For that reason, I will resist this amendment.
The Earl of Erroll
Amendment 3 should be dealt with separately within the Bill because there are complications around it. My wife, Isabelle Astell, is English and is armigerous. She is the heir to the Astell place and to the Astell arms. As far as I know, she still bears her own arms and I hope she will pass them to one of our sons. It happens to be that way round but, given that she inherited them, they could presumably be passed to a daughter. This issue needs looking at and thinking about but the point is well taken. At a later stage of the Bill, perhaps something could be inserted to cover just arms, leaving it separate from peerages and baronetcies—things that have come from the Crown directly.
The Earl of Caithness
The Earl of Caithness
My Lords, it is not quite as simple as the noble Earl has just said, because he has not put his name to Amendment 20, in my name, which covers exactly the same point. I think I am right in saying that it is Amendments 8, 15, 18, not 20; 28, 31, 35, 39, 43, not 47; 48, 49, 50, not 52; 53, not 54; 56, 59, 63, 66 and 73—I do not know about Amendment 77; I need advice on that, it is not my amendment—78, not 80; 81, 86, 91, 92 and 93. I hope that is helpful. I will therefore speak to my Amendments 20, 47, 52, 54 and 80 separately.
Lord Trefgarne
My Lords, I am afraid that this amendment seems to suffer from some of the difficulties that we have been discussing; namely, the possibility that there is a hybrid element within it. There seem to be a number of possible areas of hybridity in this Bill, which makes the whole Bill very difficult to proceed with. The proper way to proceed with a Bill that might or might not be hybrid is for it to be referred to the Examiners. I hope that if the Bill proceeds further after today, that will happen—it will have to happen; it will not be up to me alone, of course.
Has the noble Earl, Lord Erroll, considered this question? It is an important one, which will have to be raised time and again if it cannot be clarified.
The Earl of Caithness
The Deputy Chairman of Committees
I believe that it has not been moved but it has been debated. I am looking to the clerks for advice, but I think that that is the case; in which case, the amendment is not moved.
The Earl of Caithness
The Earl of Caithness
My Lords, in moving the amendment I shall speak also to Amendments 23, 26 and 42, which are not grouped on the Marshalled List, but logically appear with it. I do not include in my grouping Amendments 21, 34A, 71, 76 or 89. We are slightly confused by the suggested groupings list. It is always difficult with a Bill such as this, and I do not criticise anyone.
My points relate to the question of legitimacy, because the law on legitimacy is different in Scotland than it is in England. The wording of the Bill sows confusion and causes problems north of the border. I think that my noble friend Lord Lucas is beginning to understand what a Pandora’s box he has opened. We need to get this absolutely right.
A child legitimately born is not something that we understand in Scotland. If a male and female produce a son out of wedlock, or, in due course, a daughter out of wedlock, that child is legitimised on the marriage, so the question of illegitimacy does not occur in Scotland in the same way as I understand that it does in England.
Your Lordships will all know that in 1832, the Macdonald of Sleat baronetcy passed to the eldest child, legitimised by his parents on their subsequent marriage, while the Irish peerage of Baron Macdonald passed to his second son, but the first legitimately born after the marriage. The same principle was used in the Marquis of Queensbury case, and there is the Anstruther case. The Anstruthers had two baronetcies and they produced a son out of wedlock. It was all very carefully planned. They were lucky to have a boy. They then got married. That legitimised the boy, who received the Scottish title. They were then very clever and, having been married, produced a second son who was legitimate and therefore got the English title; they were able to separate the two Anstruther titles.
That is why I am moving Amendment 11. I know that the rules in England are different. As I understand it, they refer to illegitimate children born after 28 October 1959 who were legitimised by the subsequent marriage of their parents. I hope that my noble friend and the House will be able to accept my amendment so that we do not have any further problems. I beg to move.
The Earl of Caithness
If “living heir” is accepted, does the noble Lord, Lord Richard, accept that it would be irrelevant whether that child was legitimate or illegitimate?
Lord Richard
Of course I accept that the definition of an heir may be different in England and Scotland. It is a matter of Scottish law. All I am saying is that if it applies to a Scottish title, then Scottish law will apply to the definition of an heir. Whatever the definition of an heir is, that heir in future, according to this proposal, will be either male or female depending upon which is the eldest. That is the Scottish position. So be it. The English position may be different. I do not see the difficulty that the noble Earl, Lord Caithness, sees in this. The proposal talks about an “heir”. What is an heir? It is one thing in England and one thing in Scotland. You cannot marry the two together in a Bill; of course not. The noble Earl’s amendment is frankly irrelevant and unnecessary, because Scottish law will apply to Scottish peerages and English law will apply to English peerages. I do not see the difficulty.
Lord Trefgarne
My Lords, the trouble with the line being taken by the noble Lord, Lord Richard, is that he has not taken into account the dreaded European Convention on Human Rights. If we leave the sort of uncertainties which my noble friend Lord Caithness is trying to resolve, someone or other will be off to Strasbourg to try to get it challenged and changed. That is not what we want.
The Earl of Caithness
My Lords, that is exactly the point. I declared at the beginning that I am no expert on this. The advice that I have been given is from an eminent writer to Her Majesty’s Signet in Scotland, and he advised me that it needs to be put into a Bill of this nature.
