Succession to the Crown Bill

Michael Ellis Excerpts

Monday 28th January 2013 Commons Chamber

[Jacob Rees-Mogg]

It occurs to me that the Leader of the House must have a sense of humour. Today, as I am sure you know, Mr Speaker, is the anniversary of the death of his late Majesty King Henry VIII, so it seems only appropriate that we should be discussing the Succession to the Crown Bill on such an anniversary. After all, King Henry introduced three succession to the Crown Bills, and some of the problems we are dealing with today originate with his reign. I have proposed two further amendments, which you have graciously said, Mr Speaker, we can deal with in the course of our debate on the new clause, and I shall come to them secondarily.

New clause 1 is the crucial part of what I am proposing. It is a development within the context of the Bill to attend not just to one discrimination but to a second that is inherent within the current rules governing the succession. From time immemorial, the succession has gone to the eldest male heir, but since the Act of Settlement 1701 it has had to go to a Protestant. There has been a religious discrimination as well as discrimination on the grounds of sex. My new clause seeks to amend that to allow for anybody of any faith to succeed to the Crown while making provision for the established Church.

Many countries in the world have a Crown that is only temporal; they do not have a Crown that is spiritual as well. The mediaevalists debated at great length where power should rest in those two spheres, and I do not wish to rehearse the schoolmen’s arguments. There are, however, two distinct and separate powers and authorities: the temporal one that deals with the laws we live by and how we should lead our lives in respect of society; and the spiritual one that looks to the higher plane and the greater authority that comes with religious belief and religious conviction.

In our country, those two powers are merged in the Crown. The Crown is both the spiritual head of the Church and the temporal head of the nation for one part—and one part only—of the Crown. On Tuesday last week, on Second Reading and indeed in Committee, we debated whether that was right and how it applied in a more modern age. It is worth looking, as we did last week, at some of the detail. Because the Queen is Supreme Governor of the Church of England, she is or has under her an established Church in Scotland, but she is not formally head of it. She puts in a Lord High Commissioner to represent her at meetings of the General Assembly of the Church of Scotland, but she is not the Supreme Governor of the established Church in Scotland in the way she is Supreme Governor of the Church of England. There is no established Church in Wales; there is no established Church in Northern Ireland. As far as I am aware, there is no established Church in Antigua and Barbuda, in Australia, the Bahamas, Barbados, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New Guinea, St Christopher-Nevis, St Lucia, St Vincent and the Grenadines, the Solomon islands, Tuvalu or in Her Majesty’s other realms and territories. When we deal with one discrimination but not the other, therefore, we leave a discrimination that applies only to a very small part of the totality of the Crown.

[Michael Ellis (Northampton North) (Con)]

Does my hon. Friend agree that a discrimination is inherent, and has been since time immemorial, in relation to the eldest? My hon. Friend refers to a discrimination in relation to the Protestant faith, but is there not also an in-built discrimination against younger male heirs?

[Jacob Rees-Mogg]

Had my hon. Friend not been meeting His Royal Highness the Prince of Wales last Tuesday, he would have heard the debate on an amendment that I tabled to clarify this matter, because the current Bill, rather than maintaining any system of primogeniture, might simply create co-heirs. Of course, the concept of monarchy has an unfairness in it—the very word “monarchy” means that one will rule; it cannot be everybody in the country. However, the reasons for having discrimination on the grounds of faith—in 1688, formalised in the Act of Settlement in 1701—are very different from those that apply today.

Likewise, if you think back to Richard the Lionheart, Mr Speaker, as I am sure you often do, with his fine statue outside the House of Lords, you will acknowledge that it had been necessary since time immemorial to have a king who was able to fight, lead armies in battle and show his great strength, and that was easier for a male than for a female. The last king to lead troops into battle was George II.

Historically, therefore, there may have been reasons for having a religious discrimination, a discrimination on the grounds of sex, and the obvious discrimination within a monarchy of it being rule by one. As the discrimination on the grounds of sex is no longer necessary, or can no longer be argued for logically, nor can exclusions on the grounds of religion.

