Succession to the Crown Bill

Lord Lang of Monkton Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Lang of Monkton]

My Lords, I enter this important debate with some trepidation. I cannot help wishing that the Deputy Prime Minister was able to say the same thing. A letter received by the Constitution Committee from the secretary to the Catholic Bishop of Nottingham criticised the,

“nonchalance with which the Deputy Prime Minister seems to be treating a Bill that goes to the very heart of our constitutional settlement”.

I agree. Legislating on the succession to the Crown is like performing open-heart surgery on our constitution: it needs great care.

As a member of the Constitution Committee, I share the view expressed in our report that a Bill of this kind should not have been fast-tracked. I am glad that the Government have to some extent relented, but I feel that the preparation of the Bill and the consultation upon it have also been fast-tracked. There has been no prior debate in Parliament, no pre-legislative scrutiny, no White Paper—we are presented with a fait accompli agreed by all the other Commonwealth realms. We are told it has been extensively discussed with those realms, but one cannot help suspecting that such scrutiny will have been confined to consideration of how these changes would fit into their own constitutional laws rather than the merits of the changes themselves.

Now, constitutional arrangements that have provided stability and clarity for three centuries are to be swept away in the blink of an eye. I do not wish to strike a discordant note, but it is hard to avoid the view that parliamentary scrutiny was not really wanted. I have no problem with the introduction of gender equality in the line of succession. It is in keeping with the mood of the times and does not seem to raise long-term problems for the Crown.

Freedom of religion is in principle a desirable aspiration, but of course this Bill does not provide it, and nor can it. The nub of the matter is that on the one hand it allows the heirs to the Throne for the first time to marry Catholics but on the other hand it leaves untouched the absolute ban on the Throne being occupied by other than a member of the Church of England. The dynamics of the Bill create an inescapable collision course. We may not know precisely what the unforeseen consequences will be or when they will emerge, but we may be sure that sooner or later they will emerge.

As neither a Catholic nor an Anglican myself, I have tried to view objectively the potentially destructive tension that is built into the Bill, but it seems to me that in a hereditary monarchy such as ours, the line of succession should be secure, settled, transparent, wholly predictable and with no room for doubt. The changes introduced by this Bill do not meet that test, and that may well place the stability of the monarchy at risk at some time in the future.

I would like to focus my remarks on two issues: first, the repeal of the Royal Marriages Act 1772, which could easily have been updated and modified, and its replacement with an arbitrary designation of the first six persons in the line of succession as requiring the monarch’s consent to their marriages; secondly, the change introduced in Clause 2, which will relax the ban on marriage to Catholics. Confining the requirement of marriage consent to six certainly narrows the field, but it increases the focus upon them. It thus condenses the problem. It jars with the relaxation of the ban on marriage to Catholics in a way that is at best unsettling.

Why six, one wonders? I ask my noble and learned friend what the rationale for this number is. In his opening speech, he mentioned Queen Victoria, who started life at five removes from the Throne. Well, six is one more than five, but that is hardly a considered basis for long-term constitutional change. The Deputy Prime Minister described the decision as being arbitrary but pragmatic. With great respect to him, I suggest that “ill considered” and “wrong” could equally well describe it. I believe that the number is inadequate because it does not bring certainty. There is a tendency to think of the succession in a linear way, with the Crown passing down tidally through the generations, but that is not the way it happens. Initial expectations often go unfulfilled. Henry VIII, for example, was a second son, Charles I was a second son, George V was a second son, and George VI was a second son.

One should instead think of the line in terms of family groupings and with wide age ranges within each. Let us consider in times to come, perhaps many years from now, the example of an heir to the Throne, No. 1 in the club of six. He or she may already be aged around 60 or more given the trend of life expectancy, married to an Anglican, and with three children and a couple of grandchildren. They are all club members. The future looks secure, but life is always fragile—and I did not list the ways in which disaster can befall a family.

The normal assumption seems to be that those in the line of succession could start their lives close to the Crown then move down the line and out of the club of six as time goes by. But it could happen the other way. In the example that I have given, the reigning sovereign’s second and only other child could suddenly find themselves back in the club of six and heir to the Throne, but while out of the club he or she had married a Catholic and they had Catholic children, who are therefore debarred.

So the line shoots out to nephews and nieces of the sovereign and their children, who have been living relaxed and normal lives in who-knows-what marital and religious circumstances, with no expectation of being brought back into the club of six in which some of them may have started their lives. We would even end up with a succession by leapfrog, finding Anglican heirs each surrounded by their Catholic families.

Perhaps I exaggerate the risk of this kind of instability, but perhaps not. Six, I suggest, is not enough if we want a settled, stable line of succession of which we can be certain—12 perhaps, but not six. I understand that the number of six was not mentioned in the Perth agreement and ask my noble friend whether the Government might be receptive to an amendment to that effect.

On the issue of religion, we are told that both churches have expressed acceptance of the Bill. The Catholic Church has nothing to lose and everything to gain from it. Anglicans, however, have everything to lose and nothing to gain, so I fear their position says more for their generosity of spirit than for the worldliness of their wisdom.

