House of Lords Reform Bill [HL]

Earl of Caithness Excerpts

Friday 3rd February 2017 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, here we go again on reform. We have already had Bills to reform the Lords from my noble friend Lord Elton and the noble Lord, Lord Grocott, and now we come to another Bill. The sadness of this Bill is that there are no Explanatory Notes. It was a great courtesy and help to the House that my noble friend Lord Elton produced Explanatory Notes with his Bill. There are none with this one but I am grateful that the Library produced an In Focus briefing which helps explain what the Bill is supposed to do.

First, the noble Baroness wants to fulfil her prejudice to get rid of the remaining hereditary Peers. I do not disagree with her on that. I have made my position perfectly clear: I am very happy that we hereditaries should go provided that the life Peers go as well and that we have a fully elected House. The Bill does not fulfil that wish.

Looking at it in a little more detail, we come to the election of the House of Lords. In Clause 3(1), the person who is elected will get a Writ of Summons. Presumably, that person then becomes a Lord. We will come on to that in more detail in a moment. As has already been mentioned, we then get two classes of Peers in the House. That is a recipe for total disaster. As I think everybody has said, one advantage at present is that we are all treated equally in this House.

Then one looks at what regions the noble Baroness proposes. I agree that the regional imbalance in this House is acute, startling and to the detriment of its working. Earlier, I proposed that the House should be elected on a regional basis but on the old county model, much more like the American Senate, so that Caithness would have one representative and so would London. That would be on a totally different basis to the House of Commons and would be more geographically diverse and much more representative. However, the noble Baroness proposes the same constituencies as for our Members of Parliament in Europe.

Of course, that leads to the question on which the right reverend Prelate ended: what is the purpose of this House? Why do we need to elect new Peers from Scotland, Wales and Northern Ireland when we do not deal with much of their legislation? This House has changed. It is a bicameral Chamber no longer for the United Kingdom but for England, with a little bit of work for the United Kingdom. As for our role, that needs to be examined because if the Government were to produce better legislation and the House of Commons act properly in being a revising Chamber, our role could be significantly revised, enhanced and improved. We could have a much smaller and more effective Chamber.

On numbers, I agree broadly with what the noble Baroness suggests. A House of 300 should be quite adequate for our revising work. This House worked extremely well 40 years ago with a smaller number of Peers than take part now. We expanded our workload as more and more Peers came in but it would be quite easy to rationalise that back.

There is no mention of Cross-Benchers in what the noble Baroness proposes in her Bill. She said there would be a role: they can stand for election. However, in her submission to the Library’s In Focus briefing, she says,

“there would be special arrangements to allow crossbench peers to stand as a group”.

That does not appear in the Bill so we have a major contradiction there in the proposals.

Clause 12 contains one of the fundamental difficulties that we have faced, which the noble Lord, Lord Low, referred to: the power of Her Majesty to confer life Peers under the Life Peerages Act 1958. In fact, that is really a power of patronage for the Prime Minister. Whatever the reform of this House, that power must stop or change dramatically. It has been abused by three former Prime Ministers—Mr Blair, Mr Brown and Mr Cameron, the latter aided and abetted by the Deputy Prime Minister, Mr Clegg. They changed the constitution of this country and the workings and constitution of this House in an unlegislated manner. To allow that to continue is quite wrong.

This brings me back to my earlier point that the elected Peers will become life Peers because they will get a Writ of Summons. There is no provision in the Bill for such persons to be removed after they serve their term of eight years so presumably they become life Peers and are allowed to sit in the House with existing life Peers. If we do a little calculation, over the last 15 years the net increase in this House has been more than 10 Members per year. Let us round that down to 10 to be on the safe side. At the first election, we will get 146 new life Peers and we will lose 90 hereditaries. At the end of the four years, we will get another 146 new life Peers plus the 40—that is, the 10 appointed annually on the trend of the last 15 years. In only 14 years’ time, in 2030, we will have 1,338 Peers in the House. Is that not a thought that fills us all with joy?

