Succession to the Crown Bill — Second Reading
Lord Wallace of Tankerness (Advocate General for Scotland; Liberal Democrat)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Succession to the Crown Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill. I beg to move that the Bill be now read a second time.
This is a relatively short Bill but I do not think that any of us are under any illusions as to how profound it is. Indeed, is a rare occasion to bring a Bill of such historical import to this Chamber, and I am sure we look forward to a full, learned and illuminating debate.
This is a Bill with a clear purpose; to bring gender equality to the rules of succession and to remove explicit pieces of religious discrimination from our statute book. In so doing, we will make the rules governing succession fit for the 21st century, and reaffirm and strengthen the place of the monarchy within our venerable constitutional settlement-a monarchy that has shown a remarkable ability to adapt over the centuries.
The Bill does three things. First, it ends the system of male preference primogeniture in the line of succession. Secondly, it removes the bar on a person who marries a Roman Catholic from succeeding to the Throne-a legal barrier that applies to Catholics and only Catholics and no other faith. Thirdly, it replaces the Royal Marriages Act 1772-an Act that requires any descendent of King George II to seek the reigning monarch's consent before marrying, without which their marriage is void. This clause has attracted some debate. It may help the House if I set out briefly why we have added this clause to the other principal planks of the Bill.
With King George II's descendants now numbering in their hundreds, this law is clearly unworkable and so it is replaced with a provision that the monarch need only consent to the marriages of the first six individuals in the line of succession, without which they would lose their place. In this way, we retain the tradition of monarchical consent but, in limiting it to the people who could feasibly assume the Throne, it will be applied in a much more reasonable way.
These changes will be effected not just in the United Kingdom, but in each and every realm of the Commonwealth for which Her Majesty is head of state. This was the agreement made by the realm heads of government in Perth, Australia in 2011. That announcement let to a long consultation among the realms to agree a UK Bill that provides the framework for these important changes across the far corners of the Commonwealth.
Agreeing a Bill with such a global reach has indeed been a diplomatic feat and one which colleagues in New Zealand have led with vigour and dedication. It has also been some time in the making: it took more than a year of detailed discussions before we received the final written consent from each realm. At the beginning of this month, we saw the Canadian Succession to the Throne Bill have its Third Reading in the Canadian House of Commons, and that Bill is now being considered by the Senate. This demonstrates the careful choreography and consideration that has been required.
In many ways, this Bill is akin to an international treaty and it is incumbent on us to give this legislation detailed consideration of what I hope is a Bill with a clear purpose. This is not just to assure ourselves that the law is sound, but also to consider that these changes will be brought into effect in lands beyond our borders, lands that are tied together by a common history and monarch through the Commonwealth.
Some, such as Canada, will pass their own legislation to achieve these goals, while others, such as Belize and Papua New Guinea, have been clear that legislation is not required in their jurisdictions and the laws can apply directly. With this in mind, I make it clear that it would, in my opinion, be unwise to use this Bill as a vehicle for UK-specific changes that would be of little or no relevance to the realms.
For this reason, the Bill does not, for example, touch on the complex and often emotive issue of hereditary peerages. Moreover, there are some key differences between the law on hereditary peerages and the rules governing succession to the Crown. First, the Crown does not become extinct if there are only female heirs. Secondly, the succession of the elder daughter or her descendants is automatic in the rules governing succession to the Crown, as indeed we saw when Her Majesty succeeded her late father, King George VI. Changes to the law on succession to the Crown can be effected without any change to the legitimate expectations of those in the line of succession. Changes to the rules governing succession to hereditary titles would be far more complicated to implement fairly. For this reason, we do not believe that changes to the rules governing succession to the Crown should serve the purpose of addressing what is the quite separate issue of hereditary titles.
I want to pause on the issue of hereditary titles to assure the House that the removal of the male bias in the rules governing the succession to the Crown will not result in any other royal titles becoming detached from the Crown. We must also bear in mind that any significant change to the substance of the Bill would require further consultation with the realms before it could be agreed. But that should not, and indeed it must not, prevent us having a full debate and giving this important constitutional change the scrutiny it deserves and requires. I fully concur with noble Lords on the Constitution Committee of this House who in their report on this issue noted the need to provide the opportunity for full debate in Parliament. With this in mind, I was glad to note that Members in another place had more than sufficient time to consider the amendments that were selected for debate. A number of issues were raised by Members in another place, including by Mr Rees-Mogg, who instigated a most enthralling debate on the position of the established church and the potential for a Roman Catholic to succeed to the Throne.
I want to reiterate in this House the Government's full support for the established church in England, with the Sovereign as its supreme governor. We consider the relationship between the church and the state in England to be an important part of our constitutional framework, which has evolved over the centuries, and we have no intention of changing the position. It is also worth pausing briefly to consider what the Church of England has said on this matter, which has been set out in a briefing issued to noble Lords by the church. It states that,
"the present prohibition on anyone remaining in the line of succession or succeeding to the Crown as a result of marrying a Roman Catholic is not necessary to support the requirement that the Sovereign join in communion with the Church of England".
Indeed, this Bill does nothing to change the requirement that the Sovereign be in communion with the Church of England and maintain the established Protestant religion in the United Kingdom. In a speech in this place during the debate on the Queen's speech on
"The references in the humble Address to reform of the rules of royal succession are sensible and timely. I know I speak for all on these Benches when I say that we wish the Government well in their present consultations with the other Commonwealth realms. We look forward to and hope that it will then be possible for the necessary Bill to pass quickly through both Houses of Parliament".-[Hansard, 14/5/12; col. 168.]
The Archbishop of Westminster has said that:
"I welcome the decision of Her Majesty's Government to give heirs to the Throne the freedom to marry a Catholic",
"I fully recognise the importance of the position of the Established Church in protecting and fostering the role of faith in our society today".
I am sure that this issue will be something that noble Lords will wish to discuss further in the course of our deliberations.
A further issue that was raised in another place was whether the children of a mixed marriage would be required by canon law to be brought up as Roman Catholics. I should like to be clear that Roman Catholic teaching requires the Catholic partner in a mixed marriage to do their best to have the children raised as Catholics, but if there is a "just and reasonable cause", and it is certainly my view that the protection of the place of the Established Church would qualify as a reasonable cause, then the local bishop can grant permission for the marriage. I want to make it clear that this decision is made at the level of the local bishop, not the Vatican.
There was also discussion in another place as to why the Royal Marriages Act was replaced with a provision requiring monarchical consent to the marriage of the first six in line to the Throne. I should make it clear that the power of monarchical consent to marriage should be limited to avoid undue restrictions and penalties on people who are not in the immediate line of succession. However, there remains a public interest that consent be given for the marriage of someone who may well become our head of state. Consent of the monarch to the marriage of the first six in line to the Throne provides, in the Government's view, a modernisation of the rule. Since the Royal Marriages Act was passed, the Crown has never passed to anyone more than five steps removed from the reigning sovereign at the time of their birth, the furthest removed being Queen Victoria. Given that, the Government believe that the consent for the first six in line provides sufficient proximity to the Throne.
The Bill protects the spiritual and temporal position of our monarchy while also removing two long-standing pieces of discrimination currently entrenched in law against women and Roman Catholics. Removing discrimination should never be described as an "unnecessary tinkering", as some have described it. The Bill provides for equality between the sexes in the line of succession. Looking back to our great female monarchs, not least to our own sovereign, Her Majesty Queen Elizabeth II, and the great service that they have all provided for our country, I hope that these are changes that we can all support. I commend the Bill to the House.
Baroness Hayter of Kentish Town (Labour)
My Lords, I thank the noble and learned Lord the Minister for opening the debate in that way. He says that he looks forward to a learned debate. I fear that I will not be able to start at that level, but I hope that others will raise the level thereafter.
I congratulate the Government on their successful negotiations with the other Commonwealth countries, and I warmly welcome the Bill both on behalf of the Official Opposition and, if I may, on my own behalf. Labour's 2010 manifesto stated that the Labour Party believes,
That was in 2010 but my own commitment to this goes back almost 60 years when I was first incensed, at quite a young age, at learning of the rule that younger brothers took precedence over older sisters. Perhaps I should be grateful because I think that my feminism started from those days. However, it means that for me it is a particular honour and privilege to play even the tiniest part, along with your Lordships, in rectifying this centuries-long discrimination.
We have, of course, been expecting at least the first two clauses of this Bill since the Prime Minister's announcement at the Commonwealth Heads of Government Meeting in Perth-mentioned by the Minister-in October 2011, along with the Commons Political and Constitutional Reform Committee's subsequent welcome of it in December of that year, as well as Her Majesty's own words here in your Lordships' House on
It is perhaps particularly apt that we should be discussing this on Valentine's Day-a day of love and happiness-and in the Diamond Jubilee of the Queen's reign, celebrating her 60 years of brilliant leadership. There is perhaps no finer record of female suitability for the Crown than her own. I think that this Bill is a better tribute to her record than a piece of frozen land in Antarctica.
The measure has been a long time coming, although of course if the summer babe is a boy, it may be another 30 years until that son produces a daughter and before this part of the Bill has any effect, so its long gestation may yet have some way to run. I hope, though, that I might be forgiven for keeping my fingers crossed that we may have a girl this year.
It is always fun to think about what might have been had the first born always been the heir. Today is the 400th wedding anniversary of the marriage of James I's eldest child, Elizabeth Stuart, to the Elector Palatine Frederick. How different history might have been, had she been permitted to ascend to the throne.
The second clause, allowing an heir to the Throne to marry a Catholic, is also long overdue, and it is another issue that has troubled me for about half a century. It is a welcome move towards equality. It does not remove the bar on a Catholic becoming King or Queen but, again, I venture to suggest that this may not be an issue for some 50 years hence, and I, for one, will not be around in your Lordships' House to speak to any amendment to the Bill at that stage.
The third clause removes an anachronism of which, despite supposedly being an historian, I confess that I was unaware until the Bill came our way. I will blame my supervisor, the noble Lord, Lord Hennessy-who is not in his place-for that lacuna in my historical education. It is true that I had always noticed the words, "The Queen has given her consent" on the announcement of the engagements of her grandchildren, nieces and nephews, but I had not quite realised the significance of those half-dozen words. Of course, this clause is likely to be the first of the three to have a real effect, so it is likely to be the one that we first see enacted.
I believe we all wish the young couple a happy event this summer and we hope that it will not be troubled by press harassment and intrusion. We wish this Bill well as it passes through your Lordships' House.
Lord Lang of Monkton (Conservative)
My Lords, I enter this important debate with some trepidation. I cannot help wishing that the Deputy Prime Minister was able to say the same thing. A letter received by the Constitution Committee from the secretary to the Catholic Bishop of Nottingham criticised the,
"nonchalance with which the Deputy Prime Minister seems to be treating a Bill that goes to the very heart of our constitutional settlement".
