Succession to the Crown Bill

Lord Trefgarne Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Maclennan of Rogart]

My Lords, I wish to begin by expressing admiration for the attitude that has been taken by the 16 realms towards the appropriate changes to the succession to the Crown. It is almost beyond debate that the gender disqualification should be removed in the 21st century. I do not wish to dwell on the positive aspects of the Bill, which are strong and which I think this House would wish to support, but I would rather wish to draw my noble friend’s attention to the unresolved issue of the religion of the monarch.

Some years ago, shortly after I entered this House, I proposed a Motion that was widely, although not universally, supported, calling for the disestablishment of the Church. As we live in a united kingdom, it is rather strange to have two established Churches. My father was Lord High Commissioner of the Church of Scotland and was the Queen’s representative there. She was potentially wearing two hats: one as the head of the Church of Scotland and one as the Supreme Governor of the Church of England.

[Lord Trefgarne]

Is the Church of Scotland an established Church? I think not.

[Lord Maclennan of Rogart]

Yes, it is an established Church. It seems to me that the time has come to recognise that the essence of Christianity is tolerance and to love thy neighbour as thyself. That cannot be entirely consistent with an exclusive attitude towards other religions. This is not a matter that presses down on our constitution at this time, but it is a matter of growing concern that we observe even in Europe rulings made by Governments about other religions, about what clothes they may wear, what turrets they may have on their places of worship. Those should not be matters for the state, they should be decided by the churches themselves, as long as they do not interfere with the freedom of worship of the individual.

I am happy that a move has been made, with the agreement of 15 other realms of the Commonwealth, to enable the heir to the Throne to marry a Roman Catholic, but, as the noble Lord, Lord Lang said, that reveals problems that will almost certainly arise in future. It is not clear what the attitude of the Roman Catholic Church is to the education of the children of Roman Catholics. In so far as statements have been made by the Church itself, as opposed to those made by the Deputy Prime Minister, it appears that bringing up the children of a Roman Catholic in the Roman Catholic religion is a requirement. I am bound to say that that creates a degree of instability to which the noble Lord, Lord Lang, was right to point.

At this time in our country, we ought to recognise that a Buddhist or a Quaker could succeed to the Throne, but that would not put any kind of threat on the stability of our society. As the noble Lord, Lord Lang said, the history of the monarchy has been linked to the established Church. I am sorry to say that I think that it has been a regrettable history. It has led to persecution of people for their individual faiths. It has led, for example, to our greatest playwright, William Shakespeare, concealing his religion and having to live under cover. It has led, in the reign of the first Queen Elizabeth, to the massacre of Roman Catholics as a matter of system.

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[Lord Trefgarne]

My Lords, in rising to intervene in this debate, let me start by saying that a powerful case can be made for the line of descent for the Crown being through the sovereign’s eldest child rather than the eldest son in the first instance. That said, I am not sure that the Government have really considered all the implications of this proposal. For example—the Minister referred to this—most hereditary peerages descend through the eldest male heir, where there is one, or sideways if there is not. Against that background, what will happen in respect of the hereditary peerages held by the sovereign other than the Crown itself? For example, His Royal Highness the Prince of Wales is also the Earl of Chester, the Duke of Cornwall, the Duke of Rothesay, the Earl of Carrick and Baron Renfrew. What happens to them? They are all hereditary titles. They will also presumably descend with the Crown. Does that mean that they will now go through the female line as the Crown will? I hope my noble friend will be able to explain that.

His Royal Highness Prince Philip the Duke of Edinburgh holds at least two other hereditary titles: the Barony of Greenwich and the Earldom of Merioneth. These, likewise, are hereditary titles which will presumably one day be inherited by His Royal Highness the Prince of Wales. What will happen to those titles thereafter if there is a female heir in due course?

If the principle of descent through the first-born child rather than the eldest son is important, then surely the same arguments apply in respect of the hereditary peerage. While a very few peerages—mostly Scottish ones—can and do descend through the female line, most do not, but the principle is the same and ought to be applied to hereditary peerages as to the sovereign. I hope the Minister will be able to explain in more detail why this Bill does not deal with hereditary peerages. I recognise that he touched on this in his opening remarks, but this matter cannot be left unaddressed.

Clause 2 removes disqualification from succeeding to the Crown arising from marriage to a Roman Catholic. Again, I am not persuaded that the Government considered all the implications of this apparently simple change. Is it not the case that when a Protestant marries a Roman Catholic—the noble Lord, Lord Luce, referred to this—the couple are required by Roman Catholic law to bring up their children as Roman Catholics, as has been mentioned already? The pressure upon people in a two-faith marriage to bring up their children as Catholics is pretty strong. I know that from within my own experience. Thus it follows, it would seem to me, that in certain circumstances the heir to the Throne and future Supreme Governor of the Church of England could be a Roman Catholic. Although it is apparently the case that at one point in the Middle Ages a former Archbishop of Canterbury was appointed to the Holy See, that is hardly a suitable precedent.