The noble Baroness said that it will lead to a full democratic reform but that is the one thing it will not do. It will lead to a complicated, potentially diverse, very unwieldy, undemocratic second House. As the right reverend Prelate said so well at the end of his speech, any reform of this House must be done to enhance our role and function. The Bill does not do that. I think the noble Baroness ought to think it out again.

--- Later in debate ---

[Baroness Jones of Moulsecoomb]

I offer my apologies. I am quite good at languages; I do not know why I am having a problem with the language used in the House of Lords.

The noble Lord, Lord Beith, said that non-voting would be a massive concession, and that is absolutely true. The noble Lord, Lord Campbell-Savours, referred to a “soft landing”, and I think that was my motive. It is a kindness to those who are here already and have contributed massively. We would keep them for as long as we possibly can. The right reverend Prelate the Bishop of Norwich pointed out that we must look at the powers, too, but that is not the point of this Bill. I agree with him and I think that in general we have it more or less right, but again, that is not the point of this Bill. The noble Earl, Lord Caithness, pointed out that this is the third Bill, so there is an appetite for change. The noble Lord, Lord Young, pointed out that there is no consensus on the matter, possibly apart from the size of the House. That is useful, but we have to find consensus on other things as well.

Several Peers mentioned the patronage of the Prime Minister and said that it must stop because it has been abused recently. I totally agree because it brings discredit to the House. The only thing that can be said for it is that it brings down the average age of the House. I am 67 and feeling my age, but I am still under the average age here, which is 69.

[The Earl of Caithness]

My Lords, would the noble Baroness agree that successors to hereditary Peers also brought the average age of the House down? The noble Lord, Lord Selsdon, and I combined have been here for more than 100 years. We were quite young when we arrived.

[Baroness Jones of Moulsecoomb]

I thank the noble Lord. I personally think hereditaries have contributed massively to the House. Some of my best friends are hereditaries.

House of Lords Act 1999 (Amendment) Bill [HL]

Earl of Caithness Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 9th December 2016 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, as I have my name to this amendment I would like to say a few words and follow up the closing words of my noble friend Lord Strathclyde—and this was not planned. I say to the noble Lord, Lord Grocott, that if he withdraws the Bill we will be very happy not to move any further amendments at all.

[Noble Lords]

Oh!

--- Later in debate ---

[The Earl of Caithness]

My Lords, the whole situation in which we were going to discuss the Bill has changed as a result of the useful debate that we had on Monday. We did not all agree but at least we were able to express our views without some of the intolerance that is creeping into the Chamber today. Indeed, as my noble friend Lord Strathclyde said, there is a committee looking at this in the other place.

Mention has been made of the system of appointing hereditary Peers, and we have tabled amendments. The noble Lord, Lord Grocott, said at Second Reading—I apologise to him and to the House for not being able to be here for that—that the appointments system was beyond ludicrous. There is a very good argument for saying that, but we have amendments to make it considerably less ludicrous.

[Lord Grocott]

My Lords, the noble Earl was not here at Second Reading and he may not have read Hansard. I did not say that the appointments system was beyond ludicrous, I said that the current system of by-elections for hereditary Peers was beyond ludicrous.

[The Earl of Caithness]

My Lords, I did read Hansard, and in fact I have it beside me—which is no surprise to the noble Lord because he knew that I would. Yes, he said that the succession system was beyond ludicrous. We have amendments down to make it less so and I hope that he will be able to accept them.

I am also against what the noble Lord, Lord Grocott, proposes because of what happened in 1999. I have spoken and written to the noble and learned Lord, Lord Irvine of Lairg, who was Lord Chancellor at the time—it was really his amendment rather than Weatherill’s. He had said:

“The amendment reflects a compromise negotiated between Privy Councillors on Privy Council terms and binding in honour on all those who have come to give it their assent”.—[Official Report, 30/3/1999; col. 207.]