I agree. Legislating on the succession to the Crown is like performing open-heart surgery on our constitution: it needs great care.
As a member of the Constitution Committee, I share the view expressed in our report that a Bill of this kind should not have been fast-tracked. I am glad that the Government have to some extent relented, but I feel that the preparation of the Bill and the consultation upon it have also been fast-tracked. There has been no prior debate in Parliament, no pre-legislative scrutiny, no White Paper-we are presented with a fait accompli agreed by all the other Commonwealth realms. We are told it has been extensively discussed with those realms, but one cannot help suspecting that such scrutiny will have been confined to consideration of how these changes would fit into their own constitutional laws rather than the merits of the changes themselves.
Now, constitutional arrangements that have provided stability and clarity for three centuries are to be swept away in the blink of an eye. I do not wish to strike a discordant note, but it is hard to avoid the view that parliamentary scrutiny was not really wanted. I have no problem with the introduction of gender equality in the line of succession. It is in keeping with the mood of the times and does not seem to raise long-term problems for the Crown.
Freedom of religion is in principle a desirable aspiration, but of course this Bill does not provide it, and nor can it. The nub of the matter is that on the one hand it allows the heirs to the Throne for the first time to marry Catholics but on the other hand it leaves untouched the absolute ban on the Throne being occupied by other than a member of the Church of England. The dynamics of the Bill create an inescapable collision course. We may not know precisely what the unforeseen consequences will be or when they will emerge, but we may be sure that sooner or later they will emerge.
As neither a Catholic nor an Anglican myself, I have tried to view objectively the potentially destructive tension that is built into the Bill, but it seems to me that in a hereditary monarchy such as ours, the line of succession should be secure, settled, transparent, wholly predictable and with no room for doubt. The changes introduced by this Bill do not meet that test, and that may well place the stability of the monarchy at risk at some time in the future.
I would like to focus my remarks on two issues: first, the repeal of the Royal Marriages Act 1772, which could easily have been updated and modified, and its replacement with an arbitrary designation of the first six persons in the line of succession as requiring the monarch's consent to their marriages; secondly, the change introduced in Clause 2, which will relax the ban on marriage to Catholics. Confining the requirement of marriage consent to six certainly narrows the field, but it increases the focus upon them. It thus condenses the problem. It jars with the relaxation of the ban on marriage to Catholics in a way that is at best unsettling.
Why six, one wonders? I ask my noble and learned friend what the rationale for this number is. In his opening speech, he mentioned Queen Victoria, who started life at five removes from the Throne. Well, six is one more than five, but that is hardly a considered basis for long-term constitutional change. The Deputy Prime Minister described the decision as being arbitrary but pragmatic. With great respect to him, I suggest that "ill considered" and "wrong" could equally well describe it. I believe that the number is inadequate because it does not bring certainty. There is a tendency to think of the succession in a linear way, with the Crown passing down tidally through the generations, but that is not the way it happens. Initial expectations often go unfulfilled. Henry VIII, for example, was a second son, Charles I was a second son, George V was a second son, and George VI was a second son.
One should instead think of the line in terms of family groupings and with wide age ranges within each. Let us consider in times to come, perhaps many years from now, the example of an heir to the Throne, No. 1 in the club of six. He or she may already be aged around 60 or more given the trend of life expectancy, married to an Anglican, and with three children and a couple of grandchildren. They are all club members. The future looks secure, but life is always fragile-and I did not list the ways in which disaster can befall a family.
The normal assumption seems to be that those in the line of succession could start their lives close to the Crown then move down the line and out of the club of six as time goes by. But it could happen the other way. In the example that I have given, the reigning sovereign's second and only other child could suddenly find themselves back in the club of six and heir to the Throne, but while out of the club he or she had married a Catholic and they had Catholic children, who are therefore debarred.
So the line shoots out to nephews and nieces of the sovereign and their children, who have been living relaxed and normal lives in who-knows-what marital and religious circumstances, with no expectation of being brought back into the club of six in which some of them may have started their lives. We would even end up with a succession by leapfrog, finding Anglican heirs each surrounded by their Catholic families.
Perhaps I exaggerate the risk of this kind of instability, but perhaps not. Six, I suggest, is not enough if we want a settled, stable line of succession of which we can be certain-12 perhaps, but not six. I understand that the number of six was not mentioned in the Perth agreement and ask my noble friend whether the Government might be receptive to an amendment to that effect.
On the issue of religion, we are told that both churches have expressed acceptance of the Bill. The Catholic Church has nothing to lose and everything to gain from it. Anglicans, however, have everything to lose and nothing to gain, so I fear their position says more for their generosity of spirit than for the worldliness of their wisdom.
In fact, the clause covering sovereign's consent does not mention Catholics, but by specifying no religion it opens the door somewhat furtively to a potential ban in the hands of the reigning monarch on any of the first six in line at any one time from succeeding to the Throne, not because a Catholic spouse might be involved but for whatever reason or whatever religion the monarch chooses. Far from being a restriction, that is quite a substantial extension of their power.
In our constitutional monarchy-the noble Baroness referred to this-the monarch acts on the advice of Ministers, but given the very personal and familial nature of the decisions taken, involving some of but not necessarily all his or her own children, one can readily see how painful these decisions would be for the monarch and how easily controversy and crisis could alight on the head of the sovereign of the day. That is not a recipe for stability, or for happy families.
We know from the Minister's statement during debate in another place that anyone who has ever "professed" the Catholic faith is barred from ever succeeding to the Throne. That seems to be definitive and to rule out a change to Anglicanism for those royal children who started as Catholics, again raising the possibility of block disqualifications from the succession. In his oral evidence to our committee, however, the Deputy Prime Minister indicated that the Catholic Church's attitude had changed so that the royal children of a Catholic parent could be brought up solely as Anglicans and thus remain in the line. He told us:
"There is a lot of flexibility".
The secretary to the Catholic Bishop of Nottingham disagreed. His letter to us told us that,
"there is still a presumption that the Catholic party in a so-called 'mixed marriage' will promise to have their children baptised and brought up as Catholics".
I know that my noble friend referred to this, but I make no apology for repeating it as it is important. He quoted to us the detailed rules from Canon 1125 of the Code of Canon Law, which are indeed robust. For good measure, he added:
"Should a Catholic spouse of a future sovereign wish to bring up their children as Catholics, a constitutional crisis would surely ensue",
so having a word with your local bishop might not get the right result.
Frankly, that is no way to contemplate the line of succession to our country's Crown. The Deputy Prime Minister has cheerfully suggested that negotiations for a dispensation could be opened with the Vatican. I noticed that my noble friend was slightly backing off from that position today. Perhaps one could appeal to the Pope, and I suppose the Pope might say yes, but he might say no. After all, there is not a great deal of support in the Vatican for gender equality or religious freedom.
Anyway, I seem to remember that in 1533 Parliament passed an Act in Restraint of Appeals to Rome, which was part of the process whereby England underwent the Reformation. I would not go so far as to suggest that the consequence of this Bill might be to unpick the Reformation, but to encourage the British Royal Family to appeal to Rome in matters affecting the succession to the British Crown seems rather to cut across the history of the past five centuries.
In conclusion, this is not a well made Bill. It defers to the zeitgeist in matters of gender and religious freedom, at the expense, in the latter case, of stability and certainty. I believe that as a result of it pressure is bound to grow over time to allow our sovereigns to have a free choice of religion. Whether that is right or wrong, that would bring with it a sea of troubles. Church and monarchy in this country have been closely linked since almost as long as these two institutions have existed, long pre-dating the matters that we are tinkering with in the Bill. In each reign, the bonds are renewed and made manifest in the coronation oath and the anointing of the new monarch. This little Bill, hurried through Parliament, could well turn out to be a halfway house. I fear it does a disservice to both church and monarchy and casts an unsettling shadow over the future.
Lord Maclennan of Rogart (Liberal Democrat)
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 Maclennan of Rogart (Liberal Democrat)
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.
The Bishop of Exeter (Bishop)
I fully support the Bill, but if we are going to go into history, it is terribly important to remind ourselves of the reason why the prohibition against a Catholic was brought into English law in the first place. It has its origins in the bull Regnans in Excelsis of Pope Pius V in 1570, which absolved all English Catholics of any responsibility to obey the laws of the English realm, and indeed placed any English Catholic who so obeyed under the possibility, indeed, the likelihood, of excommunication. It was that bull that was used as the justification for the rebellion against the Crown in Ireland. That is the historical reason. I am not saying that it necessarily applies to where we are today, but if we are going to revisit history, it is important that we do so accurately and understand why these things entered into our historical experience.
Lord Maclennan of Rogart (Liberal Democrat)
I understand why they entered into our constitution but to judge people on the basis of their belief, because they have been given permission by the hierarchy of the Church to which they belong to disobey the laws of the state, seems not to connect the individual with the Crown. That led, in so many cases, to execution, cruelty, torture and abysmal behaviour on the part of those who were supporting the established Church-including the monarch herself.
Lord Deben (Conservative)
Did my noble friend notice that the right reverend Prelate said that he did not think that those reasons necessarily applied today? Surely it is unacceptable that anybody should say that those reasons apply in any sense today, given that of the people in church on a Sunday who pray for Her Majesty's health, more of them are in Catholic churches than in any other denomination.
Lord Maclennan of Rogart (Liberal Democrat)
I entirely agree with my noble friend. It seems to me that we should not allow our future disposition on the succession to the Crown to be governed by what happened in the 1570s, which to my mind was a period of shame.
Lord Maclennan of Rogart (Liberal Democrat)
On both sides-I accept that. I hope that we can accept as a very valuable step in the right direction the provisions of this Bill, which recognise that marriage to a Roman Catholic is acceptable by the heir. The fact that there are so many unresolved questions seems not entirely surprising, bearing in mind that we were seeking to get the agreement of 15 other Commonwealth countries, However, I hope that the discussion will continue and that we will see our country and our democratic Commonwealth fellows move towards recognising that religion is not a requirement of the sovereign and that the sovereign should be an exemplar to all religions. The utterance of the heir to the Throne about regarding himself as a defender of the faiths, in the plural, was an enlightened comment and I hope that we can move in that direction.
Lord Luce (Crossbench)
My Lords, I declare an interest as a former Lord Chamberlain of Her Majesty's Household and I welcome this Bill. I find it difficult to be quite as gloomy as some of the remarks we have heard so far from noble Lords because essentially, as the Minister said, the heart of this Bill is to remove discrimination against females and against Roman Catholics. This issue has been debated, as we know, over many decades. For the past three or four decades, we have been debating this and support for this removal of discrimination, particularly against females, has been widespread in Parliament and in the community. It seems that successive Governments have waited for an event to happen in order to feel the need to introduce measures of this kind, but I welcome them all the same.
