Succession to the Crown Bill

Lord True Excerpts

Wednesday 13th March 2013 Lords Chamber

Moved by

[Lord True]

1: After Clause 1, insert the following new Clause—
“Royal marriages: heirs of the body
(1) A marriage is a Royal Marriage for the purposes of establishing the claim of any person to succeed to the Crown as heir to the body if that Marriage is a marriage between a man and a woman.
(2) A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage.
(3) This section does not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply.”

[Lord True]

My Lords, as this amendment was on the Marshalled List in Committee I can be brief, because I set out the detailed points then. However, I repeat that I do not make these points in relation to the Marriage (Same Sex Couples) Bill and would deplore any attempt to obstruct that Bill by invocation of any issue involving the Crown. I believe that that would be a dereliction of Parliament’s duty.

My concern arises from the security of the 17th century term “heir of the body”, the governing definition for the right to succession, as it might be constructively tested in the courts in modern conditions: namely, the emerging legislation for same-sex marriage and the techniques of surrogate childbirth. On the first, it will clearly be lawful for a monarch or an existing heir of the body to enter into a same-sex marriage when that Act becomes law. After all, one hesitates to imagine the circumstances in which either Clause 3(3) of this Bill were used to frustrate an intended same-sex marriage —a novel interference with rights, as others have pointed out—thereby denying that person succession to the Throne, or indeed where there was no intervention and the marriage was accepted in some of the realms and not others.

In such circumstances, the then Prime Minister would find himself in the uncomfortable position of Lord Salisbury in 1890, when Queen Victoria suddenly became enthusiastic about a possible Catholic marriage for the second in line to the Throne. I do not want to take this issue further; I simply lay on the record the potential for conflict.

However, I do want to pursue the issue that follows inevitably from the possibility of a lawful same-sex marriage. From that, and indeed from the position of a royal couple who cannot conceive a child, there follows the question of whether a child could be argued, in the 17th-century language, to be an heir of the body. I pointed out in Committee that the relevant statute refers to an heir of the body being defined from one person, not from both, in a couple.

In Committee and in a most courteous letter to me, my noble and learned friend Lord Wallace, whom I thank for his handling of the Bill, which has been outstanding, said:

“Only a natural-born child of a husband and wife can succeed to the Throne”.—[Official Report, 28/2/13; col. 1217.]

If that is so, and it has always been understood to be the position, those words would also exclude any claim to becoming a monarch made in the future by a child born of a Queen—an heir of the body of a Queen—who was not engendered by the sperm of a consort, even though that would-be heir might have been from an egg of the Queen, carried by the Queen and born of the body of the Queen in a lawful same-sex marriage. We all agree that that is the common law. I simply ask whether the common law is proof against any claim to a right that might be entertained in future, either in the European Court of Human Rights or anywhere else. It need not arise directly in the case of an existing heir but in a less proximate person, who then, by accident, became the heir to the Throne.

In his letter to me, my noble and learned friend said that the European Court of Human Rights would not entertain such a claim because the right to succeed is not a family right, a property right or a civil right. Let us hope that that is so, although it is territory into which I am not qualified to go. He further argues, however, by citing to me the Human Fertilisation and Embryology Act 2005, that an heir of a Queen’s body alone could not succeed. I raised this in Committee and referred to it as being potentially less than conclusive as a defence of the definition of “heir of the body”, given the nature of the drafting of the statute.

The relevant section refers to,

“any dignity or title of honour”.

The words “of honour” were left out in my noble friend’s letter, although I think they are significant as, by my interpretation, honour is surely something that flows from the Crown. My noble and learned friend also argues that a lesser dignity must surely encompass a greater dignity. Again, I am not qualified to answer that question, but clearly removal of any doubt as to whether the Crown is encompassed in that 2005 Act would simply solve the matter. It would debar an heir of the Queen’s body who was not the genetic heir of the monarch and his or her consort in whatever form of marriage.