My last letter to the noble and learned Lord was on 31 March 2014, when I wrote seeking elucidation as to what those words meant. I spoke to him afterwards and he said, “You’re not going to get an answer from me”, so I had to interpret them myself. I believe that those words “binding in honour” apply to all the 308 Peers who are still in the Chamber and were here during the debate in 1999, and they also apply to the 109 former MPs who were in the House of Commons when that debate took place and are now in this House. I believe that because they are binding in honour and the agreement was on Privy Council terms, it is not for me to break that agreement. Others may—that is up to them and their consciences—but for me it is a point of principle. What the noble Lord, Lord Grocott, wishes to do is a major constitutional change and I believe that major constitutional change should be undertaken by the Government, not by Back-Benchers.

This House has had an elected element for 273 out of the last 309 years. There was a gap between 1963 and 1999. Removing the hereditaries, which is the inevitable result of removing the succession to them, would leave a solely appointed House. That is not what the public want. The latest opinion poll that I could find shows that 60% of the public want an elected House. Those figures replicate earlier opinion polls.

An appointed House is not what the House of Commons wants either. It voted against it on 4 February 2003 by a majority of 78. There was an even larger majority on 7 March 2007 of 179. The Commons also voted for an elected Chamber. I know that did not come to pass in the 2012 Bill, but if that Bill had come to this House, I would have supported it because I have said in this House before that I am a firm believer in having an elected second Chamber and have voted for that. I support what the House of Commons said. Yes, let us remove all us hereditaries, but only on the condition that all the life Peers go too. Do not remove one without the other. I believe that keeping the hereditaries will help us to achieve a democratic, elected House sooner rather than later.

I discussed this with the noble Lord, Lord Grocott, over breakfast downstairs. He is entitled to his view, and he has been a firm and totally consistent advocate of an appointed House. I take a different view. I want an elected House, and I think that the retention of the hereditaries will bring that about sooner rather than later.

The appointment system has been criticised. If we remove the hereditaries with this Bill, we will be left with an appointment system. In 1999, my now noble friend Lord Cormack said:

“We are witnessing a crude exercise of patronage”.—[Official Report, Commons, 10/11/1999; col. 1200.]

If that was true in 1999, how much more true is it today?

The appointment system was condemned by many during our debate on Monday. Since 1997, 25% of those appointed to this House have been ex-MPs, and a further 7% have been affiliated to parties either by working in them or by taking party positions. That is more than 30%. I have tabled Amendment 45A, which seeks to draw attention to this. In order to help the House, I shall speak to it now.

I do not think that the noble Lord, Lord Grocott, would ever accept an amendment that restricted the appointment system to such a disproportionate percentage of former MPs. We have become the dumping ground for MPs.

[Noble Lords]

Oh!

[The Earl of Caithness]

It is true, my Lords. Some 33% or 34% of those appointed are ex-politicians. We are a pretty good dumping ground. The appointment system has also failed us in that only 22% of appointments were women.

I am sorry that my noble friend Lord Cormack is going—I need to refer to him again. He is coming back; wonderful. Our average age now is 69 to 70. I took my seat here when I was 21. Where are the youth represented in this House? We have only two Members under 39, and 29 under 50. I do not think that is a good recommendation for an appointment system.

It seems to me that the best chance of getting into this House in future will be to become an MP. You could possibly increase your chances if you change party as an MP. I have a friend in Scotland who changed from the Conservative Party to the SDP-Liberal party; he was promised a peerage. He did not get it so he changed to the Labour Party. He was promised a peerage, but he did not get it. He is disillusioned with politics now. There is a serious point in there which we need to consider, and I hope it will come up as a result of Monday’s debate.

These words were spoken in 1999: the hereditaries are,

“the ones who sit in the second Chamber not as a result of patronage”.

[Lord Hunt of Kings Heath]

My Lords, will the noble Earl tell the House how hereditaries got here in the first place? Were they elected or appointed by the monarch?

[The Earl of Caithness]

My ancestor was given a title. I cannot remember quite what it was for; I did not talk to him about it. It was 500 or so years ago. That is why I want to get rid of us—but I also want to get rid of the life Peers as well.