The strengths of the monarchy, as we know, include not only the service that the monarch gives to the community, which is its most important strength, but the ability of the monarchy to adapt to new circumstances. This Bill is an indication of just that. Whether we have had enough time to debate these issues is a matter for discussion but I am glad that the Government are dealing with this in a typically British, pragmatic fashion. The Bill is limited in scope, principally because, as we have already heard, 16 realms had to be consulted and had to pass similar measures through their legislative assemblies. That also means that it does not tamper, I am glad to say, with the whole question of the establishment of the Church of England, nor with the question of succession for, for example, hereditary Peers. The commitment goes back to October 2011 and that agreement in Perth. Once all the Parliaments have implemented that, it will be retrospective to that date.
There is one aspect of the Bill that I would like to pursue, partly along the lines of the issue raised by the noble Lord, Lord Lang. It relates to Clause 2, under which marriage to a Roman Catholic will no longer result in a member of the Royal Family losing his or her place in the line of succession. If we look back over the centuries, as we as we have discussed, discrimination and prejudice against Roman Catholics has a very long history. Looking at the Act of Settlement 1700, the threat to the Throne from Louis XIV of France and the strains in those days with Rome, I find it difficult to envisage today President Hollande posing a similar threat to our Throne. We live in a different age of greater tolerance between the faiths.
Clause 2 does not affect the establishment of the Church of England and the requirement of the monarch as its Supreme Governor to,
"join in communion with the Church of England",
but, as the noble Lord, Lord Lang, pointed out, for children to retain their place in the line of succession, they must be brought up within the Anglican faith. This has to be reconciled with Canon 1125, where the obligation on the parents is that,
"the catholic party is to declare that he or she is prepared to remove dangers of defecting from the faith, and is to make a sincere promise to do all in his or her power in order that all the children be baptised and brought up in the catholic Church".
Some have used the term "best endeavours" to describe that canon, in that parents should use their best endeavours. I want to pose a question about whether we have sufficient assurance, as it were, that misunderstandings may not arise following the marriage of a member of the Royal Family to a Roman Catholic regarding the position of their children.
We have a precedent to go on: their Royal Highnesses Prince and Princess Michael of Kent, who are of a mixed marriage but whose children are both brought up in the Anglican faith. We hear that there is more flexibility in the Roman Catholic Church on these issues. If we go back to the Perth agreement in October 2011, it was the former most reverend Primate the Archbishop of Canterbury, Rowan Williams, who said that there needs to be "a clear understanding" that the heir is brought up in the Church of England environment. Alongside that, the Archbishop of Westminster, Archbishop Nichols, as I think the Minister said, welcomed the proposals and recognised the importance of the role of the Established Church.
Clearly, if the parents are presented with a mixed marriage and are deciding about their children, they will be well aware that a Roman Catholic upbringing for their child would remove their right to be monarch. However, I ask Her Majesty's Government whether they would consider exploring with the Roman Catholic Church, but perhaps particularly with the Archbishop of Westminster, whether it will clarify further its attitude to this in order to minimise the risk of misunderstanding. I have in mind here a statement along the lines of a reference to the importance of the role of the Established Church; acknowledging the special circumstances that might arise for the children of a mixed-faith marriage involving the line of succession; referring to the precedent of Prince and Princess Michael of Kent; and accepting that the children of such an interfaith marriage would be likely to be brought up in the Anglican faith. I would like see a clearer statement from the Roman Catholic Church in order to minimise misunderstanding, and I hope that the Minister can give us an assurance that this matter could be explored over the next few weeks.
The Bishop of Worcester (Bishop)
My Lords, I welcome the Bill. The Church of England, as has been intimated, is, broadly speaking, content with the Bill as drafted. We understand the concerns expressed by some about the fast-tracking of constitutional legislation and would usually share them, but the Government are entitled to point out that these proposals have been worked on over a long period, discussed carefully with the church and, as has been observed, agreed with other realms.
The vast majority of people would surely agree that male primogeniture is not appropriate and it is right that this should be changed. The Bill marks a necessary stage in the evolution of the relationship between the monarchy and the people of this country. Such evolution has helped to ensure that the monarchy has been sustained in the affections of the people of this nation. We are all delighted about the impending birth of a child to the Duchess of Cambridge, and it is timely that this change should take place now.
As for male primogeniture, so for the prohibition on marrying a Roman Catholic and remaining in the line of succession to the Throne. The relationship between the Church of England and the Roman Catholic Church, as has been pointed out in your Lordships' Chamber, has changed drastically, I am pleased to say, since the 15th and 16th centuries, but it is worth noting that there has been a sea change in ecumenical relations between the two churches in recent years, as evidenced by the warmth of the relationship between Pope Benedict and the former most reverend Primate the Archbishop of Canterbury, Rowan Williams, a warmth that I would say extends over the realm. For example, the Archbishop of Birmingham has recently accepted my invitation to become an honorary canon of Worcester cathedral. This means that the prohibition on an heir to the Throne marrying a Roman Catholic is somewhat out of time.
This change would not undermine or replace the requirement that the sovereign join in communion with the Church of England or threaten the establishment of the Church of England, something, as has already been pointed out, that the Archbishop of Westminster has stated publicly that he values, saying that he fully recognises the importance of the position of the established church in protecting and fostering the role of faith in our society today.
Lord Forsyth of Drumlean (Conservative)
I am most grateful to the right reverend Prelate for giving way. As a member of the Church of Scotland, could he help me with why it necessarily follows that if the sovereign were allowed to be a Catholic, the position of the established church would be undermined? This may not be the happiest of precedents, but James I was both a Catholic and head of the Church of England. Is it beyond the wit of modern men and women to devise a scheme that would allow the sovereign to be a Catholic and the head of the Church of England?
The Bishop of Worcester (Bishop)
Our position would be that it is very important that the monarch, as Supreme Governor of the Church of England, should be a member of it. I am not sure that I want to go into that whole area at the moment; rather, I shall confine myself to what the Bill actually does and does not imply.
Her Majesty the Queen takes very seriously her position as Supreme Governor of the Church of England, and it is important to us that nothing in this legislation threatens that. The established church brings so much to our nation, as Her Majesty herself observed at Lambeth Palace last year:
"we should remind ourselves of the significant position of the Church of England in our nation's life. The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated. Its role is not to defend Anglicanism to the exclusion of other religions. Instead, the Church has a duty to protect the free practice of all faiths in this country.
It certainly provides an identity and spiritual dimension for its own many adherents. But also, gently and assuredly, the Church of England has created an environment for other faith communities and indeed people of no faith to live freely. Woven into the fabric of this country, the Church has helped to build a better society-more and more in active co-operation for the common good with those of other faiths".
I support this Bill wholeheartedly, and I wish the Government well in it.
Lord Trefgarne (Conservative)
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 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.
Lord Dubs (Labour)
My Lords, I give this Bill my enthusiastic welcome. The issues have been debated frequently, there has been a succession of Private Members' Bills, one of which I introduced to this House about nine years ago, and nobody can say that the topic is not pretty well understood.
I shall refer briefly to The Future of the Monarchy: The Report of the Fabian Commission, which came out about 10 years ago. It embodied many aspects of the Bill, but went a bit further. It may well be that this is the first time that the Fabian Society has produced a report that has been taken up by a Government other than a Labour Government. I am sure George Bernard Shaw and the Webbs would have been delighted if they had known that this would happen. The Fabian Commission included two Members of this House and a former Clerk of the Parliaments. Indeed, the right reverend Prelate the Bishop gave evidence to it. So there has been a great deal of discussion about this, but we may need to wait perhaps 30 years to know where the impetus for this Bill came from, whether it came from the Conservative Party or the Liberal Democrats, but perhaps that is not important today.
When I introduced my Bill, the main objection to it was that the issue was too all-embracing and too difficult to be the subject of a Private Member's Bill, and on the basis of that argument, I withdrew it. Since then, 15 other Commonwealth countries have been consulted and this Government have worked very hard to bring the Bill to the present position. I think we should all be delighted that it is now before us.
The clear point, which has been stated by many Members of this House, is that as a country we are totally opposed to discrimination on grounds of gender or religion. It is wrong that there should be discrimination at the highest level in our country. In the words of the Fabian Society report:
"It should no longer be acceptable for the monarchy to embody what are effectively forms of institutionalised discrimination".
That is very good. Of course, I fully understand that, given the happy event expected by the Duchess of Cambridge later on this year, it is important that the Bill becomes law before she has a son or a daughter. And there can be no doubt that the Queen herself has clearly demonstrated how ably and effectively a woman can do the job. I believe that history may well judge her to have been our most effective monarch. That is a big statement, but she must certainly be on the shortlist for such an accolade.
In passing, I remind the House of the Queen's visit to Ireland a couple of years ago. By any standards, her visit was a breathtaking success and further improved our good relationship with Ireland. Although we do not talk about it very much now, in Ireland they still talk about the success and importance of that visit, and how well the Queen handled all the issues that arose.
Another matter that has been referred to in a number of speeches, including in the Minister's, is the effect of the principle in this Bill on the nobility. I know that newspapers have written about it quite enthusiastically, and have interviewed a number of Members of this House. It is clearly not for this Bill, and others may judge how to take it further on a future occasion.
Dealing with gender discrimination in the Bill is absolutely straightforward; nobody has argued with that proposition. The same clearly cannot be said of religion. Indeed, most speeches so far have been concerned with the difficulties caused by the reference to Catholicism in the Bill. Let me therefore tiptoe into areas of controversy.
It is clear that the obvious difficulty is the position of the head of state as Supreme Governor of the Church of England. I am not persuaded that that could not be brought to an end without the Church of England being disestablished. I do not understand why our monarch has to be the Supreme Governor. Surely the Church of England could be the Established Church without that happening? If the head of state were no longer to be the Supreme Governor of the Church of England, many of the difficulties described in the Bill would disappear immediately. That would be a much more sensible position. Obviously, the alternative would be to disestablish the Church of England entirely, but I am not arguing for that. I am simply saying that the position of the head of state as Supreme Governor should be questioned. I am not sure that it does the church any good, and it would certainly make the Bill much more straightforward.
I have absolutely no intention of dealing with that matter at later stages of the Bill. The most important thing is for the Bill to become law as soon as possible, but it is only reasonable that a Second Reading debate gives us an opportunity to float issues. This I have done.