Amendment 9 in the name of my noble friend Lord Elton, which I support, picks up the point that I made on this in Committee and suggests a simple amendment to the Human Fertilisation and Embryology Act. It would not offend against the Perth agreement, as it simply clarifies beyond doubt what the Government and most of us in this House believe to be the law, and it fireproofs it against attack.

It may be that these occasions seem remote but, as history shows, nothing is ever certain. In Committee, I raised the d’Este case—a challenge for legitimacy by the son of Queen Victoria’s uncle, the Duke of Sussex—as an example of a would-be royal heir having recourse to the law. Although my noble friend argued that he did not appeal to the courts, he did appeal to your Lordships’ Committee for Privileges, which was, and still is, the appropriate place for the test of a peerage.

My noble and learned friend, in his letter, says that Sir Augustus did not challenge the legitimacy of the Royal Marriages Act. That is technically correct, but he was arguing that his parents’ marriage, and therefore his right to succession, was valid on other grounds in that the Royal Marriages Act did not apply. It would be a parallel case for a future claimant to go the courts here or abroad to argue that the Human Fertilisation and Embryology Act did not rule out his or her legitimate claim.

Human nature is such that what happened once, however unlikely it may seem, might happen again. Given that it is the duty of Parliament to relieve the monarchy of any potential controversy, this matter could and should be put beyond doubt. I believe that my noble and learned friend has offered a simple way to do that. While I shall not in any circumstances be pressing my amendment to a Division—I never intended to do so—I support my noble and learned friend in seeking to clarify the 2005 Act beyond all doubt. If it is not appropriate to do it in this Bill—I have heard that argument from the Front Bench—I hope that this potential loophole can quietly and efficiently be closed some time in the future. I beg to move.

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[Lord Wallace of Tankerness]

Without a lot of thought, I am not sure that I want to embrace that particular analogy. The point I was seeking to make was that if the transmission of a title of the peerage is not affected by the developments that appear in the legislation, a fortiori nor should the succession to the Crown be affected. It is obviously far more significant—I am searching for the right adjective—and of far greater importance than the transmission of a title. Therefore, our belief is that that would not be affected and that in this case the lesser must include the greater.

I have also indicated that with regard to the heirs of the body, it is the position, which my noble friend Lord True accepted, that only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear as a matter of common law. He then went on, as my noble friend has done, to raise more recent statutes. However, as I have indicated, my noble friend Lord Jopling raised an important point about where the child is the natural child of the mother and father. I want to reflect on that; it is only proper to do so. I shall certainly advise and write to my noble friend, and copy the letter to others who have taken part in this debate. On that basis, I invite my noble friends not to press their amendments.

[Lord True]

My Lords, I thank my noble and learned friend and all those who have contributed to this short debate. I fully accept the comments made on subsection (3) of the new clause proposed by my amendment.

As I said at the outset, I do intend to press this matter, although I remain troubled even after what my noble and learned friend has said. I make it clear to him that, although I accept his argument that a marriage is a man and a woman and natural-born child thereof as a matter of common law, my concern arises that, as the law may evolve, that understanding may be challenged. I hoped and thought that I had made that clear to your Lordships. Once same-sex marriage becomes part of the settled life of our kingdom, the law will inevitably evolve in response to that reality. A birth of this kind would not be open to a monarch who was in a same-sex marriage. The question would therefore arise about whether such a monarch could have a legitimate heir of the body.

This may seem fanciful to some; it may seem long in the future. However, I believe that Parliament should reflect on the points made in this debate—I was grateful to hear my noble and learned friend say that he would do so—including on the very important point raised by my noble friend Lord Jopling.

The position as I understand it as a layman is that there are certain defences against a potential claim. One is the common law, which may or may not evolve and which may or may not be challenged in the European courts. I hear what my noble and learned friend said, although I have heard that said about many other things which have come to be challenged in the European courts. Furthermore, as I said, the position may not be challenged absolutely on the question at the moment of succession; it could be a matter that arises within the Royal Family. A right is established, and then a right of family and right of property, and then, by accident, that person at a later stage becomes the heir to the Throne. I remain a little concerned as to whether that is a defence.