Let me continue. The important quote from 1999 is that,

“the House … will be the stronger, the more independent of patronage and the better”,

and:

“I believe without equivocation … that the House of Lords will be better for the 92”.—[Official Report, Commons, 10/11/99; cols. 1200-01.]

Those words were spoken by my now noble friend Lord Cormack, who clearly does not now believe that.

He is not the only former MP to change his mind about this House. On Monday, we heard a very good speech from the noble Lord, Lord Rooker, who admitted that when he was in the House of Commons he was totally ignorant about this House and did not pay any attention to it. I totally concur with that. When I was a Minister in the 1980s, I found that my Secretaries of State were not very conversant with the procedures of this House and found us an irritation—there were then far more hereditaries—but subsequently changed their mind.

[Baroness Farrington of Ribbleton (Lab)]

Will the noble Earl assist me? I wish to listen to all the arguments. Has he just regrouped the amendments in front of us? He has spoken to a later amendment. It would be helpful to the House if such groupings were made more formal.

[The Earl of Caithness]

I certainly apologise to the House for not grouping the amendment. I put the amendment down yesterday, which was rather later than I should have put it down. It came to my mind as a result of the debate we had on Monday.

As I said, my noble friend Lord Cormack is not the only one to have changed his mind about this House. The noble Lord, Lord Steel, when he was leader of the Liberal Party, carried the Asquith banner for the abolition of the House of Lords. When he came here, he had the chance to fulfil that, and we all hoped he would. The next leader, Mr Clegg, scuppered the next attempt to reform the House almost single-handedly. It was a great shame.

I warned the Lord Speaker—he is no longer my noble friend because he is the Lord Speaker—that I would refer to him. He quite rightly suggested when he took his position that the House of Lords was a little large. He was in favour of an elected House in 1999. He said so in the debate. He also voted for and against the amendment in the same year. It was at different times: one was February or March of 1999 and the other was in November. My noble friend Lord Hailsham voted against the amendment in 1999—but he stood for election as a hereditary Peer, so he obviously thought it was quite a good idea.

As my noble friend Lord Strathclyde said, the debate on Monday has brought a sort of consensus that all these areas need to be looked at. I remain of the opinion that keeping the hereditaries here will bring about a speedier and more radical reform of the House of Lords, which I firmly believe is needed.

[Lord Cromwell (CB)]

My Lords, I am the beneficiary of one of these by-elections, and that has made me very shy about participating in our debate today—even more shy than I normally am. I was in two minds right up to this morning as to whether I should do so. I know that a good number of others in my position are not here, partly because they are too anxious of being branded reactionary, whatever their actual position on House of Lords reform may be. Some of the barracking we are hearing probably means they were right. On balance, I have decided that, as a beneficiary of such a system, I ought to be able to stand here and debate it. There are certainly some points I would like to make, and we may get to those, but beyond that I would like to emphasise one thing: I am going to be guided by what emerges in the debate. That is how we should do things. I am not here as a wrecker; I am here to participate in a debate, as I hope we all are.

--- Later in debate ---

[Lord Grocott]

My Lords, the Government have stated their position, which has been consistent throughout. I never thought that they would throw their weight behind this Bill. However, I am frankly surprised at their reasoning. I do not think that the fact that they are having to sort out the economy and Brexit is a good reason for opposing a two-clause Bill, which I think has pretty universal support and would improve the workings of this House. However, the Minister’s reassurance may be enough for the noble Lord, Lord Trefgarne, to not ask the opinion of the House on the amendment that he has just moved, and thereafter not to move his further amendments, so that we get through the Committee stage of this Bill and then proceed to Report, if that is permitted. I do not think the Bill is likely to proceed to Report, and that is not something I feel pressed to pursue. However, I obviously regret the fact that it is unlikely to proceed further if the Government say so. Bearing in mind the knowledge of the noble Lord, Lord Cormack, in relation to the high death rate of Private Members’ Bills, from whichever House they emerge, I think that the ball is now in the court of the noble Lord, Lord Trefgarne.