I would like there to be a position in which the monarch herself or himself could in future be a Catholic, or of no faith, if he or she wished. That would be a better outcome than the present one. In any case, although we are talking about the Church of England-I am not an expert on all religions-we are also talking about the Queen as the sovereign in Scotland, Wales and Northern Ireland. All sorts of difficulties arise other than the Queen being Supreme Governor of the Church of England. That is an additional argument for making the change that I have suggested.
These are clearly issues for the future. Today, I repeat my warm and enthusiastic welcome for the Bill, and wish it a speedy passage into law.
Lord Carlile of Berriew (Liberal Democrat)
My Lords, I declare an interest as father and stepfather of five admirable females, each of whom tends to treat me graciously as a kind of loyal subject.
The Bill is timely. It seeks to ensure the stability and the acceptable continuity of the realm. I happen to be, like a number of other Members of your Lordships' House, the first member of my family ever born in the United Kingdom. My father could have gone to the United Kingdom, the United States of America or possibly elsewhere. He was born in 1904, and from an early age was a fervent Anglophile. Part of what brought him here, as he told me many times, was the sense of historical continuity given by the Crown. The Bill and the negotiations that have preceded it are a mark of the willingness of the Crown to embrace modern values and diversity in society, particularly relating to the role of women.
I will raise four points with my noble friend the Minister, of which he has had advance notice. I acknowledge the part played in these by a brilliant and unusual constitutional lawyer called Graham McBain, who has written copiously and persuasively about this subject and about redundant statutes. Although I will not be moving amendments at later stages of the Bill, as it would be inappropriate on this Bill, these are anomalies which the Government should consider.
The first relates to the Roman Catholic Relief Act 1829. The Government have remembered in the Bill to amend the Regency Act 1937 so that a person who fails to obtain the consent of the Queen to their marriage cannot be regent. This is reasonable. The Regency Act also prevents a Catholic from being regent by reference to the Act of Settlement 1700. However, the Bill provides that the Act of Settlement is now subject to the Bill. The result is quite simple: a Catholic can now be regent.
Except that it is not quite so simple, because the Government appear to have forgotten another Act of Parliament: the Roman Catholic Relief Act 1829. It, too, prevents a Catholic from being regent. By not repealing the 1829 Act, we will have one Act that allows a Catholic to be regent, and one that does not. I do not know if anyone will brief me to apply for judicial review if we ever have a regent, but it seems that this is the sort of issue that ought to be tidied up.
Lord Deben (Conservative)
As I understand it, the regent is not Supreme Governor of the Church of England, which rather suggests that the noble Lord, Lord Dubs, was right to suggest that there ought to be some simple side-stepping of this to get over the whole problem. Would my noble friend not agree?
Lord Carlile of Berriew (Liberal Democrat)
I respectfully agree with my noble friend and the noble Lord, Lord Dubs, on this point.
My second point, which I was going to make in greater detail but will not, has already been made by my noble friend Lord Lang about consent to marriage and whether six is an adequate number. I would have taken the opposite view-that six is too large a number-on an entirely different point of principle. However, we should be able to debate this issue and determine it in relation to this Bill. It is a right in modern times for a man and a woman to marry whom they wish. Indeed, according to my rather dog-eared copy, the European Convention on Human Rights did not design that right but it makes clear that that right exists, not just in the United Kingdom but throughout the countries of the Council of Europe.
To prevent people from marrying whom they wish is quite an intervention in their human rights. To extend it to as many as six people is to extend it too far. I say to my noble friend Lord Lang that we live in a different era from the one in which Queen Victoria became the monarch. I have my doubts as to whether what happened then could happen now, or is in the realms of reality given the welcome size of our modern Royal Family.
Thirdly, I suspect that the Government may have forgotten another law. 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 a dowager Queen from remarrying. It is possible that that right still applies and that, under the common law, the sovereign could enforce his or her consent in the case of the marriages of brothers, sisters, cousins et cetera. Therefore, I respectfully suggest to my noble friend the Minister that any anomaly in the common law should be abolished in this Bill so that we do not have another unforeseen problem.
My fourth point arises mainly from the fact that I was brought up in east Lancashire in the county palatine, where at every dinner I would be shocked if I did not hear the loyal toast made to the Queen, the Duke of Lancaster. Of course, that is a sovereign's title, but there are other titles which the sovereign's eldest child inherits, which already have been mentioned by my noble friend Lord Trefgarne. I would have drawn particular attention to the Duchy of Cornwall and, as someone who represented a constituency in mid-Wales, the earldom of Merionethshire, which is regarded with great value in that beautiful, if hard to access, part of rural Wales.
If His Royal Highness Prince William and the Duchess of Cambridge have a girl, she will, thanks to the Bill, be able to become Queen. However, she cannot as of right become Duchess of Cornwall or Countess of Merionethshire. That seems to me to be an anomaly. I understand why the Government do not want to get involved in this Bill and in the hereditary peerage at large-that is a private grief enjoyed by a number of my noble friends in this House into which I would not wish to interfere. But surely we could engage in titles that belong to the heir to the Throne. In that, I support my noble friend Lord Trefgarne.
I raise these issues because, as I was thinking about it, I realised that we are unlikely to return to this subject for a few hundred years. That may be a blink in the evolution of your Lordships' House-I would add "thank heavens" from my personal position rather than from my political position-but if it is to be a few hundred years before we return to this subject, should we not deal with it now? Should we not take into account these and other difficulties that might arise, sort them out and iron them out?
Finally, I am sure that your Lordships' House would wish to join me in offering our warmest good wishes for the challenges of parenthood for the royal couple.
Lord Janvrin (Crossbench)
My Lords, I am grateful for the opportunity to contribute to this important debate. I, too, must declare an interest as a former member of the Queen's Household, and I should add, if it needs adding, that what I say represents my own views alone. I share the general view that any constitutional change needs to be approached with great caution and infinite care. Laws and conventions shaped by centuries of history should not be idly adjusted according to fashion or passing trend. Much hard thought needs to be given to digging deep into the longer term or the indirect effects of doing things differently.
It is essential to ensure that what may seem to be the benefits of constitutional change are not in fact outweighed by unforeseen, unintended or undesirable consequences. This is certainly the case with such a central element of our constitution as the laws of succession to the Crown. The issues around change in this area are perhaps compounded by the fact that the Queen is Queen not only of this country but of 15 other realms. Changing the rules is not a matter for us alone. If such a change is to work, 16 realms need to be signed up. This makes it a complicated matter and one not to be undertaken lightly. I can understand why Governments in the past may have left this issue firmly in the "too difficult" tray over many years.
Although I come from this starting point of caution, I would like to express my support for this Bill and its introduction at this time. It will strengthen the monarchy and strengthen one of our fundamental national values-a sense of fairness. It does so in a careful and evolutionary way that takes account of social change and modern realities without prejudicing some other important parts of our constitutional framework. I can understand that the Bill has necessarily had to be kept simple to be acceptable to the Governments of 16 independent realms. I take this opportunity to commend the work of the New Zealand Government, who I understand have taken the lead in negotiating this text across the realms.
Let me comment briefly on three elements of the Bill. Central is the change to the existing system of male preference primogeniture; male heirs take precedence in the line of succession over their female siblings, regardless of relative ages. In this day and age, I do not think that most people would consider this to be fair. If in the future within the line of succession a younger son were to take precedence over an older daughter, it would seem to be at least controversial and at worst discriminatory, out of date and out of touch. To make this change now, therefore, strengthens the monarchy because it avoids any risk of such deep controversy.
However, there are of course consequences that need to be worked through. As many noble Lords have already mentioned, there are the rules governing royal titles and the much wider question of succession to hereditary peerages. I do not think that there is a problem with the Duchy of Lancaster, which remains with the sovereign whether male or female. As to the Duchy of Cornwall, I draw attention to the fact that the financial aspects of the duchy and parity were foreseen and are covered in the Sovereign Grant Act 2011.
On succession to hereditary peerages, the Government have stated that changing the rules governing succession to hereditary titles would be more complicated to implement fairly, which is probably an understatement but prudent. I think most people will understand that it is reasonable to ring-fence issues of royal succession from these difficult wider issues.
Clause 2 has been the subject of much of this debate. There is a balance to be struck between reducing discrimination against Roman Catholicism while at the same time upholding the position of the Church of England as the established church. On reflection, I support this change, and I declare an interest as a member of the Church of England and that my wife is Catholic. The law against the heir to the Throne marrying a Catholic has looked ever more anomalous in our increasingly multifaith society, as there is no such ban on him or her marrying someone from any other faith. Clause 2 removes this ancient bar, which might be seen at best as a historical curiosity and at worst as specific discrimination.
However, I would argue that there is a much more positive reason for welcoming this change. The legislation as it stands limits, in perhaps a significant way, the choice of a lifelong partner, husband or wife, for the heir to the Throne, who is destined to take on the onerous responsibilities of being the monarch of our country. Removing this limitation might make it just a little easier for him or her to find that ideal partner and a source of lifetime love and support in his or her difficult calling. That is in all our interests, and it is why I believe that, despite the difficulties that we have heard about today, this change strengthens the institution of monarchy and makes the world a little fairer.
This raises the question of whether the children of an Anglican-Catholic mixed marriage would be raised within the Anglican faith. I have listened with great interest to the most interesting contribution by the noble Lord, Lord Lang, on this. It is my understanding that over the years the Catholic Church has become more flexible on this issue. However, I draw attention to what my noble friend Lord Luce said: we need to look at whether ways can be found to ensure greater certainty that an heir to the Throne does not have to choose between the Throne and his or her faith. I am strengthened in the belief that this can be done because, as my noble friend said, there is already a precedent within the Royal Family of the children of an Anglican-Catholic marriage being brought up in the Anglican faith.
The third element of the Bill, the repealing of the Royal Marriages Act 1772, seems to be an obvious rationalisation, and I think is widely supported. Most of the discussion has focused on whether the sovereign's permission to marry should be required at all and, if so, why it should be the first six in the line of succession. I have heard the arguments that no one should be prevented from marrying in this way, but my reading of the Bill is that failure to obtain permission simply means that the person and the person's descendants are no longer in the line of succession, not that they cannot marry at all. I would argue that the retention of this element of permission is recognition that the choice of partner by someone who may become our sovereign is not simply a private choice; there are wider consequences for the Royal Family and for the country. To have that seeking of permission is what I would describe as something of a pause button, and it may not be out of place. I look forward to hearing what the Minister has to say about whether six is the right number of people who must seek that permission.
In conclusion, I look forward to supporting this Bill. It is an example of evolutionary and incremental constitutional change, and I welcome it. One of the great strengths of the monarchy is its ability to change and adapt and be part of the society in which it operates. The Bill strengthens the monarchy, an institution that continues to make a huge contribution to our national life.
Lord Lexden (Conservative)
Walter Bagehot wrote in 1867 that,
"one-half of the human race cares ... fifty times more for a marriage than a ministry".