I heard what my noble and learned friend said about the Human Fertilisation and Embryology Act. I was extremely grateful for the assurances that he gave and the promise to look at it further. The Crown to my mind is something sui generis; the law of the Crown is something separate. It seems to me, as a humble layman construing that reference to dignity and titles of honour, that that was not intended to refer to the Crown.

Therefore, the question potentially lies open and I submit with respect to your Lordships that, at some stage in the future, the matter should be closed. I do not intend to press my amendment, but I shall watch with interest what my noble friend Lord Elton may do at a later stage. However, I hope that, at some point, any scintilla of uncertainty—and I believe that there is uncertainty—will be removed. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Lord Mancroft]

My Lords, I am delighted to support my noble friend’s amendment. I start by saying to my noble friend Lord Hamilton that I have not always shared flats with people who are noble and certainly not always with my friends, but that is slightly beside the point. When legislating, we should always adopt the precautionary principle. The amendment before us is not a matter of principle; the principle is in the Bill: that the sovereign should retain consent. The amendment is merely about the practicality of numbers.

My noble friend in moving the amendment talked a bit about the past, about Queen Victoria’s family and George III’s family. I have a faint connection with a 20th-century royal family which, like many of them, no longer has a kingdom. I happen to know that there was some unhappiness in that family and did some research to look at it.

Between 1933 and 1994, which is 61 years and the length of the current sovereign’s reign, there were three generations and three successions in the German royal family, but, during that time, 17 individuals were removed from the line of succession for marital reasons and, in that, seven marriages were removed from the list. They are the only ones whom you can see by doing a little bit of research. Those 17 individuals all had children and grandchildren who would have been affected. So that is an incredibly short period of time and an enormous change, mostly for religious reasons, because that family, too, had difficulties over Catholicism and Protestantism.

It is worth remembering that when this Bill was mooted and was in the newspapers, everybody drew attention to the fact that if it had been passed during Queen Victoria’s reign, her eldest child, Princess Vicky, would have become Queen of England and the Kaiser, whom she married, her consort. The Kaiser would have been King of England and emperor of Germany. The family that I have been talking about would have been our Royal Family in this generation, with their 17 individuals and seven marriages moving on and off the list of six.

There are indeed differences, as my noble friend said, between the 18th, 19th and 20th centuries. There has of course been a decrease in mortality, particularly infant mortality—thank God that we have far less of that than they did in those days. However, we have an increase in marriages. A friend of my father once asked him what my sisters did. He said, “They marry, long and hard and often”. Quite a lot of people do that in the 21st century. More and more people have more and more marriages. One of the princes in the German royal family, Crown Prince Wilhelm, an eldest son, was married four times and had goodness knows how many children. That is not very long ago. I hope, and we all pray, that there will not be tragedies in the Royal Family—but there have been. We all know what happened to Lord Mountbatten and his family, not far from the sovereign. We hope that that will not happen, nor that it will be illness or death, but, undoubtedly, there are changes in families. Those 17 individuals were not all direct father-son-grandson in 60 years; many of them were siblings, and those siblings had children and grandchildren.

No one suggests that we go back to the idea of all the descendants of King George II, hundreds of people, having to get their marriages approved, but, under the precautionary principle on which we legislate so often, six seems rather a small number.

[Lord True]

My Lords, I have my name on this amendment, which I support strongly. When I intervened in Committee, I pointed out rather flippantly that if this provision goes through and the child that we expect is born, the Deputy Prime Minister will have to explain to one daughter of the Duke of York why she has to ask permission but not the other. That explains one of the many illogicalities which might arise from the number six.

When one legislates, one should go with the grain of what the public perceive to be reasonable. Why did we ever have this sort of legislation in the first place? It was because the then monarch was concerned about the impact on the image on the Royal Family of marriages which were being undertaken within the Royal Family. He cast the legislation wide because he had a wide family; indeed, it was not his children’s marriages that originally concerned him, hence it was thrown back to King George of the earlier generation. I am pleased to say that our Royal Family is not viewed in the same way as was the Royal Family in the 18th century.