[The Earl of Caithness]

My Lords, I congratulate the noble Lord, Lord Grocott, on putting in all four Tellers on the first amendment. He was, of course, beautifully educated by the late Walter Harrison, one of the great Whips of the Labour minority Government of the 1970s, and he must have learned at Mr Harrison’s knee. Indeed, there is an extremely good play, which I recommend to all your Lordships, in which this is portrayed. The noble Lord has learned the arts of government extremely well, as indeed he did when he was PPS to a former Prime Minister. That was complemented by his excellent term as Chief Whip in this House. Therefore, we have a lot to learn from the noble Lord on handling parliamentary procedure. Is he prepared to accept any amendments to his Bill to improve the way that hereditary Peers are elected? In other words, is he set in his view that the banning of succession is the only thing that matters, not trying to get the system to work better?

[Lord Grocott]

My view is diametrically opposed to that of the noble Earl, Lord Caithness. I can see no compromise. You cannot half hang a man—you either have the by-elections or you do not. The noble Earl thinks that we should have them. I think that we should not. The Government cannot support the Bill at the moment but I think we could conclude the Committee stage, given that the noble Lord, Lord Trefgarne, has been given the assurances that he sought from the Government. Therefore, we can conclude these proceedings in 10 minutes through the remaining amendments not being moved. I have been around a long time and I know that in practical terms that means the Bill can proceed no further.

House of Lords Bill [HL]

Earl of Caithness Excerpts

2nd reading (Hansard): House of Lords
Friday 21st October 2016 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, my noble friend Lord Elton is absolutely right to say that there is concern about the size of the House. But my noble friend Lord Strathclyde is equally right to say that this is more a perception than reality. Of course, there was a perception pre-1999 that the House was too big, but the vast number of the hereditary Peers did not attend. The net result of the 1999 Act was that about 90 working hereditaries were removed from the House, as well as a lot of non-working hereditaries.

If we are concerned about the size of the House, the Bill before us does nothing to reassure me. To limit this House to the size of the House of Commons would positively encourage Prime Ministers to keep on appointing working Peers in order to build up their number to 600. I think that that would be to the great detriment of the House.

My noble friend Lord Strathclyde was absolutely right to say that when we move out of here in a few years’ time, that will be the ideal point at which to start reducing numbers. Rather than follow the suggestion of my noble friend Lord Elton, I would rather go for a fixed number of Peers. I would go for 350, which is not that different from the current working House. To have a figure of 600 that would be variable over the course of a five-year Parliament would be a nonsense that would not help the situation.

If it comes to an election in order to achieve that, it will be nothing new in your Lordships’ House. For 273 out of the last 309 years, part of this House has been elected. I refer in particular to the Scottish representative Peers. Since 1707 until the Peerage Act 1963, there were 16 elected Scottish Peers—Peers of Scotland. After every general election they held an open election in Holyrood Palace, to which they were summoned, and they decided who the 16 would be. When that happened in 1707, it represented a reduction of 90% of Peers sitting in Parliament, because there had been 143 Scottish hereditary Peers sitting in the Scottish Parliament. So what my noble friend Lord Elton suggested, and indeed what the Lord Chancellor at the time, the noble and learned Lord, Lord Irvine of Lairg, who I am pleased to see in his place, did in 1999 is minor in comparison with what the Scots suffered in 1707.

One of the problems that resulted from the reduction in 1707 applies to what my noble friend suggested. There was resentment in Scotland that they were not properly represented. As we move increasingly towards becoming a full-time working House, the remoter parts of the country are going to get cut off. I found this particularly when I was living in Caithness; it was one of my reasons for moving back to London. If one wanted to take part in business here on a Monday, the only way to guarantee that was to leave home on Sunday night. On a good day it was possible to make the journey in around five hours, but on a bad day it could take well over 16 hours. If the House of Lords is to become more political and professional, inevitably Peers in the outer reaches are going to be squeezed because they will not be able to participate.