So it came as no surprise at all when this coalition ministry decided that the immensely popular marriage of the second in line to the Throne should be followed by fundamental reforms of the monarchy, which had been under discussion for some years-indeed, as the noble Lord, Lord Luce, reminded us, for decades. The reforms overturn some of the principles on which our monarchy has rested, for the most part securely, since the Reformation nearly five centuries ago, principles strengthened and extended under the 1689 settlement. The changes are therefore of profound importance.
The coalition ministry is to be congratulated on securing for them the full support of the 15 other Commonwealth countries of which Her Majesty the Queen is head of state. However, little has been heard of the progress that the 15 are making in implementing these fundamental changes. Those who have been following events in the 15 do not report consistent vigour and diligence. Despite progress made in Canada, to which my noble and learned friend the Minister alluded at the outset, doubts have been expressed about whether the necessary assent will in fact be forthcoming from all of them. The Government's most laudable aim is that the new era in the world's greatest monarchy, which is now foreshadowed, should begin simultaneously in all 16 realms. It would be useful to hear from my noble and learned friend today when the point of common action envisaged by the Government is likely to be reached.
The merits of the reforms are well known and I shall not dwell upon them. An immense amount of preparatory work has clearly been done. Even so, the Government seem so far to have given insufficient consideration to some of the most significant and wholly predictable consequences that these major constitutional changes will have. The most obvious and predictable of them all involve the Roman Catholic Church. Other noble Lords have alluded to this issue but, in view of its importance, I would like to return to it, following meekly in the wake of my fellow member of the Constitution Committee, my noble friend Lord Lang.
No one who marries a Roman Catholic in future will be excluded from the line of succession, but no one who is a Roman Catholic can wear the Crown. Immediately, people ask the obvious question: if a marriage to a Roman Catholic is contracted in the direct line of succession or close to it, in what faith will the children of that marriage be brought up? Confronted with this question by your Lordships' Select Committee on the Constitution last month, Mr Clegg was totally untroubled, saying:
"The Catholic Church itself has not had a doctrine for many years obliging people who are of a mixed religious denomination to educate their children as Catholics ... There is a lot of flexibility and the Catholic Church has been very clear about that".
Mr Clegg is married to a Roman Catholic and might have been expected to have been absolutely accurate in his comments. In fact, as this debate has made clear, he was both right and wrong: right that the Roman Catholic Church is capable of exercising flexibility, but wrong that it has shed its doctrine on mixed marriages. As the Reverend Andrew Cole, to whom my noble friend Lord Lang, alluded, private secretary to the Bishop of Nottingham and Catholic chaplain to the University of Nottingham, stated in a letter to the chairman of the Constitution Committee, provoked by Mr Clegg's remarks, there remains,
"a presumption that the Catholic party in a so-called 'mixed marriage' will promise to have their children baptised and brought up as Catholics".
A blithely untroubled optimist such as Mr Clegg may happily assume that the requirement will be set aside in regard to the children of a mixed marriage in the line of succession to the Throne. In this crucial matter, helpful and reassuring comments have been made by the present Archbishop of Westminster. But Mr Clegg, the Archbishop and others speak only for themselves.
The greatest institution in our country-its 1,000 year-old monarchy-requires certainty to ensure its security and stability in the ages to come.
Baroness Falkner of Margravine (Liberal Democrat)
I am very grateful to my noble friend for giving way. I, too, was on the Constitution Committee when we deliberated this Bill. Could he tell us whether what he describes as the constraints on the children of Catholics being bought up-and the Catholic Church's perspective on that-would be different if the monarch was married to a Muslim, as is currently permissible? Muslim children are, likewise, expected to be brought up in mixed marriages as Muslims. So the anomaly exists in the case of other faiths, but perhaps not in the case of Catholics.
Lord Lexden (Conservative)
I thank my noble friend. This is a great matter. It is not possible for a child of a monarch to be eligible to take the position of the Supreme Governor of the Church of England if the monarch is a Catholic. That is why the issue arises in this connection and not in relation to other faiths.
I suggest a firm, binding and permanent declaration is needed from the Roman Catholic Church, recognising the unfettered right of a monarch, and of his or her heirs, to bring up their children as members of the Church of England for as long as the bar on a Roman Catholic monarch is retained.
I turn to a second set of utterly predictable consequences which the Government seemed singularly disinclined to address when the Bill was in the other place. They arise from the Bill's first provision that succession to the Crown shall not depend on gender. The monarchy enfolds a number of historic titles to which deep respect as well as great importance is attached. Here I follow my noble friend Lord Trefgarne and the noble Lord, Lord Carlile. The historic titles are central features of our nation's heritage: the Duchies of Cornwall, Lancaster and Normandy; the Scottish titles of Rothesay, Carrick, Renfrew, Lord of the Isles, and Prince and Great Steward of Scotland; and the title of Lord of Mann, under which the monarch is proprietor of the Isle of Man.
"When the Duke of Cornwall succeeds to the throne, the Duchy automatically transfers to the new heir. At present, however, the Duchy can only be held by a male".
As Mr Ben Wallace, who contributed so powerfully to the debates on the Bill in the other place made clear, the Duchy of Lancaster descends in the male line if there is a male child of a monarch to whom it can pass. Great properties and wealth are attached to both duchies. Both were originally established, I understand, in the Middle Ages under charters granted in Parliament.
As is well known, Scotland provides much more readily for female succession. Can all the monarchy's titles in the peerage of Scotland be held by a woman with the principle of male primogeniture abrogated, along with the revenues that may be attached to them? What about the historic title, Lord of Mann? The people of the Channel Islands will want to know whether there are any implications of change for the Duchy of Normandy. So far the Government have shown themselves largely indifferent to these vital questions. In the closing stages of debate on this Bill in the other place, Mr Tom Brake, Deputy Leader of the House, said:
"Titles are a matter for the monarch. Because we are restricting the scope of the Bill, we can move forward".-[Hansard, Commons, 28/1/13; col. 730.]
I suggest that we cannot move forward on that basis. The great titles in question are matters for Parliament and the nation as well as for the Crown. Authoritative advice is surely needed on the full implications that Clause 1 of the Bill will have for these historic monarchical titles. The country is not short of learned peerage lawyers; should they not now be consulted? For in all this is there not a clear principle to be identified and upheld: that any woman who is first heir to, and then succeeds to, the Throne as Queen of our country under the terms of this legislation must possess and enjoy all the titles, dignities and honours that would be invested in a King? Otherwise, true gender equality will not be achieved.
The third and final consequence of this legislation on which I would like to touch differs from the other two in that it has not so far been evaded or left in a vague condition by the Government. Here again, I follow my noble friend Lord Trefgarne. As soon as the Government made clear their intention to set aside the principle of male primogeniture in the royal succession, they were at once asked whether this hallowed principle would also be endangered in respect of hereditary peerages. They replied that this was an entirely separate issue, which they had no plans to address. That at once raises the spectre of acute disagreement at the centre of the Royal Family itself. It would be wholly unsurprising if, in the years to come, Lady Louise Windsor, the first-born child of the Earl of Wessex, did not view with perfect equanimity the prospect of the succession of her younger brother to the earldom when the principle of male primogeniture had been set aside in the main line of royal succession. The wider ramifications are already obvious. This legislation has given determined ladies of blue blood and their male supporters the opportunity to secure greater publicity than ever before for the incompatibility between the principle of the equality of the sexes and the rules of succession attached to the overwhelming majority of hereditary peerages.
The Government cannot dispose of the matter merely by saying they have no plans to address it. The campaign for change which is now well under way will have been heartened by Mr Clegg, who said during his speech on Second Reading in another place:
"Personally, I am sympathetic to that reform".-[Hansard, Commons, 22/1/13; col. 212.]
Elements of this legislation could introduce serious instability in the monarchy. The very existence of this legislation has already introduced it in the hereditary peerage.
I am not arguing against the principal aims of this legislation, which have such widespread political and public support. However, because of the far-reaching nature of the changes that it will make to our monarchy, the legislation needs to satisfy two clear questions: will it stand the test of time; and will it strengthen the institution that stands at the very centre of our national life? Unless both questions are satisfactorily answered, the Government will risk the charge that they have sacrificed tradition to modernisation instead of reconciling them sensibly and sensitively.
Lord Lucas (Conservative)
My Lords, I wholeheartedly welcome every aspect of the Bill. My peerages currently descend on the same pattern as the monarchy. My grandmother, who held the titles, was a campaigner for gender equality, as was my mother, who held the titles after her, and, indeed, my father, so it is not surprising that I think that it is wonderful to have lived the past 60 years in a period of such change and progress. We clearly have some way to go yet and I do not think we have yet realised what the full consequences of gender equality will be, but we have made great progress. It is wonderful to be standing here at last contemplating the change to the succession of the Crown, which means that our head of state will now enjoy the same gender equality that the rest of us expect in the course of our ordinary lives.
It is important to focus also on the tidying up that follows this crucial change. Generally, it is never good enough to think that we have got 80% of the way on gender equality and we should be satisfied with that. The Church of England will be aware of how difficult it is to tidy up some of the difficult corners of this matter. None the less, we must do it because until the symbolism of male dominance is gone we will not have granted gender equality.
Several of my noble friends have touched on the subject of the hereditary peerage. I have a Bill on this subject sitting in the Printed Papers Office. It will not be debated in this Session but I hope that we will get around to it in the next. This is a difficult area, as several noble Lords have mentioned, not least because one is dealing with a succession of expectations. This Bill is well timed for the monarchy because we know exactly what the expectations are, but you cannot spread that over 1,000 plus hereditary peerages, let alone the baronetage, which probably ought to be wound up in it too. There are also in many cases, but, sadly, not mine, substantial properties tied up with titles. One does not want to do something which means that those diverge any more than we want the hereditary titles to diverge from the monarchy.
I suspected that we would reform this House a couple of years after 1999. I have been proved very wrong on that and perhaps the present system will see me out, but eventually we will get around to it. Even if hereditary Peers have no place in this House as of right, it is still a considerable thing to be called "Lord" or "Sir" because so many people now have these titles through their own virtue. For that matter, I imagine that it is a great thing to be called a duke, too. It is useful. It opens doors. On one occasion my wife rang The Ivy to see whether there was a table. She used her maiden name of Rubinstein and they said no, so she got her assistant to ring up five minutes later and ask whether Lord Lucas might have a table. The answer was yes, so titles, even those which are unearned, are not without consequence in this world. They are part of the historical pattern of the nation. As someone who enjoys having a title but also appreciates that in others, I think it is a nice part of the fabric of the nation which should not be largely restricted to men. This is a reform which we should seek to make. The imperfection in the Bill, in that it does not deal with the royal hereditary titles, gives me hope that the Government may find the motivation to support my Bill, or something like it, in the next Session.
