Succession to the Crown Bill

Debate between Lord True and Lord Wallace of Tankerness

Wednesday 13th March 2013 Lords Chamber

[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.

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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.

Succession to the Crown Bill

Debate between Lord True and Lord Wallace of Tankerness

Thursday 28th February 2013 Lords Chamber

[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.

[Lord True]

My Lords, the problem was articulated at Second Reading, and I do not wish to extend this debate too much. The problem ultimately will be a human problem, as it was in 1936. That human problem, if it arises, will concern a child who is an heir, either the heir presumptive or a child who by some accident becomes the next in line, a popular expectant heir to the throne, who, whether from birth or by proximity to the Catholic faith when being brought up, believes that they cannot take up the duties of a monarch without the support of the church that they love. That might well be the Catholic Church.

The problem with the halfway house that we have before us is that it opens the door to such a crisis without resolving all the complexities that my noble friend quite rightly said lie at the end of that path. That human drama will be played out in the 21st century through all eyes of the media and television as almost a piece of spectacle—it was in 1936. That is the danger that many Peers sought to point out at Second Reading. I could not support the amendment of my noble friend Lord Cormack; equally, I think that the amendment of my noble friend Lord Trefgarne is flawed, because I agree with my noble and learned friend on the Front Bench that there are things that a regent could not undertake.

There is a danger in the lack of clarity inherent in this Bill, for well meaning reasons, opening a door to a place we know not where. Not all discrimination in this matter lies on the Anglican side—I speak as one who lives the most happy of mixed marriages but who is never permitted to go to the altar table to share communion with my wife. Let us go forward with caution. It is not right for the Government so readily to detach the opening of the door by the legitimisation of a marriage from a proper and serious contemplation of the potential consequences if a human drama comes to be played out when an heir believes that they can proceed only with the support of the Catholic faith, whether they professed it previously or profess it at the time when they become heir to the Throne.

[Lord Wallace of Tankerness]

My Lords, before my noble friend Lord Trefgarne replies, perhaps I may pick up on a point where I do not believe that the argument of my noble friend Lord True holds. Under the law as it stands—and there is no proposal here, nor do the Government have any proposals to change the law—the sovereign may not be, nor have been, a Roman Catholic. Therefore, the situation which my noble friend Lord True suggested, where the sovereign comes to the Throne having to agonise as to whether to renounce the Catholic religion, just would not arise, because, having been a Catholic, he or she would not be eligible to ascend to the Throne.

I entirely concur with my noble friend’s opening remarks: these are very much human matters at the end of the day. There is a human dimension to it, and that is why, in response to the earlier debate, I sought to reflect the discussions which I had with representatives of the Bishops’ Conference of England and Wales so that this is looked at at a pastoral, human level, which seeks to reflect the importance of the union of a partnership and the indissolubility of marriage. It is against that background that decisions should be made and advice given with regard to the upbringing of a family. I accept that there is a human dimension to this, but I should perhaps clarify that the dilemma that my noble friend was suggesting cannot occur because the position is that the sovereign must not be, or have been, a member of the Roman Catholic Church.

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[Lord Trefgarne]

My Lords, I hope that between now and the next stage the noble and learned Lord may on reflection be able to offer a more forthright assurance than that which he has been able to give so far, if I may say so. The fact is that the process for judicial review in this country is a comparatively new one. It has only been going for the last 15 or 20 years. Therefore the fact of there being no precedent is not much of a comfort to the noble and learned Lord, if I may say so. I would be grateful if he would consider this further before the next stage and perhaps take into account the case referred to by my noble friend Lord True.

[Lord Wallace of Tankerness]

I shall certainly reflect on it further. It will not come as a surprise to my noble friend that this has already been the subject of some reflection. However, if he indeed wishes to return to this at Report, we will do so. To take up the point made by my noble friend Lord True about the Sussex peerage case, my understanding is that this case was not about whether consent had been refused unlawfully. I think the issue was that consent had not actually been sought.

[Lord True]

I do not wish to detain the House, but I think the contention of the gentleman concerned was that the marriage had been celebrated outside the country and was therefore outside the jurisdiction. That case was not caught by a potential forfeit.