[Lord Foulkes of Cumnock (Lab)]

I support what the noble Earl said. Is he aware that almost 50% of the membership of this House is currently from London and the south-east of England?

[The Earl of Caithness]

My Lords, I am grateful to hear that from someone who lives comparatively close to an airport compared to where I used to live. I always welcome the noble Lord’s support—and indeed he makes a point for me. We are far too south-east orientated—M25-orientated—and if there is to be an election, it should be on a regional basis rather than on any other. We must make certain that we cover the geography of this country.

Also, the election should not be held on the proportion of Peers sitting at the moment but on the vote at the last general election. At the moment we have a disproportionate number of Liberal Peers, while the number of UKIP Peers in this House is insufficient to represent the electorate, and there are no Scottish Nationalist Peers. That might be their choice, but at least it should be built into our legislation that the parties that get a certain percentage of the vote at a general election should be allowed to be represented here. It should be up to them who they put up and in which region.

So I say to my noble friend that I would like more of what he is proposing in the Standing Orders to be on the face of the Bill—far too much is left to Standing Orders—and that the system that he is proposing is not one that will be workable or indeed popular throughout the country.

Succession to Peerages Bill [HL]

Earl of Caithness Excerpts

Friday 11th September 2015 Lords Chamber

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

My Lords, I, too, congratulate my noble friend Lord Trefgarne on securing this Second Reading, which has provoked an engaging, thoughtful and at times entertaining debate. Among his many accomplishments, I know that my noble friend has spent much time supporting the excellent Brooklands Museum, which I thoroughly recommend to your Lordships, where he has helped to conserve and restore to life the gems of British motoring and aviation. Today his intention and energy has turned to protecting and conserving that other part of our nation’s history, the peerage.

My noble friend’s energy and tenacity is obviously shared by a number of your Lordships who have spoken today. Although it is invidious to single out anyone in particular, I thank my noble friend Lord Fellowes for his passionate contribution to the debate. He is clearly following in the footsteps of the great Lord Kitchener and becoming the recruiting sergeant for this campaign. I can see the poster now: “Your peerage needs you!”.

This debate reminds me that while a number of your Lordships have spent many years looking into this issue I am a mere novice, trying to get my GCSE on issues such as abeyance while many of your Lordships clearly have doctorates on the subject, so forgive me for stating the obvious and repeating a point made before. This Bill, as its title suggests, is about the succession of peerages. Its purpose is to ensure hereditary peerages do not die out and like that noble prince in Sleeping Beauty, it aims to give the kiss of life back to peerages that now lie dormant. Its primary purpose is not therefore to address the inheritance of peerages discriminating against women, which I know that a number of your Lordships have debated before.

This latter issue—the equality of treatment before the law—is one that this Government take seriously in every walk of life. As the noble Lord, Lord Pannick, and others have said, during the last Parliament the coalition introduced what became the Succession to the Crown Act 2013, which removed, as your Lordships know, the male bias with regard to the descent of the Crown. We therefore sympathise with the concerns over gender inequality in the area raised and discussed by your Lordships today.

However, as your Lordships know better than me, and as has been pointed out, addressing this area of discrimination means tackling a very thorny legal thicket. Over the summer, I asked my officials to give me the relevant debates on this issue. I rather regretted that, as I got a very large pile of reading for my deckchair. As I ploughed through those previous debates, I must confess that I felt as if I was reading a mix of Jarndyce v Jarndyce and “Kind Hearts and Coronets” with a good sprinkling of “Downton Abbey”. Indeed, as Dickens described Jarndyce v Jarndyce:

“Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it”.

The same could be said of this issue.

With that in mind, while it is obviously true that the succession of most peerages does not treat men and women equally, one must ask whether the Government ought to be devoting time and resources, both of which are limited, to addressing this extremely complex subject. Discrimination on the grounds of not just gender but race and age is clearly and sadly present in many parts of society and, despite the efforts of this Government and their predecessors, continues to blight the opportunities of many people—many more than those affected by the issues we are discussing today. When it comes to our approach to tackling discrimination, addressing these wider aspects is the Government’s priority.