The reason for the religious bar in the late 17th and early 18th century was the genuine threat perceived by this country from the strong Catholic nations in Europe. In the reign of Elizabeth I, of course, the Spanish had been the threat, but by the reign of Queen Anne, the French were the greater concern. Through the secret treaty of Dover, Louis XIV tried to get Charles II to take a subsidy to establish a standing army that would enforce Catholicism on the nation as part of Louis XIV’s aim to get general European rule. You might be worried, Mr Speaker, about general European rule, but it is not in support of Catholicism.

[Jacob Rees-Mogg]

I am grateful to my hon. Friend for that point, although it is worth bearing in mind that the House was controlled by Tories at the point at which the Act of Settlement was passed, so I am looking to revise a Tory piece of legislation.

The fundamental point is that the reason for the provision on religious discrimination no longer exists in the way that it did in the late 17th and early 18th century.

[Michael Ellis]

I am rather surprised to hear my hon. Friend’s comments, because although I had to be absent from the Chamber during the debate last week, I think I read in the parliamentary record that he had no objection to being called a Papist, despite the antiquity of that term, because he understood that it represented part of this country’s history. Does he depart from that now in saying that the historical aspect of the Protestant ascendancy in this country is not relevant today?

--- Later in debate ---

[Jacob Rees-Mogg]

I thank my hon. Friend for raising that point. I also think that the law should represent the reality. It is inconceivable that if a sovereign of Canada—including, obviously, Quebec—decided to convert to Roman Catholicism, that sovereign would be deposed, thrown out and replaced. I think that even in this country and even with an established Church, we cannot accept the idea that a sovereign on the throne who decided to convert to Rome would be suddenly chucked out of Buckingham palace. When the law has moved away from the reality, and we are amending the law in any event, perhaps it makes sense to carry out a comprehensive reform of the law to make the two match up.

[Michael Ellis]

Is not my hon. Friend’s point further strengthened by the fact that those of other faiths, such as mine—the Jewish faith—are not excluded in the same way?

[Jacob Rees-Mogg]

There is a part of the Act of Settlement that requires the sovereign to be in communion with the Church of England, so I am not absolutely certain that my hon. Friend is correct, but my new clause would get rid of the bar for all religions. This is not simply a Catholic issue. I have concentrated more on the Catholic issue because that was the reasoning behind the Act of Settlement and the reason for its becoming part of our law, and also because clause 2 of the Bill deals with marriage to Catholics. Marriage to Catholics is a specific Catholic exclusion, but communion with the Church of England is the requirement when it comes to inheriting the throne.

Let me explain why I support an established Church. My new clause provides for the maintaining of a Protestant head of the Church of England. That is partly to do with our history and traditions, which we see even on the Mace. It has a cross on its top as a symbol of the shared Christianity that this country has had since its very foundations as a nation, going all the way back to St Augustine coming and converting England and the ultimate joining together of the Crowns. Christianity has run through our history.

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[Jacob Rees-Mogg]

My hon. Friend makes a very good point, and that might have been an amendment worthy of consideration. It is not the amendment I tabled. My amendment sought to maintain the supreme governorship of the Church of England in a regency whenever the sovereign was not in communion with the Anglican Church under the Regency Act 1937, which requires the regent to be a Protestant and to meet the terms of the Act of Settlement. I would prefer to keep things that way because the Crown and the headship of the Church of England could come back together when a future sovereign was an Anglican, and my approach would not permanently separate the two. However, I am grateful to my hon. Friend for bringing forward new thoughts on the matter; one of the reasons why it would have been better to have had a longer time for, and longer gaps in, debating this important subject is because then such ideas could have been discussed.

My new clause is extremely simple. It is a recognition—no matter how much I am sometimes reluctant to recognise it—that the modern world is different from the early 18th century. There may have been many glories in the early 18th century, but one of the glories of this modern age is that we are tolerant—we are tolerant of different religions. We believe that people practising other faiths is something to be welcomed and encouraged, and that has made us a stronger nation rather than a weaker one. Therefore there should no longer be a bar on the grounds of faith in respect of the sovereign, as long as we can make provision for the established Church of England, which there is and which I support.

That circle can be squared by providing for a regency. That relatively simple and straightforward proposal deals with a problem that people have recognised in this country for many decades; we have not suddenly woken up and realised that a non-member of the Church of England cannot become sovereign. Bills have been presented to Parliament to deal with that, and this seems the right time to be doing it, as we are legislating on the Crown succession and we are in discussion with the Commonwealth members who also have the Queen as sovereign to see whether they will agree to it.

