Succession to the Crown Bill

Lord Lexden Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Lexden]

Walter Bagehot wrote in 1867 that,

“one-half of the human race cares … fifty times more for a marriage than a ministry”.

So it came as no surprise at all when this coalition ministry decided that the immensely popular marriage of the second in line to the Throne should be followed by fundamental reforms of the monarchy, which had been under discussion for some years—indeed, as the noble Lord, Lord Luce, reminded us, for decades. The reforms overturn some of the principles on which our monarchy has rested, for the most part securely, since the Reformation nearly five centuries ago, principles strengthened and extended under the 1689 settlement. The changes are therefore of profound importance.

The coalition ministry is to be congratulated on securing for them the full support of the 15 other Commonwealth countries of which Her Majesty the Queen is head of state. However, little has been heard of the progress that the 15 are making in implementing these fundamental changes. Those who have been following events in the 15 do not report consistent vigour and diligence. Despite progress made in Canada, to which my noble and learned friend the Minister alluded at the outset, doubts have been expressed about whether the necessary assent will in fact be forthcoming from all of them. The Government’s most laudable aim is that the new era in the world’s greatest monarchy, which is now foreshadowed, should begin simultaneously in all 16 realms. It would be useful to hear from my noble and learned friend today when the point of common action envisaged by the Government is likely to be reached.

The merits of the reforms are well known and I shall not dwell upon them. An immense amount of preparatory work has clearly been done. Even so, the Government seem so far to have given insufficient consideration to some of the most significant and wholly predictable consequences that these major constitutional changes will have. The most obvious and predictable of them all involve the Roman Catholic Church. Other noble Lords have alluded to this issue but, in view of its importance, I would like to return to it, following meekly in the wake of my fellow member of the Constitution Committee, my noble friend Lord Lang.

No one who marries a Roman Catholic in future will be excluded from the line of succession, but no one who is a Roman Catholic can wear the Crown. Immediately, people ask the obvious question: if a marriage to a Roman Catholic is contracted in the direct line of succession or close to it, in what faith will the children of that marriage be brought up? Confronted with this question by your Lordships’ Select Committee on the Constitution last month, Mr Clegg was totally untroubled, saying:

“The Catholic Church itself has not had a doctrine for many years obliging people who are of a mixed religious denomination to educate their children as Catholics … There is a lot of flexibility and the Catholic Church has been very clear about that”.

Mr Clegg is married to a Roman Catholic and might have been expected to have been absolutely accurate in his comments. In fact, as this debate has made clear, he was both right and wrong: right that the Roman Catholic Church is capable of exercising flexibility, but wrong that it has shed its doctrine on mixed marriages. As the Reverend Andrew Cole, to whom my noble friend Lord Lang, alluded, private secretary to the Bishop of Nottingham and Catholic chaplain to the University of Nottingham, stated in a letter to the chairman of the Constitution Committee, provoked by Mr Clegg’s remarks, there remains,

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

A blithely untroubled optimist such as Mr Clegg may happily assume that the requirement will be set aside in regard to the children of a mixed marriage in the line of succession to the Throne. In this crucial matter, helpful and reassuring comments have been made by the present Archbishop of Westminster. But Mr Clegg, the Archbishop and others speak only for themselves.

The greatest institution in our country—its 1,000 year-old monarchy—requires certainty to ensure its security and stability in the ages to come.

[Baroness Falkner of Margravine]

I am very grateful to my noble friend for giving way. I, too, was on the Constitution Committee when we deliberated this Bill. Could he tell us whether what he describes as the constraints on the children of Catholics being bought up—and the Catholic Church’s perspective on that—would be different if the monarch was married to a Muslim, as is currently permissible? Muslim children are, likewise, expected to be brought up in mixed marriages as Muslims. So the anomaly exists in the case of other faiths, but perhaps not in the case of Catholics.

[Lord Lexden]

I thank my noble friend. This is a great matter. It is not possible for a child of a monarch to be eligible to take the position of the Supreme Governor of the Church of England if the monarch is a Catholic. That is why the issue arises in this connection and not in relation to other faiths.

I suggest a firm, binding and permanent declaration is needed from the Roman Catholic Church, recognising the unfettered right of a monarch, and of his or her heirs, to bring up their children as members of the Church of England for as long as the bar on a Roman Catholic monarch is retained.