I realise that these words will irk some of your Lordships and those who have campaigned on the issue that we are discussing. As has been mentioned, I see that a group called The Hares has been specifically created to lobby for a change to the law to create gender equality in the peerage by ending male primogeniture. I fear that to them I am yet another tortoise whose plodding is holding up progress but I assure your Lordships that I am more than willing to hear of ways in which this area of discrimination might be tackled. Let us not forget that, in the end, the tortoise wins the race.

The fact is that the Bill would have a very limited impact in addressing the fundamental issue here, namely gender inequality in the succession of hereditary peerages. As the noble Lord, Lord Pannick, pointed out, Clause 2(3) of the Bill explicitly states:

“Within each group of siblings”,

male heirs,

“in order of birth and their issue”,

would succeed before female heirs in order of birth and their issue. The Bill therefore permits women to inherit hereditary peerages only when there is no direct male heir. Surely, if we are to achieve equality in this area, the first born should inherit the title irrespective of their gender. I am not alone in saying this. The campaign group The Hares described the clause in an email to me as,

“clearly gender discriminatory. Under present equality legislation this is unacceptable”.

I also draw your Lordships’ attention to Clause 2(2), which states that,

“any daughter (‘D’) and her issue shall be treated for the purpose of succession as they would be treated if D had been male, save as provided by subsection (3)”.

It is not clear whose daughter is being referred to and whether this provision excludes female relatives, other than a daughter of the incumbent, from inheriting a peerage. If that is the case, this further highlights the Bill’s inadequacy in promoting gender equality.

I will now explain the concerns that the Government have with Clause 3, which provides for the revival of peerages that have become extinct. Given that we believe that many peerages have the potential to fall within the scope of this clause, it is vital that there is thorough consideration of and consultation on the significant impact this clause could have. To begin with, the effect of immediately reviving a large number of extinct peerages should not be underestimated. Before a peerage can be revived, its provenance and the right of the individual in question to inherit must be proven before the peerage can be entered on the Roll of the Peerage. The Bill would therefore create a considerable amount of additional work for the Crown Office and, most probably, the College of Arms. If the descent of a title were in any way unclear or contested, it could take years for matters to be resolved. I can almost hear the solicitors in Lincoln’s Inn rubbing their hands with glee.

Clause 3(1) states:

“For any peerage which became extinct on or after 6 February 1952”,

the Bill shall vest the peerage,

“in the person who would have succeeded to that peerage if the universal rule of succession had applied”,

to it since 6 February 1952. The Bill therefore proposes that the line of succession for all peerages that became extinct on or after 6 February 1952 is to be traced back and potentially altered from that exact date. This is very likely to have odd, and potentially unfair, consequences in some cases. For example, suppose a now-extinct peerage had been inherited by a distant male relative after 6 February 1952 and that male relative had since died. It may be the case that, applying the “universal rule of succession” from that date, the title would not have been inherited by that male relative but by a closer female relative instead. In that case, according to Clause 3(1), the fact the peerage had been inherited by the male relative would be ignored. Instead, the inheritance would be retrospectively redirected through the female. This is not only a somewhat strange method to adopt but could affect the legitimate expectations of the male relative’s successors who wished to revive the peerage. Clause 3(1), which applies the new rule of succession on and after 6 February 1952, would therefore appear to be incompatible with Clause 5(3)—which states that the Bill will not affect any succession to a peerage which has already taken place. Similar issues arise in respect of Clause 3(2) and (3), which make provision for peerages which became extinct before 6 February 1952. These are changes that should not be undertaken lightly without proper consideration of their effects or of any potential unfairness or conflict they could cause.

Turning to the issue of the inheritance of land associated with some peerages, Clause 5(2) states that the Bill, if it were to become law, would,

“not affect the succession to land or any other property real or personal”.