[Michael Ellis]

Is it not the case that his holiness the Pope, who wears the triple crown, is also a temporal sovereign? Would it not be a requirement of that office that he be of the Catholic faith? Does that situation have any similarity with the point that my hon. Friend is making?

[Jacob Rees-Mogg]

Much though I admire his late Holiness Pope Pius IX, he was the last Pope to exercise effective temporal power. His Prime Minister was assassinated in Rome, and from that point on, the Papacy’s temporal power in Italy has been restricted to the vicinity of the Holy See—that very small amount of land. Suggesting that we should open up the Holy See to non-Catholics when there are only about 2,000 residents, almost all of whom are in holy orders, is faintly although engagingly absurd.

[Michael Ellis]

It is a point of principle.

[Jacob Rees-Mogg]

The principle is different, although it is worth noting that the only two anointed sovereigns in Christendom are the Pope and the Queen, which says something about their antiquity.

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[Jacob Rees-Mogg]

I am afraid to say to the hon. Gentleman, who I hope is not in that unhappy state, that an excommunicated Catholic would be excluded from succession to the Crown because that person would have been in communion with Rome at some point. It is an absolute. If at any moment in their whole life they were in communion with Rome, they are excluded from the throne, deemed to be dead. That cannot be the intention of the clause that allows a Catholic to marry an heir to the throne. That will simply create confusion and we will not know who the monarch is going to be.

[Michael Ellis]

I think that, in canon law, it may be canon 1125 which refers to best endeavours. Is it not the case that he who brings up a child in the Catholic faith or attempts to do so by using best endeavours is defeated in those endeavours if it be a legal impossibility? So the issue as to the connection of that infant child to the Crown and the Catholicism or otherwise of that infant child is dealt with in that way. Best endeavours cannot be achieved if it is a legal impossibility.

[Jacob Rees-Mogg]

I am sorry to say that my hon. Friend misses the point. It is a question of the succession. It may be that somebody has been brought up as a Catholic who is relatively remote from succeeding to the Crown, but in a “Kind Hearts and Coronets” way suddenly becomes much closer. That person would be excluded, but more importantly, the best efforts issue means that there is a lack of clarity as to whether or not such a child has been excluded.

Are we saying that a Catholic can marry into the Crown but must then immediately say, on the birth of any child, that this child has not been anywhere near a Catholic church? How are we classifying this connection with Rome that in the Act of Settlement is a very broad connection for a very good reason: at that point people were worried about the Old Pretender. They thought that his Catholic upbringing made him a threat from the moment of his birth. That is why it is all-encompassing, and we are now amending the law to allow a Catholic to marry into the throne, without dealing with the technicalities that follow from that.

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[Michael Ellis]

I very much agree with the hon. Gentleman about the obnoxious nature of any legislation, however ancient it may be, that is prejudicial to any religion. Those of my faith and many others are also excluded in the same way, because of that legislation. Why does he think that, whereas other examples of bias towards or prejudice against other religions have been done away with centuries ago, in many cases, or certainly many decades ago, this one remains? Does he think it might be due to the internecine complexity of the issue, rather than any prejudice?

[John McDonnell]

That may well have been the case in the past, but I think we have moved on. When the issue was debated in a different form—I think it was on a private Member’s Bill promoted by Evan Harris—Lord Falconer did the maths, calculated the large number of descendants that could have a claim to the throne and argued that we did not have parliamentary time and that the issue was irrelevant anyway. If we change the proposal on marriage, however, it may soon become very relevant, because we would not want to bar a future monarch from marrying a Catholic, a Jew or a Muslim. I think that that will come on to the agenda very quickly, whereas in the past parliamentary time was not found for it because it was not seen to be relevant.

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[Mr Leigh]

No, I am not a supporter of the Duke of Bavaria.

[Michael Ellis]

My hon. Friend mentioned the Archbishop of Canterbury potentially taking over the position of Supreme Governor of the Church of England, but would that not be rather incongruous? The Archbishop of Canterbury, at least in theory, is appointed by the sovereign. The sovereign would therefore be appointing an archbishop who would then take over their role, as far as the primacy of the Church is concerned.