I turn to a second set of utterly predictable consequences which the Government seemed singularly disinclined to address when the Bill was in the other place. They arise from the Bill’s first provision that succession to the Crown shall not depend on gender. The monarchy enfolds a number of historic titles to which deep respect as well as great importance is attached. Here I follow my noble friend Lord Trefgarne and the noble Lord, Lord Carlile. The historic titles are central features of our nation’s heritage: the Duchies of Cornwall, Lancaster and Normandy; the Scottish titles of Rothesay, Carrick, Renfrew, Lord of the Isles, and Prince and Great Steward of Scotland; and the title of Lord of Mann, under which the monarch is proprietor of the Isle of Man.

In its report on the Bill, the Constitution Committee highlighted the issue of succession to the Duchy of Cornwall. It stated:

“When the Duke of Cornwall succeeds to the throne, the Duchy automatically transfers to the new heir. At present, however, the Duchy can only be held by a male”.

As Mr Ben Wallace, who contributed so powerfully to the debates on the Bill in the other place made clear, the Duchy of Lancaster descends in the male line if there is a male child of a monarch to whom it can pass. Great properties and wealth are attached to both duchies. Both were originally established, I understand, in the Middle Ages under charters granted in Parliament.

As is well known, Scotland provides much more readily for female succession. Can all the monarchy’s titles in the peerage of Scotland be held by a woman with the principle of male primogeniture abrogated, along with the revenues that may be attached to them? What about the historic title, Lord of Mann? The people of the Channel Islands will want to know whether there are any implications of change for the Duchy of Normandy. So far the Government have shown themselves largely indifferent to these vital questions. In the closing stages of debate on this Bill in the other place, Mr Tom Brake, Deputy Leader of the House, said:

“Titles are a matter for the monarch. Because we are restricting the scope of the Bill, we can move forward”.—[Official Report, Commons, 28/1/13; col. 730.]

I suggest that we cannot move forward on that basis. The great titles in question are matters for Parliament and the nation as well as for the Crown. Authoritative advice is surely needed on the full implications that Clause 1 of the Bill will have for these historic monarchical titles. The country is not short of learned peerage lawyers; should they not now be consulted? For in all this is there not a clear principle to be identified and upheld: that any woman who is first heir to, and then succeeds to, the Throne as Queen of our country under the terms of this legislation must possess and enjoy all the titles, dignities and honours that would be invested in a King? Otherwise, true gender equality will not be achieved.

The third and final consequence of this legislation on which I would like to touch differs from the other two in that it has not so far been evaded or left in a vague condition by the Government. Here again, I follow my noble friend Lord Trefgarne. As soon as the Government made clear their intention to set aside the principle of male primogeniture in the royal succession, they were at once asked whether this hallowed principle would also be endangered in respect of hereditary peerages. They replied that this was an entirely separate issue, which they had no plans to address. That at once raises the spectre of acute disagreement at the centre of the Royal Family itself. It would be wholly unsurprising if, in the years to come, Lady Louise Windsor, the first-born child of the Earl of Wessex, did not view with perfect equanimity the prospect of the succession of her younger brother to the earldom when the principle of male primogeniture had been set aside in the main line of royal succession. The wider ramifications are already obvious. This legislation has given determined ladies of blue blood and their male supporters the opportunity to secure greater publicity than ever before for the incompatibility between the principle of the equality of the sexes and the rules of succession attached to the overwhelming majority of hereditary peerages.

The Government cannot dispose of the matter merely by saying they have no plans to address it. The campaign for change which is now well under way will have been heartened by Mr Clegg, who said during his speech on Second Reading in another place:

“Personally, I am sympathetic to that reform”.—[Official Report, Commons, 22/1/13; col. 212.]

Elements of this legislation could introduce serious instability in the monarchy. The very existence of this legislation has already introduced it in the hereditary peerage.

I am not arguing against the principal aims of this legislation, which have such widespread political and public support. However, because of the far-reaching nature of the changes that it will make to our monarchy, the legislation needs to satisfy two clear questions: will it stand the test of time; and will it strengthen the institution that stands at the very centre of our national life? Unless both questions are satisfactorily answered, the Government will risk the charge that they have sacrificed tradition to modernisation instead of reconciling them sensibly and sensitively.

--- Later in debate ---

[Lord Wallace of Tankerness]

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

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

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

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

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

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

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

[Lord Lexden]

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

[Lord Wallace of Tankerness]

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

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