Clause 3 relates to the sovereign’s consent in respect of certain royal marriages. This provision apparently replaces earlier provisions relating to royal marriages, mostly in the Royal Marriages Act 1772, which is to be repealed. Has any consent required by the 1772 Act ever been refused, and if so, what were the consequences? Under the new arrangement, the consent, if granted, must be confirmed as provided in Clause 3(2). Could the consents required under Clause 3, or more likely refusal of consent, be challenged by, for example, judicial review? Such a consent once granted cannot, I suspect, be so challenged, but perhaps a refusal could be. I hope that my noble friend can offer some guidance on that.

Finally, Clause 5 relates to the commencement and Short Title. This is an important constitutional measure that changes the law going back many centuries. For such a measure to come into force purely as and when the Lord President may decide is, to say the least, unusual. Nobody is a greater admirer of my right honourable friend the Deputy Prime Minister than I am—most of the time, anyway—but such an important constitutional measure should surely come into force when Parliament decides, not on the whim of a single Minister, no matter how senior. Should the Bill not come into force on Royal Assent? I appreciate that that cannot happen until all the Commonwealth nations have given their formal assent, which includes parliamentary approval in most cases, so perhaps some time ought to be allowed for that, but I do not think it is right that it should simply be decided upon by my right honourable friend the Deputy Prime Minister.

I have to confess that I am not overly enamoured by the Bill. It seems that much of it has not been as carefully thought through as it should have been. I referred to the Bill coming into force. I think there ought to be a sunset clause to the Bill so that if some of the Commonwealth nations do not decide within a reasonable period that they wish to be guided by the provisions of the Bill, it ought not to come into force. You surely cannot have a position where some nations have agreed to it and some have not.

I am not opposing the first principles of the Bill, but I believe that a number of its important features need careful consideration and, no doubt, amendment in Committee.

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[Lord Trefgarne]

Perhaps I should pick up the point that my noble and learned friend made about the princedom of Wales. Would it be in order for the sovereign to make their eldest daughter, the heir apparent, the Princess of Wales?

[Lord Wallace of Tankerness]

That would be a matter for the sovereign, just as the present Prince of Wales did not automatically become so on the accession of the Queen. I think he was created Prince of Wales in 1958 and that his investiture was some 11 years later. It would be a matter for Her Majesty and I do not think we should be presuming or prejudging this—and in future it would not necessarily be Her Majesty. This is obviously not going to happen at the moment, so it would be a matter not for our present Queen but for our future sovereign to determine.

With regard to the royal titles in Scotland, a number of contributors, not least my noble friend Lord Trefgarne, pointed out that the peerage rules in Scotland are somewhat more generous to women, in some cases anyway. It is certainly our view that in the event of an elder sister becoming heir apparent, the Scottish titles currently held by the Prince of Wales—namely, the Prince and Great Steward of Scotland, the Duke of Rothesay, the Earl of Carrick, Lord of the Isles and Baron of Renfrew—can pass automatically to a female heir apparent. These titles have always hung together and the removal of male bias in the line of succession could therefore not result in the detachment of these titles from the Crown. We have consulted the Court of the Lord Lyon, who is the official heraldry officer for Scotland, on this matter.

My noble friend also asked about the Duke of Edinburgh. The Duke of Edinburgh has a normal remainder to the heirs male of his body, but at the time of the marriage of the Earl of Wessex, it was announced that the Earl would eventually receive the title of Duke of Edinburgh. It is my understanding that there would probably have to be a creation of that; it would not automatically be inherited from his father. I say to my noble friend Lord Carlile that I will investigate further and write to him on the earldom of Merioneth.

This issue also gives rise to the question of hereditary peerages and a number of noble Lords contributed on this, some expressing concern and some hoping that this might indeed open the door to a change in the law. That just underlines the fact that it is not appropriate for this Bill. It goes much beyond the scope of it, although I do not for a moment minimise the importance of the issue. It would certainly not just be the Constitution Committee criticising us if we were suddenly to introduce in this Bill measures that were going to change the order of succession to peerages. My noble friend Lord Lucas reminded us, interestingly, that he inherited from his grandmother and mother but, as he pointed out, hereditary titles can very often go with financial interests and estates. These would not be issues to enter into lightly. As I indicated, they go beyond the scope of this Bill. I also remind your Lordships that even without this Bill, the rules of succession to the Crown already differ in most cases from the rules of succession to the peerage.

Clause 2 possibly generated the most concern and interest, not least because of what the implications would be if there is a marriage between an Anglican and a Roman Catholic. At the outset, let me say that it is important that we remove this element of discrimination, as a number of noble Lords who contributed to the debate made clear. This has been welcomed by both the Church of England and the Roman Catholic Church. I was particularly struck by the contribution of the noble Lord, Lord Janvrin, on the importance of the heir to the Throne being able to have a wider choice as to who may be their spouse. There was a sense of that around your Lordships’ House when he mentioned it. Given the particular challenges that go with the monarchy, I think that the noble Lord referred to the importance of lifetime love and support. That was a very poignant but relevant contribution to our debate.

