Succession to the Crown Bill

Lord Elton Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord James of Blackheath]

My Lords, 325 years ago, the streets were full of a tumult of people celebrating the fact that the previous day, William and Mary had jointly accepted the Throne of England and committed to supporting the Protestant religion as a right of the people. I do not come today to say that I disagree with the principles that the Bill seeks to establish. However, as we have heard this morning, it needs an awful lot of tidying up on many issues. I have serious doubts about whether we in this House have the legitimacy to give a decision. I believe that we would be acting illegally and in contravention of our oath on joining the House if we were to consent by a vote to this legislation.

My reasoning is that I believe very strongly that we have been caught out—as I always feared that one day we would, although no other such Bill has come before us—by the fact that we are being given a delegation of the prerogative of the Crown, which puts the burden on us to decide whether this is in breach of the coronation oath. I submit that it is, and therefore that any noble Lord who votes for the Bill now should walk through the Lobby and out of the front door and should never return, because we will all have automatically disqualified ourselves under our oath of allegiance to support the monarch in the discharge of their obligations under the coronation oath.

Over the past couple of weeks, I asked various notable constitutionalists and legal minds around the House for their reaction to this idea. I find it significant that only one of the six is in the House today. I got a very interesting bunch of answers. Two Members of the Privy Council said almost exactly the same thing: “Good gracious, old boy, what a question. We have never been asked that. Nobody has ever given us any advice on it, so I suppose it must be all right”. That is not a good enough basis on which to proceed with a Bill such as this.

I went to two notable constitutional academics. One of them was my whip, my noble friend Lady Perry. She said: “You’ve got it quite wrong, old boy. It’s absolutely not like this. The Act of Settlement is the only thing that we need worry about, and we can alter it any time we want. We need have no concern about what is in the Declaration of Rights”. The second academic told me: “She’s completely wrong. It’s all about the Declaration of Rights and not about the Act of Settlement at all”.

On further reflection, and having taken further advice, I decided that they were both wrong—and I will show why in a moment. I sat down to work out what would be the reasons why we would receive a delegation of the royal prerogative. At this point, another noble Lord I put it to said: “Yes, you are definitely going down the path of treason”. I do not wish to commit treason, but the situation at the moment with the Bill is that if we are to proceed, we need to know what we are doing in the context of the delegation of the prerogative. I can think of only four reasons why we might have it, and this is where I am treasonous. The first, I believe, is that Her Majesty might very well have decided that this was an issue of such public concern and interest that it should not fall to any member of the Royal Family to give an opinion on it themselves. They are too closely involved. They would rely on the wisdom of Parliament to guide the interest of the people as a whole by giving its opinion on it. That would be fine. That is not in any way exceptional.

[Lord Elton]

I have stood at the Dispatch Box and signalled the ceding of the royal prerogative on more than one occasion. It actually happens quite often; it is just that people do not notice.

[Lord James of Blackheath]

I am grateful for that intervention. The fact that that would apply in this case should be read into the record of Hansard before we are asked to vote. It should come from the Leader of the House. We need that on authority.

There are other reasons why this might be. It might be that the Majesty of the Crown is concerned that this is already seen to be in breach of the coronation oath and it is wondering whether it can avoid that problem by having us give an assent that overrides that breach of the coronation oath.

The third possibility is that the Majesty of the Crown simply does not like this at all and is relying on our good sense and common sense to throw it out. The fourth possibility is that the Majesty of the Crown really does not mind and thinks that it should leave it up to us to decide. We need clarification about the reasons why we have the delegation of the prerogative in this case.

In all of that, I have been making the assumption that we are talking here about the coronation oath. But since I asked my questions, I have found that there is another oath that preceded the coronation oath, which applied to every monarch in the 20th century. It is only 54 words long and I would like to read it to the House. This was signed on the morning that Her Majesty returned from Kenya. She was rushed to Clarence House in order to sign a proclamation oath so that officials could get on with what was now overdue—to get the royal proclamation of the new monarch before darkness set in in London. It states:

“I, Elizabeth do solemnly and sincerely in the presence of God profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the throne, uphold and maintain the said enactments to the best of my powers according to law”.

That is 54 words. I wish noble Lords would tell me which part of the Bill does not shred that oath.

As I said, 325 years ago, William and Mary accepted the throne. The circumstances under which they did so have a direct bearing on where we are today. It is a vexed question for me. Are we concerned with the Act of Supremacy or the Declaration of Rights? I am convinced that it is the Declaration of Rights. Every aspect that is supported by that oath is provided for in the Declaration of Rights, not the Act of Supremacy. Therefore, we need to be sure that we are setting out to amend the right bit of legislation and the right Act. I think that we have the wrong one.