It should be noted, however, that there are a number of hereditary peerages which carry estates, either by virtue of the terms of the instrument creating the peerage or as a result of a trust arrangement which has been put in place in order to ensure that the peerage and property descend together. In those cases, the Bill would create a strange system whereby property would continue to be inherited by the oldest male heir even if, under the Bill’s provisions, the title went to a female heir, leading to titles being split from their associated estates. It would be impossible to say how many titles would be affected by this provision, given that trust arrangements are often confidential matters. This is another aspect of the Bill that would have to be carefully considered in order to prevent any unintended consequences.

My noble friend Lord Northbrook raised the issue of the ECHR and Article 14. During my summer reading, I also had the opportunity to look into it. The prohibition of discrimination set out in Article 14 of the ECHR applies only in conjunction with other rights set out in the convention. The right to peaceful enjoyment of one’s possessions is set out in Article 1 of Protocol 1 to the convention. It has been argued—unsuccessfully—that Article 1 of Protocol 1 applies to hereditary peerages and the right to inherit a peerage, and therefore that accession to hereditary peerages engages Article 14. Although peerages have been described as a type of property under English law, there is Strasbourg case law to the effect that nobility titles cannot be regarded as possessions within the meaning of Article 1, Protocol 1.

The High Court of England and Wales has confirmed that the right to sit and vote in Parliament by virtue of a hereditary peerage is not a possession. Furthermore, Strasbourg has held that Article 1 of Protocol 1 applies only to a person’s existing possessions, not future ones. It does not guarantee the right to acquire or succeed to possessions. Therefore, as Article 1 of Protocol 1 does not extend to peerages or the right to succeed to a peerage, Article 14 cannot be engaged. It is highly unlikely that a successful claim could be raised under the Human Rights Act 1998 in the UK domestic courts, as the Act does not apply to the Lords Select Committee on Privileges and Conduct, which is the only domestic court with jurisdiction to hear peerage claims.

To conclude, I fully understand the interest and passion that this issue raises for some families, but as your Lordships would, I hope, agree, one of the great strengths of this House is to legislate with care and caution, to kick the tyres of policy and to think through the consequences of our actions. In that spirit, I hope that I have clearly set out the Government’s reservations about the approach set out in the Bill.

The Bill itself fails properly to address the issue of gender discrimination in the succession to hereditary peerages: rather, it provides a means by which hereditary peerages which have died out can readily be revived. In addition, the Bill raises numerous problems and concerns, particularly relating to Clauses 2 and 3— problems which would take up a significant amount of parliamentary time and consideration in attempting to work out. Indeed, they may never be resolved, due to considerable uncertainties as to whom the provisions of this Bill may adversely affect and the likely unintended consequences were it to become law.

By making a single, rather sweeping change to the descent of all hereditary peerages, potentially the Bill would affect a considerable number of families in different ways, according to their own individual circumstances.

[The Earl of Caithness (Con)]

My noble friend has spoken on this point, and we have listened with care. Can he tell us how many peerages have become extinct since 6 February 1952?

[Lord Bridges of Headley]

I will have to write to confirm that, but I am led to believe that there are scores. I will need to write to my noble friend to confirm that.

In some cases, the Bill will lead to the disinheritance of individuals with legitimate expectations to inherit an hereditary peerage. Whereas the Succession to the Crown Act could be introduced without disturbing the legitimate expectations of anyone in line to the throne, I suggest that even with lengthy and detailed consideration and research, it would be impossible to foresee clearly all the effects of the Bill. At the very least, such a change should not be undertaken without extensive consultation and public discussion.

Above all, I hope that your Lordships would agree that given this complexity, the Government’s priorities should rightly lie elsewhere, as I said at the start.

Let me conclude by stressing that I hope that all I have said will be seen as constructive criticism. The Government recognise the inherent inequality in the succession of hereditary peerages and are happy to consider further attempts by interested parties to address the multitude of issues of gender discrimination which overcome the complexity that I have outlined.