[Mr Leigh]

This was an idea proffered by my hon. Friend the Member for Beckenham (Bob Stewart), and perhaps it was a mistake for me even to mention it. We are now in danger of dancing on the head of a pin and getting into a level of complexity that is not helping the argument.

--- Later in debate ---

The Bill seeks to extend by law the rights in the Act of Settlement to all heirs of Sophia of Hanover, not just to the boys and men who would succeed under common law principles. By so doing, however, it seeks to create binding rights in law in favour of a very small group of additional potential future beneficiaries among the female heirs of Sophia of Hanover on the basis of birth alone.

[Michael Ellis]

A moment ago, the hon. Gentleman said that the monarchy had done nothing in the past 100 years for the advent of democracy in this country. May I suggest that he is wholly and unavowedly in error and that in fact the monarchy has done much in the last 100 years and more to act as a pillar in the protection of democracy?

[Paul Flynn]

rose—

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[Sir Alan Beith]

Perhaps we should not get into a discussion about precisely how the Queen has dealt with these matters. From my standpoint, I see her as someone who has used her position in the Church of England in a way that is generally beneficial to society, by setting out the importance of spiritual things and laying emphasis—as she did in her most recent Christmas broadcast—on some of the moral and ethical conclusions that one might draw from these things. That is something of a satisfaction to non-conformists, Roman Catholics and members of the Church of Scotland, with which she has a continuing relationship—it is her Church in Scotland. In all those respects she has been exemplary in the way she has used those positions.

However, I turn to amendments 1 and 2, because—

[Michael Ellis]

Will my right hon. Friend give way?

[Sir Alan Beith]

I want to get on to amendments 1 and 2, because I am anxious that we get this right and I am interested in what the Government have to say about them.

It seems to me that the wording in the Act of Settlement might well preclude someone who, let us say, as a teenager or young adult chooses to be in the Church of England rather than the Catholic Church, having had experience of both in their lives. They could be automatically excluded by those features of their early involvement with the Roman Catholic Church that fell within the extended definition in the Act of Settlement of what constitutes having been a Catholic. Unless we deal with that, our legislation will be defective and will fail to fulfil its intended purpose, because at some future date it might exclude someone from being the sovereign even though they were in communion with the Church of England and wanted to uphold the Protestant reformed religion, as the coronation oath requires.

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[Miss Chloe Smith]

I will be equally as brief as the hon. Gentleman. I, too, understand that the effect of his amendment would be to make the gender of any person in the line of succession irrelevant when determining succession to the throne. I put it to him that the Government did not make an omission; the way we set out the Bill was a deliberate choice. His amendment would change the current line of succession. Specifically—I suspect he has this in mind—their Royal Highnesses Prince Andrew and Prince Edward, and their descendants, would move below Her Royal Highness Princess Anne and her descendants. The Government do not believe it is fair or reasonable to alter the legitimate expectations of those currently in line to the throne. The hon. Gentleman’s amendment is a retrospective provision and there would need to be good reason for it.

Commonwealth leaders have agreed to remove the male bias in succession to the Crown for the future. For reasons we have already discussed at length, the Government view that agreement as being important to maintain, and it does not envisage the current order of succession being disturbed. Rather, when new members of the royal family are born they will enter the line of succession without there being any preference for males over females, and I know that the hon. Gentleman shares that latter principle with me.

[Michael Ellis]

Does the Minister agree that not only would it be intrinsically unfair to adopt an ex post facto aspect to the Bill by applying it retrospectively to those who have lived in the current order of succession for many years—their adult lives—but it would breach the principle of avoiding retrospective legislation in this House?

[Miss Smith]

I thank my hon. Friend for that contribution. I note that the different clauses of this Bill do carry slightly different connotations of retrospectivity. I would be happy to explain that, but we did cover some of those issues in detail in Committee. He is right to say that what is relevant in clause 1 is the legitimate expectations of those currently close to the throne in the line of succession. We do face a question about what is fair and reasonable to them. Clause 1 strikes a fair balance by providing that gender is irrelevant in this regard for persons born after the date of the agreement reached by the Commonwealth realms on 28 October 2011. That element of retrospection is justifiable.

