Succession to the Crown Bill

Lord Northbrook Excerpts

Thursday 28th February 2013 Lords Chamber

[Lord Trefgarne]

My noble friend Lord Northbrook has attached his name to the amendment. It raises a slightly different issue. It is another way of dealing with the matter touched on by the noble Lord, Lord Cormack, in his Amendment 4. It is a way of dealing with this matter by way of a regency. Your Lordships have considered and discussed this possibility on previous amendments and I ask your Lordships to consider it again now. I beg to move.

[Lord Northbrook]

My Lords, I support my noble friend Lord Trefgarne in his amendment. I first raised the issue in my speech at Second Reading, so I claim a little credit for the idea. As my noble friend has said, it sidesteps a key problem if the heir is a Catholic and keeps a link between church and Crown.

[Lord Forsyth of Drumlean]

My Lords, I shall speak briefly to this amendment and pick up a point which my noble and learned friend Lord Wallace made in his response to the previous amendment when, with typical skill, he used something I said as an argument against me. I had said that the issue was too complex to be dealt with by a Private Member’s Bill. I was persuaded by the late Lord St John of Fawsley that this was not a matter suitable for being dealt with by a Private Member’s Bill and was best left to the Government to deal with. It is not really good enough for the Government to say that this is a very complicated area and it would mean having to deal with the whole issue of maintaining an established church and therefore we have gone for half a loaf. In my speech on the previous amendment I asked my noble and learned friend Lord Wallace to explain why it is not possible to devise a basis on which the monarch can remain head of the Church of England but not actually be of the Anglican faith. This amendment, moved by my noble friend Lord Trefgarne and supported by my noble friend Lord Northbrook, is a particular approach.

I do not think it is necessary to create a regency in order to do so. We did not have the opportunity to hear the view of the Church of England in respect of the previous amendment. Even if the Government’s position is that they will not do it in this Bill, it is disappointing that they are not able to explain what the options and difficulties are about it. My noble and learned friend did not fall into the trap when I intervened in his speech and asked him what the Government are trying to do here. Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic? I would be horrified if it is the latter. Of course, that is a good thing to do—if two people want to get married they should be able to do so—but I thought that this was part of a wider agenda of ending discrimination against Catholics. We need to understand why the Bill has not provided for that and why the idea contained in the amendment could not provide a way forward.

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[Lord Wallace of Tankerness]

With all respect to my noble friend, that is the reason why the Government have not gone down this road. The Government have actually sought to do three very clear things: remove the male bias in succession; remove the current prohibition on someone in the line of succession marrying a Catholic; and repeal the prohibitions in the Royal Marriages Act 1772 and replace them with others. Those are three very precise points. I made the point that to go wider than that raises the kind of issues I highlighted. That is one reason why the Government have not gone down this road.

[Lord Northbrook]

My Lords, by ignoring the amendments of the noble Lords, Lord Cormack and Lord Trefgarne, it seems that the Government are just leaving everything to chance, in the case of there being a Catholic heir.

[Lord Wallace of Tankerness]

This is not leaving it to chance. The law as it stands at the moment is quite clear that a Catholic cannot ascend the throne.

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[Lord Northbrook]

My Lords, my Amendment 13 is in this group. I apologise to my noble friend Lord Lang of Monkton for moving in the opposite direction—whereby the number of persons in line to the Throne would be decreased, rather than increased—particularly after his wonderful history lesson.

I want to reduce the impact of Clause 3 on Clause 2, and I worry that the current number of six is likely to be in contravention of the European Convention on Human Rights, which, under Article 12, provides for the freedom of marriage. Amendment 14, which states that,

“Any provision of the common law requiring any person to seek the consent of Her Majesty before marrying is abolished”,

has been brought to my attention by the eminent lawyer, Graham McBain, with whom the Minister is familiar through contact with the noble Lord, Lord Carlile. This point was referred to by my noble friend Lord Carlile at Second Reading. Even before the Royal Marriages Act 1772, the sovereign had a right, and exercised it, not under statute but under the common law, to prevent marriages of other members of the Royal Family—for example, to prevent the Queen Mother from remarrying. This right, as I understand it, still applies, whereby under the common law the sovereign could enforce his or her consent to the marriages of brothers, sisters, cousins and so on. Therefore, as the noble Lord, Lord Carlile, said at Second Reading, this right should be abolished. That is the purport of my amendment.