As I indicated in my opening remarks, it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith. Catholic teaching is clear and perhaps more practical than has sometimes been suggested. The guidance is set out in Matrimonia Mixta, an apostolic letter from Pope Paul VI in 1970, and Pontificium Consilium ad Christianorum Unitatem Fovendam: Directory for the Application of Principles and Norms on Ecumenism, published in 1993. The guidance requires the Catholic partner in a mixed marriage to do their best to have the children raised as Catholics but if, as I indicated earlier, there is a just and reasonable cause which would qualify, such as the protection of the place of the Established Church, under those circumstances the local bishop can grant permission for the marriage. That moves us onto another issue, which I will come on to.

I also indicated that the Archbishop of Westminster has welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic. Indeed, in doing so, he recognised the importance of the position of the Established Church in protecting and fostering the role of faith in our society today. The noble Lords, Lord Luce and Lord Janvrin, echoed by the noble Lord, Lord Thomas of Swynnerton, asked whether it would be appropriate to have further discussions with the Roman Catholic Church. It is clear that there have already been discussions prior to this Bill but I will certainly try to ensure that officials meet representatives of the Catholic Church—indeed, I would be willing to meet them myself. I could not honestly predict the outcome but that suggestion seemed to command some support around the House. I would be willing to see whether that might produce anything that we could report back to the House at a future stage of our proceedings.

My noble friend Lord Lang of Monkton referred to my right honourable friend the Deputy Prime Minister regarding taking the matter to the Vatican. At Second Reading in the House of Commons, my right honourable friend said:

“I want to be clear that there is absolutely no prospect of our entering into discussions with the Vatican in order to bring this Bill into effect”.—[Official Report, Commons, 22/1/13; col. 215.]

The establishment of the Church of England has been a recurring matter that was raised in our debate. My noble friend Lord Maclennan and the noble Lord, Lord Dubs, said that it was an appropriate occasion to give that issue an airing. My noble friend Lord Deben indicated, with considerable passion, how he thinks that trying to address one anomaly while leaving another open is not acceptable. My noble friend Lord Astor raised this issue. I will come back to the Church of Scotland in a moment but my noble friend Lord Trefgarne got it right.

I got the impression that my noble friend Lord Lang was concerned that some of the provisions here might lead to disestablishment, whereas other contributors to the debate—indeed, the noble Lord, Lord Stevenson, did so from the Front Bench—were saying that perhaps this should be an incentive to get on and have that debate. Again, this issue goes beyond the Bill. We believe that nothing in the Bill detracts in any way from the sovereign swearing an oath to maintain the Protestant religion. The proposed changes are limited to removing a discriminatory bar on marrying a Roman Catholic. That would not allow a Roman Catholic to accede to the Throne but I suspect that, as the noble Lord, Lord Stevenson, indicated, this debate is not going to go away. However, I do not believe that this Bill is the appropriate place to deal with it.

The issue is that the Act of Settlement and the Accession Declaration Act, which was quoted by my noble friend Lord James, both make clear that the sovereign must be a Protestant, which of course George I was. The position in the Church of Scotland is that it is not an established church as such; the Queen is not the supreme governor of the Church of Scotland. The relationship between church and state is symbolised by the presence of the monarch or her Lord High Commissioner in attendance at the general assembly; indeed, my noble friend Lord Maclennan’s father was Lord High Commissioner, as several Members of your Lordships’ House have been. Although they are invited to address the assembly, they cannot intervene in its business.

As indicated, the oath of accession includes a promise to maintain and preserve the Protestant religion and Presbyterian Government, but the Kirk has not been established by the state—I declare an interest as an elder of the Church of Scotland—and neither the Scottish Parliament nor the Westminster Parliament is involved in Kirk appointments. To that extent, it does not operate as a state church in the way that the Church of England does. I think that it was the noble Lord, Lord Stevenson, who pointed out that in matters of doctrine, government, discipline and worship, the Church of Scotland is free from state interference, operating under a constitution largely contained in articles declaratory that were recognised by Parliament in 1921. So there is quite a significant difference there, but I suspect that this is an issue to which we will return.

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[Lord Wallace of Tankerness]

My Lords, I beg to move that the Bill be committed to a Committee of the Whole House.

[Lord Trefgarne]

My Lords, can I persuade my noble and learned friend not to press this Motion at this moment? I am not remotely trying to obstruct the progress of this measure, but I rather think that the Bill would be better considered in a Select Committee. If my noble and learned friend would be willing to put off pressing this Motion until, say, Monday, that would give us an opportunity to consider the possibility.

[Lord Wallace of Tankerness]

My Lords, we were given notice that my noble friend might raise this matter. We are going to make time available for proper consideration in Committee of the Bill and amendments that will be tabled to it. It has already, as was indicated, gone through the other place with more time allocated to it than proved necessary. As has been said by numerous contributors to the debate, there has been considerable dialogue, negotiation and discussion with the other realms. It has been carefully considered. I hope for and fully expect proper scrutiny when we move into Committee. I will certainly seek to ensure that the time is made available for that to happen.

I recognise the spirit in which my noble friend speaks. We can give the Bill sufficient scrutiny in a normal Committee.