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[Lord Wallace of Tankerness]

I hear what my noble friend says, and he makes that point well. It is, indeed, as I and the noble Baroness indicated, an additional requirement and impinges on the lives of individuals. The Bill is trying to seek that balance. It is not a question to which there is one, and only one, right answer. As the noble Lord, Lord Deben, said, it is a matter of judgment. While my right honourable friend the Deputy Prime Minister would no doubt love to take credit for everything that has been put into the Bill—he has ministerial responsibility for constitutional matters and this legislation—I pay tribute to my right honourable friend the Prime Minister who, like his predecessor, sought to get agreement with the other realms and was party to the announcement of the agreement that was made at Perth. The noble Baroness, Lady Hayter, rightly says that this was not part of the Perth agreement, but it was flagged up at the Heads of Government conference in Perth that we would be seeking changes to the Royal Marriages Act 1772. That was followed by Prime Ministerial correspondence, on which agreement was reached on the number six.

My noble friend Lord Lang referred to a letter to the noble Lord, Lord Trefgarne, in which I said that procedural matters would not require the consent of all the other realms. Indeed, there are procedural issues in Clause 3 as to how, for example, the consent has been obtained and signified. However, substantive matters on the succession to the Crown—to which I referred in the debate on the previous amendment and which get into the spirit of the preamble to the Statute of Westminster Act 1931—would require the agreement of the other realms. This impinges on the succession to the Crown. Indeed, the New Zealand legislation, of which I have a copy somewhere here, specifically makes provision for six with regard to those who would require the consent of the sovereign to marry.

The noble and learned Baroness, Lady Butler-Sloss, asked about civil partnerships. Civil partnerships do not require monarchical consent, as a civil partner does not necessarily assume the public role expected of a spouse as sovereign. She also raised same-sex couples, which came up in an earlier amendment moved by my noble friend Lord True. The Government believe that marriage as stated in Clause 3 of the Succession to the Crown Bill means marriage as defined by the jurisdiction in which it takes place. If we take this away from the issue of same sex—to take away from, as my noble friend Lord True said in moving his amendment, the controversy that might surround that—different jurisdictions very often have different rules on marriage. As a simple example, the age for marriage without parental consent was different from that in England. If it was a legitimate marriage in the law of Scotland, it would be recognised as a marriage, albeit that it would not necessarily have been a legal marriage under the law of England.

[Lord True]

Before my noble friend leaves that important point—and I accept what he says about civil partnerships —is he saying that the Government are knowingly legislating for a position where the monarch’s Ministers in one country may advise that a same-sex marriage should be disqualified from the succession to the Throne, but in another of the Queen’s dominions, the Crown’s Minister will give opposite advice? Is that what the Government are recommending to Parliament?

[Lord Wallace of Tankerness]

My Lords, that is not what I am saying. It depends on the jurisdiction of the place where the marriage is contracted. I believe I am right in saying that under the law of Canada, same-sex marriage is legitimate. If, therefore, hypothetically there was a same-sex marriage by someone perhaps well down the line of succession to the throne in Canada as of today, and that was lawful under the law of Canada, that would be a marriage. It hat is not a question of Canadian Ministers giving consent, which might be different because the law in the United Kingdom is different. There might even be different laws in the near future between Scotland and England, depending on the timing of legislation. It is not a question of Ministers giving consent; it is the actual law that is in place in a particular jurisdiction at a particular time.

It is a matter of judgment. I say that quite frankly to the noble Lord, Lord Deben. The Government believe that six is the appropriate number. That is what history suggests is necessary. No more than three have been required in the last 240 years, and there is some added leeway. As I said, with any legal restriction, if we impose a legal restriction we should limit it as far as possible. While I fully recognise the strength of the arguments that have been put forward, I have not heard sufficiently strong arguments that we should extend this legal restriction more than we believe is necessary to take account of the historical number of places to get to the throne, and double it up for that matter. I know how strongly my noble friend feels about this, because we have discussed it in the past. If he feels that it would be helpful to have further discussion on it, I am more than open to that suggestion. In the mean time, however, I invite him to withdraw his amendment.