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[Lord Forsyth of Drumlean]

To argue that it did not take up the time and to try and present this as treating an important constitutional measure properly is quite unfair. The point is that all stages of this Bill were carried out over two days in the other place. The conventions have been that constitutional Bills are dealt with over a proper passage of time so that people can make points, the Government can think about them and perhaps even come back with a suggestion for change. By tradition, constitutional Bills have always been taken on the Floor of the House of Commons. To try to argue that this Bill was not rushed through the other place in an untimely manner, with many Members’ speeches protesting about the way it was handled, is a little misleading.

[Lord Northbrook]

Perhaps I may add to my noble friend Lord Forsyth’s comments. At least 17 amendments were put down in Committee in the other place. Only two were actually discussed. I am sorry, but to say that all the amendments put down in Committee were discussed is not the truth.

[Lord Wallace of Tankerness]

Unlike in your Lordships’ House, where every amendment tabled can be debated, amendments are selected in the other place by the Speaker. The system is different. I will not argue which is better, but I find it worth while in your Lordships’ House that we can go through every amendment that is within scope and debate it. It helps us to undertake the scrutiny role which is appropriately ours. I hope that your Lordships feel that the time allocated to this Bill and the proper phasing of it through the different stages is appropriate. As I have already said, the realm Governments were alerted to the drafting change, were given an opportunity to comment and all expressed satisfaction with it.

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[Lord Cormack]

Is my noble and learned friend saying that, because the Prime Minister has given that undertaking to international colleagues, we ratify this in every last particular? Or is he saying that we have the parliamentary process and therefore while we must adhere to the principles we can deal with the detail? There is a very big difference between the two, so which is it? Do we have the authority, as a House and as a Parliament, to alter the details, from six to 12 for instance, or do we not? If not, it is frankly an abuse of parliamentary procedure.

[Lord Northbrook]

As a supplementary, could I ask whether having been amended in the Commons, the Bill now has to be reapproved by the heads of government?

[The Earl of Erroll]

On that subject, I may be able to assist. It depends on whether they passed Acts in the parliaments to say that they would agree to whatever we do or whether they try to enact the particular provisions. It would be worth the Minister looking at how they implemented it in Canada or Australia. Did they say, “We will assent to whatever”, or did they say, “This is what we are going to do”? For simplicity, I suspect that they may have gone down the route of saying, “We will assent to whatever the UK Parliament decides”. If so, it solves the problem; though the Executive may enter into treaties on behalf of the Crown, it is for Parliament to enact the rules that govern the Executive and therefore Parliament legislates and forms the principles of these things. If this were a treaty, I would have said it was then in the power of the Executive to agree this. If it is not a treaty, it is in Parliament’s remit to decide what is done. I suggest the Minister should look at how these countries have enacted it into their local laws.

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[Lord Stevenson of Balmacara]

My Lords, the two amendments in this group would give us an alternative way of bringing the Bill’s provisions into force. Amendment 17 slightly overlooks the point that local parliamentary approval is not necessary in all realm Parliaments as we have discussed, so it perhaps should not be taken forward at this stage. However, I am interested in Amendment 16, because it plays to some of the strands of discussion that we have had both at Second Reading and today. For instance, the Minister addressed at Second Reading the issue of whether the Bill was being fast-tracked. He said:

“I accept that the Explanatory Memorandum states that, but in fact the Government in the other place paid regard to what was said by your Lordships’ Constitution Committee”.—[Official Report, 14/2/13; col. 829.]

He went on to explain that, because the Bill has retrospective effect, there is no significant time pressure, and certainly not sufficient to warrant fast-tracking—that point has been picked up and talked about a bit today.

The Constitution Committee was therefore listened to in respect of the time allocation, but it also drew attention to the constitutional importance of the Bill—which, again, the noble Lord, Lord Trefgarne, has talked about. It is this point that I am interested in. There is obviously a case for moving the legislation forward in a way which minimises any possibility of getting out of sync with the other realms, and we must have regard to that, but there is another strand, which is that this is a major constitutional position. We are all, I think, agreed on that point, if we are not agreed on how much of it we need to deal with in this process.