Lord Berkeley (Labour)
My Lords, I am pleased to be able to participate in this Second Reading debate because it is an important Bill. I support all its clauses, which I shall consider, but I am afraid, as many other noble Lords have said, the Bill needs to go a bit further. I am pleased that the Government have allowed us proper scrutiny, with Report and Third Reading in addition to Committee, if we need it.
I should first say that whatever we discuss in the longer term, as my noble friend Lady Hayter said, the Queen has a fine record in what she has done and does, but that should not prevent us from having a full discussion about the role of the monarch and the established church. In addition to the contents of the three main clauses, I have concerns about the requirement to seek approval of certain legislation from the Queen or the Prince of Wales if it affects their private interests. I have a problem with why they should get that consideration but other people with private interests do not. It is reported-because one never officially hears about these things-that the Queen actually blocked a Bill some years ago that would have required Parliament to vote before the Government declared war. That is a serious issue; the Bill is one of the few that clearly needs the Queen's approval, and that is appropriate.
However, as regards the role of the monarch and a constitutional monarchy, I have always had worries about why so many members of the Royal Family, 12 of them, get free travel around the country-usually in a helicopter because we are told that it is needed for security and they have to get to the next fete opening more quickly. From what I remember from when I was a kid, the King, the Queen Mother and their two daughters when they grew up were the only ones who performed any serious royal duties. I am sure that they had their travel paid for, but is it right that the taxpayer should fund all this? I make the comparison with dear Queen Beatrix of the Netherlands, who announced her retirement and abdication last week and is regularly seen going around Amsterdam on a bicycle, whereas our lot, depending on their status, have either five or three motorcycle escorts. I can understand why the security people recommend that because it means more jobs for them, but is it all necessary, or is it hyped up a bit?
I turn to the succession issue in Clause 1. This is clearly a good thing. I am not going to get involved in the debate about the succession to peerages, although some of my cousins were splashed across the Sunday Times last weekend-that is fine. I do not know whether the succession of a peerage goes along with succession of property; I am no expert. However, the noble Lord, Lord Lexden, mentioned the question about the Duchy of Cornwall and whether a female heir would become the Duchess of Cornwall and the Princess of Wales. The Duchy of Cornwall is a bit of a money-spinner because its annual accounts for 2011-12 show a total income of £26.5 million, of which £18.3 million is surplus, distributable to His Royal Highness. That 70% profit in any other business would normally attract a very large amount of tax, unless one was on a tax fiddle-which I am sure does not apply in this case. However, it is questionable why anyone in the Royal Family should have this benefit when other landowners do not. There is a strong argument for merging the duchy with the Crown Estates and ensuring that the money allocated to the monarch for public duties also covers the eldest child. The only other organisation that I can think of that makes such hefty profits is the Macquarie Bank, which we mentioned in a debate in your Lordships' House last week. There is time to look at issues such as that and perhaps make proposals in the long term.
In terms of the succession, I hope that gender does not matter, but there has been the resignation of the Pope this week. It made me think of the story of the female Pope, if it is true, back in 800 AD. She was found out only when she had a baby that fell from underneath her surplice or cassock, or whatever it is called. Ever since then, there has apparently been a medical method of checking whether the Pope is a man or woman. I do not think that they have found any women since then. I do not even know if the story is true, but in Tudor times it was normal to have a Minister present when the Queen had a baby, just to check that it was in the proper line of succession. It may well be, if we are that keen to make sure that one inherits after the other in the proper succession, that the modern equivalent would be a DNA test on the heir to the throne before they succeed. As a noble Lord said earlier, we need certainty, and that would certainly confirm the lineage of the prospective heir to the Throne.
As to whether the monarch can marry a Roman Catholic, I have listened carefully to the debate and I really cannot see what difference the religion of the head of state makes. We can consider the latest surveys of the proportion of people who go to which church and so on, but, as the noble Lord, Lord Maclennan, reminded us, there are two established churches in this country-the Welsh have been sensible and do not have one, as far as I know. It is quite possible to separate the head of the Church of England from the monarch. An election could be interesting if the church decided to do that, and I suppose that the alternative is the Catholic way of going into a huddle and then producing a smoke signal when you have chosen someone. However, it does not make any difference to the monarch or the churches whether they are separate.
Then there is the question of whether the monarch can divorce. What would happen? Would they have to give themselves permission to divorce and remarry? It is an interesting question and I am sure that the Minister will be able to give me an answer. It is pretty odd that the whole edifice of the monarch and the constitution relies on who they are permitted to marry. What happens if the heir becomes King or Queen and then decides to get married? I suppose that he or she would have to take the advice of the Prime Minister of the day in considering whether the future bride or bridegroom was suitable and, presumably, came from the right background and religion, and was not someone who was not approved of. We are getting into difficult territory here. I would not dream of moving an amendment and dividing the House on such a matter at this stage, but I hope that we can debate this issue a bit longer and harder.
What are the roles and responsibilities of the monarch? What is their ability to interfere informally or formally with government? We are well aware of the infamous spidery handwriting of the letters that Prince Charles is alleged to have written. That is not the right way for the Prince of Wales to learn how to be a monarch who does not interfere in the day-to-day decisions of the Government. We must sort out the difference between private and public responsibilities. Who owns what? Who owns all those palaces and pictures? Is it the monarch as a private individual, or is it the state, with the monarch there for the duration of his or her reign?
In conclusion, the changes I have talked about are necessary to bring the monarchy and the constitution into the 21st century. They could all happen and it would not be the end of the world or of this country. I look forward to further debates on the issue.
Viscount Astor (Conservative)
My Lords, I suppose that I should declare an interest as a member of the Church of England who is married to a Catholic. Perhaps I should also declare that my eldest child is a girl who was followed by two boys. She announced that she would follow closely the proceedings in your Lordships' House-to the slight consternation of her two younger brothers.
As has been explained, we live in a country where two powers are merged in the Crown: the head of state and the Supreme Governor of the Church of England. The Queen is not the head of the Church of Scotland but appoints the Lord High Commissioner to the General Assembly of the Church of Scotland. My worry is that the long-term effect of the Bill could be the disestablishment of the Church of England.
While many in the House will support the right of the first born to inherit, the Bill has constitutional consequences. We in this country have a long and distinguished history of having female sovereigns. Some titles in your Lordships' House already pass through the female line. However, the Bill goes much further. While it prevents a person of the Roman Catholic faith acceding to the throne, it allows the heir to the throne to marry a Catholic.
The first issue one must address is: why rush this through Parliament? The Select Committee report pointed out that the retrospective element of the provision obviates the need for fast-tracking. The Minister in another place defended fast-tracking as a pragmatic solution, but, as my noble friend Lord Trefgarne pointed out, even after the passage of the Bill, it will not come into force until, under Clause 5, an award is made by the Lord President of the Council. Why does the Deputy Prime Minister want to retain this power? I presume it is because of possible delays in Commonwealth Parliaments. Should not the Bill come into force only after the countries involved have all passed their retrospective legislation? What happens if one Commonwealth country does not pass the legislation? Do we go ahead without its consent? If that is the case, it should be set out clearly in the Bill why that should or should not come about. I am confused about how the Bill will affect the Channel Islands and the Isle of Man. I hope that the Minister will say whether they are included. I am afraid that I am not good enough at looking at Bills to discover whether they are.
As I said, the Bill will allow the heir to the Throne to marry a Catholic but not to maintain the succession if they bring up the child as a Catholic. The problem is that we know that, should the heir to the Throne marry a Catholic, they would be required under the Catholic Church's canon law to promise to try to bring up their children in the Catholic faith. That is absolutely clear from talking to any member of that faith. Should that happen, it will cause upset and distress to all those involved. Should the heir to the Throne wish the child to be brought up a Catholic, either we will have to disestablish the church or the child will lose the right to succeed. I am sure that noble Lords can imagine the outcry there would be in this country if the then Archbishop of Canterbury tried to stop the heir to the Throne succeeding because he or she was of the wrong religion. It simply would not make sense in modern Britain-in particular as, under current law, if they were Jewish, Hindu or Muslim, they would be allowed to succeed, because the Act refers only to the Roman Catholic Church. That does not make any sense.
I have always pressed for other faiths to be represented in this House. It is sad that they are not. Our debate would have been enlightened by having a Catholic bishop or even a cardinal speaking in your Lordships' House. I have always thought it a matter of regret that the Catholic Church in this country has always turned down the offer of being represented in your Lordships' House. Of course, the Church of Scotland is not represented here, nor the Church of Wales, which was disestablished in 1920-and there has been no established Church in Northern Ireland since 1871. It is also possible that a future monarch might be of a different faith altogether.
I turn to the clause stating that the monarch must still approve the marriages of the first six in the line of succession. The only justification offered by the Minister in another place was that it was not an arcane provision but a pragmatic one. She never explained why it was necessary or desirable-or indeed pragmatic. I wonder how many noble Lords have noticed that when Ministers use the word "pragmatic", it is often because they cannot think of any other justification for what they are saying. It has become government Newspeak. The only argument offered by the Minister in another place was that the same rules apply in Norway, Sweden, Spain and the Netherlands. This was an interesting introduction of EU-or rather European, because Norway is not a member of the EU-convention into English law affecting the monarchy.
When I first looked at the Bill, I was against it. I thought that it was unnecessary. However, I have changed my mind. I worry about the disestablishment of the church because I see the Bill as a failed opportunity for Parliament to properly debate the merits of the established church in this country-particularly in the light of when the Bill will be enacted. If we do not debate the issue, it will surface when we least expect it. It will be a ticking time bomb for the future. That would be detrimental not only to the church in this country but also possibly to the monarchy in future.
Lord James of Blackheath (Conservative)
My Lords, 325 years ago, the streets were full of a tumult of people celebrating the fact that the previous day, William and Mary had jointly accepted the Throne of England and committed to supporting the Protestant religion as a right of the people. I do not come today to say that I disagree with the principles that the Bill seeks to establish. However, as we have heard this morning, it needs an awful lot of tidying up on many issues. I have serious doubts about whether we in this House have the legitimacy to give a decision. I believe that we would be acting illegally and in contravention of our oath on joining the House if we were to consent by a vote to this legislation.
My reasoning is that I believe very strongly that we have been caught out-as I always feared that one day we would, although no other such Bill has come before us-by the fact that we are being given a delegation of the prerogative of the Crown, which puts the burden on us to decide whether this is in breach of the coronation oath. I submit that it is, and therefore that any noble Lord who votes for the Bill now should walk through the Lobby and out of the front door and should never return, because we will all have automatically disqualified ourselves under our oath of allegiance to support the monarch in the discharge of their obligations under the coronation oath.