An important practical element and effect of the measure is that if the Duke and Duchess of Cambridge were to have a daughter and then a son, the daughter would precede the son in the line of succession. I believe that all hon. Members know that that is an example of the point behind clause 1. It is also clear that that deals with a future occurrence, as opposed to altering the legitimate expectations of those currently in line to the throne. For that reason, I invite the hon. Gentleman to withdraw his amendment.

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[Michael Ellis]

It is a pleasure to follow the right hon. Member for Leicester East (Keith Vaz), the Chairman of the Select Committee on Home Affairs. I am a member of that Committee and I venture to suggest that there is no more important person to the home affairs of this country than our sovereign lady the Queen.

The unwritten constitution of this great country is rather like the roof over the temple of Solomon, and the monarchy is the central pillar holding up that roof. Other pillars include this House, the other place, the judiciary and the law courts. Perhaps even the press are a pillar of the constitution—although rather a stunted pillar so perhaps more of a balustrade. Nevertheless, one might argue that a number of pillars hold up the roof of our constitution. It is a multi-pillared structure—one might almost say a Parthenon—and one must be cautious before one chips away at those pillars. The consequence of such actions can be a structural collapse, and we all know that those who are beneath the structure chipping away at it can be the victims of such a calamity. I would exercise all due diligence and all due caution before instituting any changes, such as those that are envisaged.

However, I support the Bill. On balance, 300 years is about the right period of time—it is not overly hurried—for the provisions being changed by the Bill to be looked at afresh. Some aspects of the Bill are appropriate because they renew the ageing—one might even say decrepit—parts of the constitution and the ancient structure that I mentioned. It is always right to consider that this country of ours and the monarchy that heads it has always changed with the times. The monarchy has always tended to adapt to changing times. Recently, Queen Victoria, by her character and temperament—[Interruption.] Recently, in constitutional terms. When Queen Victoria came to the throne she represented a considerable change from the Georgian sovereigns who went before her. Her conduct, her decorum and the manner in which she reigned were lessons to her descendants.

There is no doubt that there is unacceptable prejudice currently written into the constitution of this country by such Acts of Parliament as the Act of Settlement 1701.

[Keith Vaz]

I accept everything that the hon. Gentleman has said so far, but does he agree with me and other Members of the House that there is unfinished business in respect of modernisation—for example, the succession to baronetcies? These are issues that we should return to in the future.

[Michael Ellis]

For my part, I prefer to leave the structures alone if we can possibly do so. I think there is something to be said for the ancient customs, traditions and privileges of this country, and we should be very cautious about making changes willy-nilly because of their unintended consequences.

We have heard from my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). He said, I believe, in a debate last Tuesday from which I was absent but which I have read in the Official Report, that he does not take offence at the terms of the Act of Settlement because it is the history of this country. I admire that and I wish more people would take such a mature view of such things. All too often people are quick to find offence where none should be taken. There is an inbuilt prejudice against other religions, my own included. Because those religions may not be in communion with the Church of England, their adherents cannot be eligible to be sovereign of this country, but I for one take no offence at that because it is part of the noble history of this country and it seems to me that there are reasons why we should retain that. Principal among them is the establishment of the Church of England.

The prejudices that exist are based not on current thinking but on historical reasons, and have been left unchanged only because Members of this House in recent generations have taken the view, presumably, that they have more important things to do than change them or because changing them involves great complexity. For that reason, as well as for many others, I admire my right hon. Friend the Deputy Prime Minister for being the one who brought these measures before the House. Whereas others have spoken of them and made supportive noises about them for many years, the Deputy Prime Minister has done it, and I congratulate him on that.

With reference to male primogeniture, one has only to look at the long and noble history of this country to see that we have been very fortunate with our female sovereigns. There should certainly be no reason why we should deny or make it more difficult for females to succeed to the Crown. We have the example of our current Queen and of Queen Victoria, and I dare say of those queens who were not queens regnant but queens consort. I am thinking of the late Queen Elizabeth the Queen Mother and Her late Majesty Queen Mary, who also were exemplars of duty, service to their country, and spirit. I have no problem with removing the male primogeniture aspect, as the Bill does.

However, I would not go as far as others and seek to defenestrate completely those parts of the constitution which in some way can be said to be prejudicial to some group or other. For example, one could argue that the law that says that the oldest person, whether male or female, should take precedence over young siblings is also biased. It is also prejudicial because it is ageist in that it favours older over younger. One could go on ad absurdum. I suggest that we try not to get too concerned about removing all aspects of the legal fictions that the law has had to develop over the years.