In some ways, what is being proposed seems pretty hole-in-the-corner stuff. Would it not play to the advantages which the noble and learned Lord has been claiming for the Bill if it were given the full parliamentary approval process for secondary legislation; in other words, going through both Houses of Parliament and being agreed by both Houses? I know that it would be more onerous and would involve a little more time and effort on the part of the Minister and his officials, but it would mean that we had the evidence that all the other realms had looked at the Bill properly and considered it. We would have the detail about which ones had put forward a different or alternative version of the words—we could check whether exactly the same intent was being imported by the words being used in those local areas—and we would have the reassurance that everything had been done, with all the “t”s crossed and the “i”s dotted. It is in that sense that I suggest to the Minister that we should think about bringing in this process.

Something that is in the control of this House and this Parliament does not affect how others do it but would play back to our sensibility that this is an important Bill worthy of the detailed scrutiny that we have given it today but worthy also of the other appurtenances that go with constitutional measures.

Perhaps I may respond on behalf of the Government in terms of where we are on the process: Forthcoming Business has the Report stage of the Succession to the Crown Bill down for Wednesday 13 March.

[Lord Northbrook]

Perhaps I may draw the Minister’s attention to something of which I have already given him notice in respect of Amendment 17; namely, the House of Lords Library paper on the Succession to the Crown Bill. It says, in summary, that when there is constitutional change there have to be referenda in the following countries: Australia, Jamaica, the Bahamas, Grenada, St Lucia, St Vincent and the Grenadines, Antigua, Barbados and St Kitts and Nevis. Could he confirm that the Library is correct on these matters and, again, how the timing might take place?

[Lord Elton]

My Lords, I think that that falls outside the terms of the amendment. If I could return to my noble friend’s question, surely the answer to his worry is quite simple: at the end of line 31, insert the words, “subject to approval by both Houses”.

[Lord Forsyth of Drumlean]

My Lords, I was quite struck by an argument that my noble and learned friend used in an earlier amendment when he chided me, in arguing that it was important that Parliament was able to take account of the arguments of other parliaments, and suggested that I might be presenting this Parliament as dictating—as opposed to the Executive; it is okay for Ministers to decide things over lunch, but it would be dictating if Parliament made decisions. I see that he has a point there; if we had brought this legislation through both Houses, there might be a feeling in the other realms that we had it all cut and dried.

I have been reflecting on that in a humble way, and have been so persuaded by my noble and learned friend’s argument that I think that the noble Lord, Lord Stevenson, has got it 100% right. If, as my noble friend Lord Elton has just suggested, we were to amend the commencement provision to require approval by both Houses after the other realms had considered these matters, then we would have an opportunity to demonstrate to all those other realms how we were taking account of the views not just of their Ministers but of their parliamentarians. This proposal is actually a clever and ingenious way of delivering what the Minister himself said was appropriate only a few moments ago.

[Lord Northbrook]

My Lords, my queries actually applied to Amendment 17, which I think is grouped with this one.

[Lord True]

My Lords, what has been said about the Deputy Prime Minister, for whom I share respect, is valid: specifying that particular Minister is a slightly questionable way of proceeding. Will my noble and learned friend confirm that it is not part of the Perth agreement that the Deputy Prime Minister should be personally responsible, so that we can look at that matter at a later stage?

To be fair to the Deputy Prime Minister, he has taken a major part in pushing this forward, and I think that that is acknowledged, but we must not be seen to be getting into a position where a young couple whose child is to be born are exploited in any way politically. We do not want grand press conferences by any particular Minister saying, “This is all happening, if this baby is a girl, because of what I have done”, and so on. I am sure that the Deputy Prime Minister would not fall into that temptation, but perhaps if Parliament, in its wisdom, slightly depersonalised the amendment on Report, as my noble friend Lord Trefgarne proposes, there might be wisdom in that.