Amendment 34 of the noble Lord, Lord Jopling, is identical to the amendment in my name and that of the noble Lady, Lady Saltoun, who sadly cannot be here because of the weather conditions in Aberdeenshire; it has exactly the same effect. Both these amendments are consequential on the amendment we are discussing. It would only serve to confuse the Bill if both amendments were automatically passed. Therefore, when the time comes, I hope that we will accept Amendment 34 of the noble Lord, Lord Jopling, and I will try to remember not to move my Amendment 71.
Lord Lucas
My Lords, I have enormous sympathy with the noble Earl, Lord Clancarty, and the simplicity of what he proposes. However, we then need some way back for existing arrangements, such as that suggested by my noble friend Lord Jopling. The difficulty with my noble friend’s amendment is that it does not allow for anything to be done by families who want to change now and who are prepared not to wait until everybody is dead.
I would therefore move my Amendment 46, and consequential Amendments 69 and 70. They adopt the position which would arise from the amendment of the noble Earl, Lord Clancarty, plus that of my noble friend Lord Jopling: the succession to eldest child, irrespective of gender, would start when everyone now living was dead, but families would be allowed to gather together and say, “Actually, we would like this to happen now”, so that we get some sense of change.
My noble friend Lord Trefgarne is quite right that there are a lot of complications in the peerage; sadly, that is not the case with mine—there are no great estates to cause that. However, complications exist, and if we try to trample on those sorts of arrangements we shall only get trouble. We must therefore allow for some mechanism for those to expire over time, although, certainly in respect of my own peerage, I would like to see the change coming as soon as possible.
Lord Trefgarne
My Lords, if the Minister is proposing a Royal Commission on this matter, that is an admirable proposal and a number of us here would be happy to volunteer to be chairman.
The Earl of Caithness
My Lords, to come back to Amendment 11, given what the noble Lord, Lord Richard, said, which is contra to the advice I was given, it would be wise for me to withdraw my amendment at this stage. However, it is something which, in the discussions and consultation which I am sure the Government will be keen to continue, needs to be looked at.
The Earl of Caithness
“( ) Once succession has passed to a female heir, thereafter the succession shall be in terms of the destination or limitation of the title, but with the succession being traced without reference to gender.”
The Earl of Caithness
My Lords, in moving Amendment 13 I will speak to Amendments 24, 51, 55 and 85.
Amendment 13 is fairly simple. It continues the principle of the eldest child succeeding that we have been discussing, but to give the Bill clarity it needs to be made clear that that will happen.
Amendment 24 is different. It covers the point that,
“where a hereditary peerage is without a male heir, that peerage should automatically pass to the incumbent’s oldest surviving daughter upon the incumbent’s death and should thereafter pass to the oldest surviving child regardless of gender”.
What happens in my own case, for instance? Should my son not have an heir, male or female, but my daughter dies before my son, the title should then go to my daughter’s children. If she does not die, and the provisions in the Bill were enacted, that is how it would go. That is complicated, but I think I have the gist of what I am trying to do with that. I am trying to make certain, were we to change the rules, that the eldest daughter will inherit instead of a son, even though the destination is different.
Amendment 51 is the same as Amendment 13, so I do not need to speak to that again. Amendment 55 is in the name of the noble Lord, Lord Clancarty; I cannot speak to that. It was grouped with this; I might speak to it after he has spoken to it. Amendment 85 is in the name of the noble Earl, Lord Erroll, so I will leave him to deal with it before I come back.
Lord Gardiner of Kimble (Con)
My Lords, as a precaution, I thought it might be helpful to refer to the Companion, which indicates that at about 3 pm, it would be customary on a Friday for the House to resume. I just give that forward notice.
The Earl of Caithness
The Earl of Caithness
My Lords, this sub-paragraph relates to age discrimination and states that a female heir succeeding to the hereditary peerage—or hereditary title, as it is called now—
“has attained the age of 21 years”.
That is discriminatory and I ask my noble friend why. I beg to move.
Lord Lucas
I was going to seek some technical help from the Front Bench on this but clearly my noble friend is unbriefed. This is terrible. My understanding—if I remember correctly—is that Lord Ferrers became an Earl at the age of 14 but that he was not able to succeed to the title properly until he was 21. Is that right? Is one allowed to be—
The Earl of Caithness
I succeeded at the age of 16 and was fully entitled to do so but I could not sit in the House of Lords. I took my seat when I was 21, so I have been here for 44 years and my age is still below the average for the House. No other job in the world could ever put one in that position. I think that that is why my noble friend is wrong. The minority in England is 18; in Scotland it is 16. Shall we just drop the “21”?
Lord Trefgarne
My Lords, I had a similar experience to that of my noble friend Lord Caithness. I was 19 when I succeeded to the title. I then had to prove who I was. As I recall, I had to produce my birth certificate and parents’ marriage certificate. I then got a letter from the then Lord Chancellor saying that he would have authorised me to be issued with a Writ of Summons had I reached my majority. I think that those were the words that he used. I did that a couple of years later and duly took my seat in your Lordships’ House.