Over the past couple of weeks, I asked various notable constitutionalists and legal minds around the House for their reaction to this idea. I find it significant that only one of the six is in the House today. I got a very interesting bunch of answers. Two Members of the Privy Council said almost exactly the same thing: "Good gracious, old boy, what a question. We have never been asked that. Nobody has ever given us any advice on it, so I suppose it must be all right". That is not a good enough basis on which to proceed with a Bill such as this.
I went to two notable constitutional academics. One of them was my whip, my noble friend Lady Perry. She said: "You've got it quite wrong, old boy. It's absolutely not like this. The Act of Settlement is the only thing that we need worry about, and we can alter it any time we want. We need have no concern about what is in the Declaration of Rights". The second academic told me: "She's completely wrong. It's all about the Declaration of Rights and not about the Act of Settlement at all".
On further reflection, and having taken further advice, I decided that they were both wrong-and I will show why in a moment. I sat down to work out what would be the reasons why we would receive a delegation of the royal prerogative. At this point, another noble Lord I put it to said: "Yes, you are definitely going down the path of treason". I do not wish to commit treason, but the situation at the moment with the Bill is that if we are to proceed, we need to know what we are doing in the context of the delegation of the prerogative. I can think of only four reasons why we might have it, and this is where I am treasonous. The first, I believe, is that Her Majesty might very well have decided that this was an issue of such public concern and interest that it should not fall to any member of the Royal Family to give an opinion on it themselves. They are too closely involved. They would rely on the wisdom of Parliament to guide the interest of the people as a whole by giving its opinion on it. That would be fine. That is not in any way exceptional.
Lord Elton (Conservative)
I have stood at the Dispatch Box and signalled the ceding of the royal prerogative on more than one occasion. It actually happens quite often; it is just that people do not notice.
Lord James of Blackheath (Conservative)
I am grateful for that intervention. The fact that that would apply in this case should be read into the record of Hansardbefore we are asked to vote. It should come from the Leader of the House. We need that on authority.
There are other reasons why this might be. It might be that the Majesty of the Crown is concerned that this is already seen to be in breach of the coronation oath and it is wondering whether it can avoid that problem by having us give an assent that overrides that breach of the coronation oath.
The third possibility is that the Majesty of the Crown simply does not like this at all and is relying on our good sense and common sense to throw it out. The fourth possibility is that the Majesty of the Crown really does not mind and thinks that it should leave it up to us to decide. We need clarification about the reasons why we have the delegation of the prerogative in this case.
In all of that, I have been making the assumption that we are talking here about the coronation oath. But since I asked my questions, I have found that there is another oath that preceded the coronation oath, which applied to every monarch in the 20th century. It is only 54 words long and I would like to read it to the House. This was signed on the morning that Her Majesty returned from Kenya. She was rushed to Clarence House in order to sign a proclamation oath so that officials could get on with what was now overdue-to get the royal proclamation of the new monarch before darkness set in in London. It states:
"I, Elizabeth do solemnly and sincerely in the presence of God profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the throne, uphold and maintain the said enactments to the best of my powers according to law".
That is 54 words. I wish noble Lords would tell me which part of the Bill does not shred that oath.
As I said, 325 years ago, William and Mary accepted the throne. The circumstances under which they did so have a direct bearing on where we are today. It is a vexed question for me. Are we concerned with the Act of Supremacy or the Declaration of Rights? I am convinced that it is the Declaration of Rights. Every aspect that is supported by that oath is provided for in the Declaration of Rights, not the Act of Supremacy. Therefore, we need to be sure that we are setting out to amend the right bit of legislation and the right Act. I think that we have the wrong one.
William arrived at Brixham on
Lord Lang of Monkton (Conservative)
I am grateful to my noble friend for giving way. I think he is mistaken. I think he is building a house of cards. Even the members of the convention on the Declaration of Rights did not believe that it was legally binding. That is why they brought forward in 1689 the Crown and Parliament Recognition Act. That shows that Parliament did not consider itself bound by the Bill of Rights, which in the first instance had enshrined the Declaration of Rights. It placed it on an unimpeachable legal footing. There can be no doubt that all the matters that were covered by the Declaration of Rights were subsequently properly enshrined first in the Bill of Rights and then in the Crown and Parliament Recognition Act 1689.
Lord James of Blackheath (Conservative)
I am grateful for all helpful contributions.
The Bill of Rights was read to William and Mary by Mr Joe Browne, who was then the Clerk of the Parliaments, or rather he should have been reading it to them but he had sent his footman down with a sicky in the morning to say that he was feeling too unwell and could not turn up. He subsequently said that it was because he felt an irritation at the back of his neck where an axe would come. Similarly, the Archbishop of Canterbury declined to come, and proceedings were handled by the Bishop of London.
On the day in question, when it had been read through, William stood up and said:
"This is certainly the greatest proof of trust that you have in us that can be given which is the thing that makest us value it the more and we thankfully accept what you have offered".
At that point, the Marquess of Halifax knelt down and gave the crown to him. Thereafter, the sackbuts and cornets of Parliament went out with armed guards to take the Declaration of Rights around the city, where the proclamation was read in four places and the next day was announced as a public holiday.
It seems that we are seriously confused as to which bit of the past constitutional history of this country we are trying to alter and what our rights are in so doing. None of the constitutional papers or others that have been given to us even begins to approach definitive advice on that.
I return to my initial point. I believe that we are not doing as we are required to do, which is to support the Crown in the decisions that they have to make, if we pass something that may still be a breach of that oath that was signed by Her Majesty on her proclamation day back in 1962.
Lord James of Blackheath (Conservative)
1952, sorry. We have a very serious question now as to the legitimacy of the action that we are taking in this House. I am sorry if that causes disruption and dispute but I really believe that we have a problem here that has not been adequately addressed. It is not reasonable that we should not have better, stricter and further guidance from the Privy Council, the Clerk of the Parliaments and the Constitution Committee to give us a very clear way forward.
Lord Marks of Henley-on-Thames (Liberal Democrat)
My Lords, may I say how much I welcome this Bill on behalf of these Benches and on my own behalf? Our present law, whereby an elder daughter is displaced as heir to the Throne by the birth of her younger brother is an affront to women throughout this nation and the Commonwealth. Of itself, it damages the identification between the monarchy and the people, particularly women, as the noble Baroness, Lady Hayter, movingly pointed out. I am delighted that we are to change it. It is also a great tribute to the Commonwealth as an institution that we are legislating for this change in a co-ordinated way in all 16 of Her Majesty's realms.
Perhaps I may address for a moment the important constitutional point made by the noble Lord, Lord James of Blackheath, who has explained why he believes that this Bill is a breach of Her Majesty's coronation oath and therefore, for us, a breach of our oaths of allegiance. As I understand his argument, he believes that because the Declaration of Rights in 1688 obliges the monarch to reject Roman Catholicism, it follows that she would be in breach of her oath by assenting to this Bill. In my view, the noble Lord's argument gives insufficient weight to the doctrine of the sovereignty of Parliament and to the general rule that Parliament cannot bind its successors. The Declaration of Rights, made on the arrival of Prince William and Princess Mary in the kingdom, did not of itself have the force of law, as has been pointed out. It was enacted as an Act of Parliament as the Bill of Rights in 1689 and has been an important part of our constitutional settlement ever since. It is true that it was expressed as intended to remain the law of this realm for ever. However, the doctrine that Parliament cannot bind its successors was already well established by the late 17th century. In fact, the Bill of Rights has already been amended on a number of occasions. In the context of this Bill, the most notable amendment was made by the Act of Settlement 1700, just a decade or so after the Bill of Rights-
Lord James of Blackheath (Conservative)
My Lords, I had anticipated the argument concerning the alteration of the Declaration of Rights, but I think that the only occasion on which it has ever actually been amended was in 1825 when it was found that there were insufficient jurors available to fulfil the obligation to run the courts. On that occasion the threshold for serving on a jury was reduced to include £10 rental holders. Nothing else has been done.
Lord Marks of Henley-on-Thames (Liberal Democrat)
My Lords, I am afraid that I disagree with the noble Lord because the Act of Settlement expressly changed the line of succession by introducing the Electress of Hanover, who was a granddaughter of James I and the mother of George I, into the succession just 10 years or so after the Bill of Rights was passed. A further amendment to the Bill of Rights was unwittingly mentioned by the noble Lord in the form of the Accession Declaration Act 1910 which brought in the very declaration he has read out to noble Lords. It changed the coronation oath which had been prescribed by the Bill of Rights. The present declaration, which he read out, reflects the present position: the sovereign promises to uphold only the enactments that procure the Protestant succession to the Throne. There is nothing inconsistent in this Bill with that declaration, and I have absolutely no doubt that this Parliament is as entitled to enact this Bill now as was the Parliament convened in 1689 to enact the Bill of Rights.
Perhaps I may mention the arrangements made for succession in the other royal houses of Europe. The position is as follows. Belgium, Denmark, Luxembourg, Norway, Sweden and the Netherlands all adhere to equal primogeniture, with no male preference. Indeed, in Sweden the heiress apparent is a woman, Crown Princess Victoria, who will become Queen of Sweden in due course. She was born in 1977 as the eldest child of King Carl Gustav. Her younger brother Carl was born in 1979, and Princess Victoria only became heiress apparent again in 1980 as the result of a similar change in the law to that which we are enacting now. I suggest that this demonstrates that it is plainly preferable to make such a change as this in advance, if we can.
Only Monaco and Spain have male-preference primogeniture as we do at present, although in Monaco the next in line is actually a woman, Prince Albert's elder sister, because Prince Albert has, as yet, no legitimate children. Spain also plans to change its rules of succession in the same way as we are now. This will entail a constitutional amendment which needs to be passed by both Spanish Houses of Parliament with a two-thirds majority in each House, and then it would be put to a referendum. This has not happened yet, perhaps owing to the requirement in Spain that when a major constitutional change is passed, Parliament must be dissolved and new elections called. However, the proposed change in the law enjoys widespread public support in Spain, notwithstanding the difficulty caused by the fact that Juan Carlos's two eldest children are women, and it is their younger brother who is currently his heir.
Without getting too technical, Liechtenstein has an old system of succession called agnatic primogeniture which completely excludes women from the order of succession. This was specifically criticised by a United Nations committee looking at gender equality in 2007. Luxembourg used the same system until June 2011, when equal primogeniture was introduced. As here, this change made no difference to the immediate order of succession, so Luxembourg is a good example of a country which has reformed its rules even more significantly than we are doing now. All this goes to show that the present succession arrangements for our monarchy and our Commonwealth are well behind the times.