William arrived at Brixham on 5 November, 1688. He set off with his own personal army of 13,500 to London. We call it the glorious bloodless revolution, but it was not. Some 104 people were killed just getting past Reading alone. It was not a bloodless revolution at all. When he arrived here, he was welcomed by the Lords and rulers of the day. James was still in the country. He wanted to go. William wanted James to go as well, but unfortunately the Bishop of Rochester could not get the plot. They sent James to stay with him because it was the nearest place that he could get a boat to go to France. The Bishop of Rochester seemed to think that he was the jailer to James and kept bringing him back every time he went down to the boat. Eventually, the House of Lords had to send some gentlemen down to have dinner with the bishop sufficiently to get him intoxicated so that he would not notice when James slipped out to get the boat, which he did. After that, they were able to proceed with the final negotiations with William and Mary for the throne. They put the Marquess of—

--- Later in debate ---

[Lord Elton]

My Lords, I enter the forum with some trepidation. These are very complex and sensitive matters. Until about halfway through I thought that I would probably scratch. After that, I thought it was too late. I hope your Lordships will bear with me for a few moments.

I start off in a dilemma because I am not aware of any Bill that I have encountered in which the Government have consulted so extensively and for so long around the world and, no doubt, between the two palaces—Lambeth Palace and Buckingham Palace—but they have not actually consulted Parliament at any great length. Of course, the constitution of this kingdom rests on two foundation stones: the Crown and Parliament. One had to listen with sympathy to my noble friend Lord Lang when he complained, in a powerful and important speech, about the haste with which this is being done here.

I am searching for reasons. I think the reason adduced so far has been the impending happy event for the Duke and Duchess of Cambridge. This Bill already has retrospectivity in it in the amendment to the Royal Marriages Act 1772. That principle can be used in this case so there is no hurry for that.

Then the question is: would the danger of an amendment here delay the Bill, making the rest of the Commonwealth unsettled and impatient? But the Bill has already been amended, at Second Reading in the other place. It is a small amendment but quite an important one, which proposes that,

“after ‘descendants’ insert ‘from the marriage’”—

otherwise the principles of illegitimacy would have to be addressed. I do not know if that is being agreed around the Commonwealth but if it is, there is clearly not tempestuous haste needed.

I am sure that will all be explained, and the purpose of a Second Reading is not really to unpick the detail but to address the general principles. The first principle, on which I agree with my noble friend Lord Lang, is that certainty is better than flexibility when it comes to matters of this sort. Secondly, one’s mind is focused, as was the mind of the noble Lord, Lord James, by the bringing to the table of the royal prerogative at the start of this process.

We are at the heart of history here, and many of your Lordships have looked back through history and seen various conflicting things. I see a constitution that has emerged from the power of the Crown being fought over by families and then by dynasties; then the struggle between the wish to be totally sovereign and the wish of the papacy to influence if not guide what happened here, and finally being domesticated after the Civil War in the settlement of 1688. The Crown then became the central focus of the national identity, but it was within the restraints of Parliament.

We have been on that subject for a very long time in this House, because the power of the Crown, which was severely limited by the invention of Parliament, is now being put back into it—but the Crown has changed: the Crown is not an individual; it is not a family; it resides in the Government, all except the very top. The Government do not consist of a thin band of ambitious politicians; they are a vast machine of civil servants, many with a good sense of history, many of them very pragmatic and many of whom regard Parliament as an unnecessary constraint—I have encountered some of them and been told this in terms. We are therefore the trustees of something which is already at risk.

We now look at the functions of a Queen, the person of the Crown, as opposed to the institution of the Crown. That is important in that it is spiritual. There is a withering of the spiritual in contemporary western society, not only in Christian spirituality but in other faiths. A secular society does not have the moral stability of one which has faith at its heart. The combination of the Crown being both the head of state and the head of the established church has an enormous and important symbolism and gives the monarch access to the church and vice versa. That is part of our national identity.

The other great change has been in the demographic composition—I would probably more correctly say the ethnic composition—of the country to which we all belong. That change has been dramatic in my lifetime. Not everybody adapts so quickly and completely as the noble Lord, Lord Carlile, to the culture and ethos of this country. What attracts is not just the permanence, the longevity and the historical continuity to which he referred but also the person of the sovereign. It is a happy coincidence that this issue has arisen during the reign of the present Queen, who I think is closer to the heart and the understanding of the country than almost any monarch in historic memory, and for that we owe her a great debt.

The nature of the monarchy is to evolve, to bend and to change to the needs and necessities of the time and the social pressures on government and on the Crown. It keeps the sympathy of the people by looking after, tuning into and being in sympathy with basic fundamental and moral understandings of the people. One thing is fairness. The introduction of this equality will be widely understood as an element of fairness which is needed in the structure of a country which seeks to be both profoundly democratic and a monarchy.

For those reasons, I bury my doubts and difficulties—quite a lot of them have been dug up during this debate. Some of them will be answered by my noble and learned friend Lord Wallace. As I can see that he is writing something about me, I shall extend my words for a moment or two by saying that the rest of the difficulties will come out in the wash in Committee. I hope that the Committee stage will be as long as is necessary to address the question. That at least is required as a gesture towards those of us who feel that the timetable at the moment is far too fast. I have bored your Lordships too long. I hope that I have reassured noble Lords a little; I have certainly reassured myself quite a lot.