Succession to the Crown Bill

Lord Northbrook Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Northbrook]

My Lords, it is a pleasure to follow the noble Lord, Lord Thomas of Swynnerton. Living near Winchester, I have learnt a new fact about King Alfred, and maybe more will be learnt when they dig where they think he is buried, somewhere on the outskirts of Winchester, following the success of the Richard III operation.

As other noble Lords have said, the Bill makes three key changes to the law governing who can be next in line to the Throne. I approve of the legislation in principle and declare an interest as an hereditary Peer with three daughters who believes that future equality legislation should extend to daughters being able to inherit a title that otherwise might die out. However, the Government in their wisdom have decided that this Bill should be rushed through Parliament as though it were anti-terrorist legislation.

In 2009, the House of Lords Constitution Committee reported on fast-track legislation, identifying potential difficulties raised by this approach and recommending that better information be provided by the Government to explain and justify the fast-tracking of legislation. The Constitution Committee also reported on the Succession to the Crown Bill in January 2013.

In brief, I shall highlight the most important issues that the committee identified for the Government to explain their position. First, why is fast-tracking necessary? The Government argue in the Bill’s Explanatory Notes that at the 2011 Perth Commonwealth Heads of Government Meeting they undertook for this to be the first realm of which Her Majesty was head of state to introduce legislation once agreement had been reached between all of them. Given the effort involved in the other states putting themselves in a position to give formal consent:

“In the Government’s view it is now incumbent … to act quickly to introduce legislation which accords with what has been agreed”.

In addition, the Government stated that, following the announcement that the Duchess of Cambridge is pregnant, they believe,

“there is a general consensus that the law should be changed as soon as possible”.

Why the haste when the legislation is not to commence immediately? Not only do many of the Commonwealth Governments have to pass the law through their own parliaments, but I do not think that anyone has mentioned so far that in quite a few countries, such as Australia and Caribbean countries, referenda will also be necessary to approve the legislation. The Government’s case for fast-tracking is also weakened as Clauses 1 to 3 have elements of retrospectivity.

Secondly, the Constitution Committee asks what efforts have been made to ensure that the amount of time made available for parliamentary scrutiny has been maximised. The answer here seems to be none. The Government argue that they could not foresee the exact time when all the realms would be able to move ahead. This has come relatively late in the Session and so the time available is limited. However, there has been much debate about the issues, which are well known. The Explanatory Notes say:

“The Government believes that a broad consensus has been reached on the content of the Bill”.

The overall conclusion of the Constitution Committee’s 2013 report is as follows:

“In our view, the use of fast-track legislation, while it may be necessary for reasons of emergency and overriding public interest, will rarely, if ever, be appropriate … for reasons of, in the Deputy Prime Minister’s words, ‘pragmatic business management’”.

The fact that legislation is short or that the Executive do not envisage it being controversial are not in themselves reasons to set aside the usual parliamentary scrutiny of a Bill. In parliamentary scrutiny issues can emerge that had previously been overlooked or hidden.

The proceedings in the other place were ridiculously rushed. The Minister has said that there has been more than sufficient time to discuss the amendments chosen. There were only four amendments: two in Committee and two on Report. Second Reading and Committee took only five and three-quarter hours on one day; Report and Third Reading took two hours and 10 minutes on the second day. This is no way to discuss important legislation.

A major issue that emerged in the other place concerned the religious beliefs of an heir to a monarch whose wife was a Catholic. Jacob Rees-Mogg put the matter well. As the noble Lord, Lord Lang of Monkton, and others have said, Canon 1125 of the Roman Catholic Church states specifically that the bishop, who can give a dispensation for a Catholic to marry a non-Catholic, is not to do so unless,

“the Catholic party is to declare that he or she is prepared to remove dangers of defecting from the faith and is to make a sincere promise to do all in his or her power so that all offspring are baptized and brought up in the Catholic Church”,

One possible scenario in this case would be to seek papal dispensation in respect of a child’s upbringing. Is this reliance on a positive response from the Vatican a satisfactory way to guarantee the royal succession? I agree with Mr Rees-Mogg that in these circumstances—this may answer the question put earlier by the noble Lord, Lord Deben—the legislation should be amended so that a regent should be appointed under the Regency Act 1937 to take on the role of Supreme Governor of the Church of England.

A further question raised in the other place is the relationship between Clauses 2 and 3. The Deputy Prime Minister warned against,

“mixing two things here. The restriction of who must seek the permission of the monarch to marry to six individuals is separate from the issue of whether the heir to the throne can marry a Catholic just as he or she can marry someone of other faiths”.

However, the Constitution Committee says:

“conceivably the Monarch could be expected to decide whether or not a person high in the line of succession should be allowed to marry a Roman Catholic”.

The 2013 report of the Constitution Committee highlights another area. It says:

“There is a lack of explanation in the explanatory notes for retaining a requirement of consent to certain royal marriages. On whether clause 3 is compatible with Convention rights (the right to marry), it is simply stated that ‘in the Government’s view there is a public interest in having special provisions’; that the clause has ‘a legitimate aim’ and is ‘proportionate’”.

Another issue highlighted by the Constitution Committee, which has been mentioned by other speakers, arises with the Duchy of Cornwall,

“which provides the source of revenue for the heir apparent to the throne. 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. If it is to continue to be held by the heir apparent to the throne, the Letters Patent for the Duchy will need to be altered”.

Finally in this area, the Constitution Committee focuses on the effect on hereditary peerages. When this Bill goes through, the European Court may take a view on female succession to peerages. I would support female inheritance but only if there were no male heirs at all.

I was going to bring up various points made by Mr Graham McBain, a lawyer well known and respected by the noble Lord, Lord Carlile of Berriew, but the noble Lord has already covered most of my ground. I ask the Minister to answer the queries put by the noble Lord, Lord Carlile, about the problem of the Roman Catholic Relief Act 1829 and possible faults in Clause 3 regarding the number of six persons, and to emphasise that even before the Act of 1772 the sovereign had a right under common law to prevent other members of the Royal Family, such as the Queen Mother, remarrying. Thus this Bill should abolish the right in common law.

One of Mr McBain’s concerns that was not mentioned by the noble Lord, Lord Carlile, is the esoteric topic of the Treason Act 1351, referred to in the schedule. I will spare your Lordships the unpleasant details of what is being amended. Suffice it to say that Mr McBain does not believe this part of the Act is still valid, and it should be scrapped altogether.

The Bill leaves unresolved a number of consequential matters which it should have clarified. First, if Prince William and his wife have a girl, thanks to the Bill she can become Queen. However, she cannot of right become of Duchess of Cornwall because the charter of 1377 governing the duchy provides only for a male. What is the situation about her becoming Princess of Wales? Secondly, the Bill seeks to remove anti-Catholic legislation preventing the sovereign having a Catholic wife. This is all well and good. It is obvious, as Mr McBain says, that legislation preventing Catholics and Jewish people from holding other state positions on account of their religion should be abolished. The Government have forgotten about the Roman Catholic Relief Act 1829—for instance, not allowing the Lord Chancellor to be a Catholic—and the Jews Relief Act 1858. These Acts will have to be repealed at some stage as they prevent Catholics and Jews holding other offices. This could be a subject for the Law Commission to consider.

In conclusion, I support the Bill overall but ask the Minister to consider seriously the various issues I have raised.