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[Lord Wallace of Tankerness]

My Lords, I repeat that I have not heard about any referendums. The Council of Australian Governments is currently considering the means by which Australia will implement the changes to the laws of succession. It is quite properly a matter for each realm to determine for itself how it should do this. I will try to update the House on these matters as best I can.

[Lord Northbrook]

Under Section 28 of the Constitution Act in Australia, the proposed law should be submitted in each state and territory to the electors qualified to vote for election of members in the House of Representatives.

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Moved by

[Lord Northbrook]

18: The Schedule, page 3, leave out lines 3 to 9

[Lord Northbrook]

My Lords, we now move to the schedule to the Bill and another history lesson—the arcane matter of the Treason Act 1351, which most noble Lords will probably be surprised is still in existence.

One crime of treason that still exists is where a person owing allegiance to the Crown rapes either the King’s wife, the eldest daughter—if unmarried—or the wife of the eldest son and heir, who, in old French is,

“la compaigne leisne fitz & heir”.

In the past, such a person would be hung, drawn and quartered. Later, that was replaced by the death penalty, and now, following the abolition of the death penalty, the sentence would be life imprisonment. However, this crime has had no precedent in 660 years. Some people believe that two of Henry VIII’s wives, Anne Boleyn and Catherine Howard, were executed under this Act. They were alleged to have had sex with others, but the word “violer” was used, and it was likely that they were not executed under this Act but under separate treason legislation at the time.

There has therefore been no precedent after 660 years, but the amendment seeks to amend the wording of the Treason Act 1351 to,

“eldest son if the heir”.

The Minister has said that the Bill is not a vehicle for UK-specific policy. However, Graham McBain, the eminent lawyer, believes that it is ridiculous to change a law that has no force anyway in the relevant Commonwealth countries. It has not been used in the UK for 660 years and my view is reinforced by a royal commission report of 1878 and a Law Commission report of 1972. The consequential amendment should therefore be deleted from the schedule. I beg to move.

[Lord Wallace of Tankerness]

My Lords, as my noble friend said, the amendment removes the consequential amendments to the Treason Act 1351, which are necessary to ensure that the Act continues to have effect, given that the eldest son may not be the heir—in other words, if there is an older daughter and heir. I understand why my noble friend wishes to see the repeal of parts of the Treason Act, and he has rightly identified that the purpose of the Bill is not to deal with UK-specific issues.

I am tempted to observe that if all parts of criminal legislation that pass through your Lordships’ House have such a deterrent effect that no one offends against it for 660 years, we would be very satisfied. However, the point is that the purpose is to bring the provisions of the Bill into effect. It is a purely consequential change. However, I take the point made by my noble friend. As he is aware, there is more recent legislation relevant to treason and I have noted that the Law Commission has treason noted as a “simplification/codification project”. It will be interesting to see what recommendations it provides, but I do not think that this is the place to have a more fundamental review of the treason legislation. If, however, this legislation is to be on our statute book, it is important that it is consistent.

[Lord Northbrook]

I am grateful to the Minister for his reply and beg leave to withdraw the amendment.

Amendment 18 withdrawn.

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Moved by

[Lord Northbrook]

23: The Schedule, page 3, leave out lines 19 to 23

[Lord Northbrook]

My Lords, I believe that the consequential amendment in the schedule is unnecessary, as it is already contained in Section 12 of the Roman Catholic Relief Act 1829. I was not sure whether that should be repealed and am a little confused in this area.

[Lord Wallace of Tankerness]

My noble friend’s amendment removes the consequential amendments to the Regency Act, which are necessary to ensure that a person who has married without consent, and therefore loses their place in the line of succession, is also disqualified from being regent. I can assure my noble friend that this consequential amendment is necessary to harmonise the legislation, but also that there is no mistake in not going further and providing for a non-Protestant regent. This takes us back to an earlier debate, because in the sovereign’s absence, the regent undertakes duties related to the sovereign’s position as Supreme Governor of the Church of England and must therefore be a Protestant. That is what underlies this: it is to ensure that there is consistency, given the provisions of this Bill. I therefore invite my noble friend to withdraw his amendment.

[Lord Northbrook]

I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.

Amendment 23 withdrawn.