In fact, the clause covering sovereign’s consent does not mention Catholics, but by specifying no religion it opens the door somewhat furtively to a potential ban in the hands of the reigning monarch on any of the first six in line at any one time from succeeding to the Throne, not because a Catholic spouse might be involved but for whatever reason or whatever religion the monarch chooses. Far from being a restriction, that is quite a substantial extension of their power.

In our constitutional monarchy—the noble Baroness referred to this—the monarch acts on the advice of Ministers, but given the very personal and familial nature of the decisions taken, involving some of but not necessarily all his or her own children, one can readily see how painful these decisions would be for the monarch and how easily controversy and crisis could alight on the head of the sovereign of the day. That is not a recipe for stability, or for happy families.

We know from the Minister’s statement during debate in another place that anyone who has ever “professed” the Catholic faith is barred from ever succeeding to the Throne. That seems to be definitive and to rule out a change to Anglicanism for those royal children who started as Catholics, again raising the possibility of block disqualifications from the succession. In his oral evidence to our committee, however, the Deputy Prime Minister indicated that the Catholic Church’s attitude had changed so that the royal children of a Catholic parent could be brought up solely as Anglicans and thus remain in the line. He told us:

“There is a lot of flexibility”.

The secretary to the Catholic Bishop of Nottingham disagreed. His letter to us told us that,

“there is still a presumption that the Catholic party in a so-called ‘mixed marriage’ will promise to have their children baptised and brought up as Catholics”.

I know that my noble friend referred to this, but I make no apology for repeating it as it is important. He quoted to us the detailed rules from Canon 1125 of the Code of Canon Law, which are indeed robust. For good measure, he added:

“Should a Catholic spouse of a future sovereign wish to bring up their children as Catholics, a constitutional crisis would surely ensue”,

so having a word with your local bishop might not get the right result.

Frankly, that is no way to contemplate the line of succession to our country’s Crown. The Deputy Prime Minister has cheerfully suggested that negotiations for a dispensation could be opened with the Vatican. I noticed that my noble friend was slightly backing off from that position today. Perhaps one could appeal to the Pope, and I suppose the Pope might say yes, but he might say no. After all, there is not a great deal of support in the Vatican for gender equality or religious freedom.

Anyway, I seem to remember that in 1533 Parliament passed an Act in Restraint of Appeals to Rome, which was part of the process whereby England underwent the Reformation. I would not go so far as to suggest that the consequence of this Bill might be to unpick the Reformation, but to encourage the British Royal Family to appeal to Rome in matters affecting the succession to the British Crown seems rather to cut across the history of the past five centuries.

In conclusion, this is not a well made Bill. It defers to the zeitgeist in matters of gender and religious freedom, at the expense, in the latter case, of stability and certainty. I believe that as a result of it pressure is bound to grow over time to allow our sovereigns to have a free choice of religion. Whether that is right or wrong, that would bring with it a sea of troubles. Church and monarchy in this country have been closely linked since almost as long as these two institutions have existed, long pre-dating the matters that we are tinkering with in the Bill. In each reign, the bonds are renewed and made manifest in the coronation oath and the anointing of the new monarch. This little Bill, hurried through Parliament, could well turn out to be a halfway house. I fear it does a disservice to both church and monarchy and casts an unsettling shadow over the future.

--- Later in debate ---

[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—

[Lord Lang of Monkton]

I am grateful to my noble friend for giving way. I think he is mistaken. I think he is building a house of cards. Even the members of the convention on the Declaration of Rights did not believe that it was legally binding. That is why they brought forward in 1689 the Crown and Parliament Recognition Act. That shows that Parliament did not consider itself bound by the Bill of Rights, which in the first instance had enshrined the Declaration of Rights. It placed it on an unimpeachable legal footing. There can be no doubt that all the matters that were covered by the Declaration of Rights were subsequently properly enshrined first in the Bill of Rights and then in the Crown and Parliament Recognition Act 1689.

[Lord James of Blackheath]

I am grateful for all helpful contributions.

The Bill of Rights was read to William and Mary by Mr Joe Browne, who was then the Clerk of the Parliaments, or rather he should have been reading it to them but he had sent his footman down with a sicky in the morning to say that he was feeling too unwell and could not turn up. He subsequently said that it was because he felt an irritation at the back of his neck where an axe would come. Similarly, the Archbishop of Canterbury declined to come, and proceedings were handled by the Bishop of London.

On the day in question, when it had been read through, William stood up and said:

“This is certainly the greatest proof of trust that you have in us that can be given which is the thing that makest us value it the more and we thankfully accept what you have offered”.

At that point, the Marquess of Halifax knelt down and gave the crown to him. Thereafter, the sackbuts and cornets of Parliament went out with armed guards to take the Declaration of Rights around the city, where the proclamation was read in four places and the next day was announced as a public holiday.

It seems that we are seriously confused as to which bit of the past constitutional history of this country we are trying to alter and what our rights are in so doing. None of the constitutional papers or others that have been given to us even begins to approach definitive advice on that.

I return to my initial point. I believe that we are not doing as we are required to do, which is to support the Crown in the decisions that they have to make, if we pass something that may still be a breach of that oath that was signed by Her Majesty on her proclamation day back in 1962.