For example, when, for the purpose of inheritance, both the father and the eldest son die in the same instance, such as in a road traffic accident, the law assumes that the older died before the younger, even if it is transparent that they both died instantly in an accident. That is because the law has to develop types of legal regulation—legal fiction, one might call it—in order to make sense. I use this as an example to indicate with caution that attractive though it is in principle to remove all types of bias, there will always be some type of bias within the system, but the Bill goes some way towards rectifying the most egregious examples.

The Bill also deals with the Royal Marriages Act 1772. The Act has become redundant in as much as it is difficult to operate effectively.

[Wayne David]

The hon. Gentleman says the Act is redundant. Would it not be more accurate to say that it is a ridiculous piece of legislation?

[Michael Ellis]

I do not go so far as to say it is a ridiculous piece of legislation because there is a good reason why the sovereign should have a right over those closest to him or her in their marriage arrangements. The hon. Gentleman must also agree with that principle, because he said he agreed with the principle that the number should be reduced to six. So whether it be the heirs of Electress Sophia or whether it be six people, the principle remains the same. The sovereign has special rights and responsibilities. Of course it is true that in ordinary families no head of the family would have such a say, but it is nonsense to suggest that the royal family should be in that position. It is right that some demarcation be made so that the sovereign can exercise control. My understanding is that in other constitutional monarchies similar provisions apply, whereby restrictions are placed on the marriage rights of those closest in line.

I support the Bill. I commend it to the House. Although I emphasise that I would exercise extreme caution when chipping away at the pillars of our constitution, in my submission the Bill should have the support of the House.

[Chris Bryant]

I am grateful to follow the hon. Member for Northampton North (Michael Ellis). When he talked about the temple of Solomon, I was somewhat concerned about the number of pillars he was adding to the established archaeology of the building. The fact that it was destroyed by Nebuchadnezzar many centuries ago also made me worry about quite what direction the hon. Gentleman was going in, let alone whether we were going to start talking about how many wives and concubines Solomon had under the provisions of his own royal marriages Act.

I support the two main thrusts of what the Bill is trying to do, but I think that we will end up ruing its passage. That is not because I disagree with the principle of abolishing male-preference primogeniture so that women can inherit equally with men, nor because of the minor adjustment to the provision on those who marry Roman Catholics being allowed to continue in the succession. My problem with the Bill is that it does something very significant that I do not think the Government intend it to do. The Royal Marriages Act 1772 provided that an individual who was in line to the throne had to get consent from the monarch at the time of marriage. If the monarch refused to provide that consent, or the individual refused to ask for it, their marriage would simply become null and void. I do not think that any of us believes that anybody should be able to declare anybody else’s marriage null and void.

The new legislation that we are seeking to agree will have no effect on the validity of the marriage, but it means that the person will be removed from the succession. That matters because throughout the whole history of English Parliaments, Scottish Parliaments and Irish Parliaments, the succession has always been determined by Parliament, not the monarch. Parliament decided what should happen at the deposition of Edward II. In the case of Richard II, the decision was made by the shortest Parliament in our history—a one-day Parliament in Westminster Hall gathered by Henry Bolingbroke. One could argue that it was not a proper Parliament because Richard II was not present, but none the less the Commons, the Lords and the Church, gathered together, made the decision on who should be the new monarch.

[Michael Ellis]

May I suggest that Parliament will still make the decision, because it could intercede and put someone back in the line of succession if they had been excluded for this reason?

[Chris Bryant]

That is not in the Bill. Indeed, the Government have said that it is entirely a matter for the Crown, in the double sense of the monarch and the monarch’s Ministers, who might have a role in advising the monarch.

Incidentally, I would not want to be a monarch apart from Elizabeth with a “II” in my title, but when James II was removed, Parliament decided, through the Bill of Rights and then the Act of Settlement, to hand over a joint monarchy to William and Mary rather than to anybody else. Then, when the Stuart line was going to end with Queen Anne, Parliament decided how the succession should proceed. Again, when Edward VIII tried to abdicate in 1936, the abdication could be allowed only because there was a statute of Parliament the next day.