I also welcome the end of the ban on the monarch and his or her heirs to the Throne marrying Roman Catholics. One can see that the monarch's position as Supreme Governor of the Church of England suggests, even if it does not dictate, certainly for the time being, that he or she must be a Protestant. However, there can be no justification for any religious discrimination going beyond that requirement, and the Bill rightly gives effect to that principle. Clearly, marriage to a Catholic would present a monarch or an heir to the Throne with a stark choice, a difficulty even, in respect of the children. However, my view is that the approach of my noble friend Lord Lang of Monkton sacrifices the principles of tolerance and understanding that are enshrined in this Bill on the rather hard altar of certainty and stability, as he put it. For myself, I prefer the approach of the noble Lords, Lord Luce and Lord Janvrin, which I believe may in time lead to an accommodation being reached on this issue. I have to say that the intervention of my noble friend Lady Falkner on my noble friend Lord Lexden raised an interesting point. She pointed out that there is no bar to the monarch being married to a Muslim and that there are similar rules for Muslims on the upbringing of the children of such a marriage as there are for marriages between Protestants and Catholics. Exactly the same issues would arise with such a marriage as would arise with a marriage to a Catholic. That simply highlights the anomalies of the present rules, the fact that they are rooted in history, and the need for these changes to help our country to continue to evolve in a tolerant and non-discriminatory way.
Before I finish, perhaps I may also say what a pleasure it is for those of us who value the continuation of this United Kingdom to see such a distinguished Scottish law officer as my noble and learned friend the Lord Advocate steering this important constitutional measure through your Lordships' House.
Lord Thomas of Swynnerton (Crossbench)
My Lords, even as the 18th speaker in this distinguished and very interesting debate, I have an observation to make about each of the questions at issue. The first is what happens when an heir to the Throne marries a Catholic. I believe that that is the most difficult question because, as the last speaker pointed out, it will cause difficulties. However, I would suggest to noble Lords that they are not impossible to overcome. Perhaps we should approach the issue in the spirit of the speech of the noble Lord, Lord Luce, who pointed out that it would be desirable for discussions between the Church of England and the Church of Rome to be held now on what might be done in those circumstances.
The second question relates to the number of people who have to ask permission to marry if they are close to the succession. The noble Lord, Lord Carlile, thought it intolerable that anyone should have to ask permission as to whom they should marry, but the noble Lord, Lord Lang of Monkton, in a far-reaching and important speech, thought that 12 would be a good limit. I am also of that point of view. However, perhaps we could arrange a compromise whereby the number of people to consult relates to the number of descendants of the reigning monarch. Thus, if, for example, as is now the case, the monarch has eight grandchildren, there should be eight persons who should ask permission to marry X or Y. Given that there have been many occasions in the past when monarchs have had many children-Queen Victoria had nine; it is difficult to remember quite how many King George III had but it was certainly more than that-I feel that it would be desirable to consider a figure larger than six.
My third point concerns the gender of the heir to the Throne. Of course, this is an appropriate change and it takes into account all the attitudes that enlightened people have these days. However, I think it is fair to say that, had we done this in the past, we would have lost a certain number of important monarchs. I do not suggest at all that we have had bad female monarchs, but we have had monarchs who would not have succeeded in the circumstances that are now being suggested. For example, King Edward VII was the second child of Queen Victoria. Both Queen Victoria and Prince Albert would very much have preferred their eldest daughter, Vicky, to be the heir to the Throne, and that is one reason why they treated Bertie so badly in the early days. It is fair to speculate what would have happened if King Edward VII had not been King. I can certainly suggest that the entente cordiale, which he so greatly and beneficially influenced, would not have come about had it been up to Vicky to arrange it. Of course, she would not have married a German emperor if she had been the heiress but, still, it is most doubtful whether she would have gone over to Paris and had the benign and creative relationships which King Edward VII had.
Going back in history, as the noble Lord, Lord Trefgarne, pointed out, King Henry VIII was not the eldest son. In fact, he was the third child. He had an older sister, Margaret, who became Queen of Scotland. She married the King of Scotland, who died at the Battle of Flodden-a battle whose memory we shall no doubt be commemorating at an appropriate point in the next few months. Although I hesitate to suggest someone so far back in history, King Alfred was the younger brother of Ethelswith, a lady who would have taken the position he had if we had had in 860 the rules that are now being advocated. I suppose that that must be dismissed as a joke. Nevertheless, we are changing something that has been in existence for many generations, and it is as well to bear that in mind.
Finally, we owe it to the noble Lord, Lord Marks, to recognise his contribution to our discussion, in which he pointed out what has been the case in other European countries. I think I am right in saying that he was completely correct about Spain, but there is one other element that should be mentioned as we discuss the relationship between what we are planning and the hereditary peerage. A gender change in the hereditary peerage in Spain has now been accepted, so that a duke has to accept that his daughter rather than his son will succeed him if she happens to be the elder.
It has been a pleasure to take part in this debate, and I have listened to many admirable speeches.
Lord Northbrook (Conservative)
My Lords, it is a pleasure to follow the noble Lord, Lord Thomas of Swynnerton. Living near Winchester, I have learnt a new fact about King Alfred, and maybe more will be learnt when they dig where they think he is buried, somewhere on the outskirts of Winchester, following the success of the Richard III operation.
As other noble Lords have said, the Bill makes three key changes to the law governing who can be next in line to the Throne. I approve of the legislation in principle and declare an interest as an hereditary Peer with three daughters who believes that future equality legislation should extend to daughters being able to inherit a title that otherwise might die out. However, the Government in their wisdom have decided that this Bill should be rushed through Parliament as though it were anti-terrorist legislation.
In 2009, the House of Lords Constitution Committee reported on fast-track legislation, identifying potential difficulties raised by this approach and recommending that better information be provided by the Government to explain and justify the fast-tracking of legislation. The Constitution Committee also reported on the Succession to the Crown Bill in January 2013.
In brief, I shall highlight the most important issues that the committee identified for the Government to explain their position. First, why is fast-tracking necessary? The Government argue in the Bill's Explanatory Notes that at the 2011 Perth Commonwealth Heads of Government Meeting they undertook for this to be the first realm of which Her Majesty was head of state to introduce legislation once agreement had been reached between all of them. Given the effort involved in the other states putting themselves in a position to give formal consent:
"In the Government's view it is now incumbent ... to act quickly to introduce legislation which accords with what has been agreed".
In addition, the Government stated that, following the announcement that the Duchess of Cambridge was pregnant, they believe,
"there is a general consensus that the law should be changed as soon as possible".
Why the haste when the legislation is not to commence immediately? Not only do many of the Commonwealth Governments have to pass the law through their own parliaments, but I do not think that anyone has mentioned so far that in quite a few countries, such as Australia and Caribbean countries, referenda will also be necessary to approve the legislation. The Government's case for fast-tracking is also weakened as Clauses 1 to 3 have elements of retrospectivity.
Secondly, the Constitution Committee asks what efforts have been made to ensure that the amount of time made available for parliamentary scrutiny has been maximised. The answer here seems to be none. The Government argue that they could not foresee the exact time when all the realms would be able to move ahead. This has come relatively late in the Session and so the time available is limited. However, there has been much debate about the issues, which are well known. The Explanatory Notes say:
"The Government believes that a broad consensus has been reached on the content of the Bill".
The overall conclusion of the Constitution Committee's 2013 report is as follows:
"In our view, the use of fast-track legislation, while it may be necessary for reasons of emergency and overriding public interest, will rarely, if ever, be appropriate ... for reasons of, in the Deputy Prime Minister's words, 'pragmatic business management'".
The fact that legislation is short or that the Executive do not envisage it being controversial are not in themselves reasons to set aside the usual parliamentary scrutiny of a Bill. In parliamentary scrutiny issues can emerge that had previously been overlooked or hidden.
The proceedings in the other place were ridiculously rushed. The Minister has said that there has been more than sufficient time to discuss the amendments chosen. There were only four amendments: two in Committee and two on Report. Second Reading and Committee took only five and three-quarter hours on one day; Report and Third Reading took two hours and 10 minutes on the second day. This is no way to discuss important legislation.
A major issue that emerged in the other place concerned the religious beliefs of an heir to a monarch whose wife was a Catholic. Jacob Rees-Mogg put the matter well. As the noble Lord, Lord Lang of Monkton, and others have said, Canon 1125 of the Roman Catholic Church states specifically that the bishop, who can give a dispensation for a Catholic to marry a non-Catholic, is not to do so unless,
"the Catholic party is to declare that he or she is prepared to remove dangers of defecting from the faith and is to make a sincere promise to do all in his or her power so that all offspring are baptized and brought up in the Catholic Church",
One possible scenario in this case would be to seek papal dispensation in respect of a child's upbringing. Is this reliance on a positive response from the Vatican a satisfactory way to guarantee the royal succession? I agree with Mr Rees-Mogg that in these circumstances-this may answer the question put earlier by the noble Lord, Lord Deben-the legislation should be amended so that a regent should be appointed under the Regency Act 1937 to take on the role of Supreme Governor of the Church of England.
"mixing two things here. The restriction of who must seek the permission of the monarch to marry to six individuals is separate from the issue of whether the heir to the throne can marry a Catholic just as he or she can marry someone of other faiths".
However, the Constitution Committee says:
"conceivably the Monarch could be expected to decide whether or not a person high in the line of succession should be allowed to marry a Roman Catholic".
The 2013 report of the Constitution Committee highlights another area. It says:
"There is a lack of explanation in the explanatory notes for retaining a requirement of consent to certain royal marriages. On whether clause 3 is compatible with Convention rights (the right to marry), it is simply stated that 'in the Government's view there is a public interest in having special provisions'; that the clause has 'a legitimate aim' and is 'proportionate'".
Another issue highlighted by the Constitution Committee, which has been mentioned by other speakers, arises with the Duchy of Cornwall,
"which provides the source of revenue for the heir apparent to the throne. When the Duke of Cornwall succeeds to the throne, the Duchy automatically transfers to the new heir. At present, however, the Duchy can only be held by a male. If it is to continue to be held by the heir apparent to the throne, the Letters Patent for the Duchy will need to be altered".
Finally in this area, the Constitution Committee focuses on the effect on hereditary peerages. When this Bill goes through, the European Court may take a view on female succession to peerages. I would support female inheritance but only if there were no male heirs at all.
I was going to bring up various points made by Mr Graham McBain, a lawyer well known and respected by the noble Lord, Lord Carlile of Berriew, but the noble Lord has already covered most of my ground. I ask the Minister to answer the queries put by the noble Lord, Lord Carlile, about the problem of the Roman Catholic Relief Act 1829 and possible faults in Clause 3 regarding the number of six persons, and to emphasise that even before the Act of 1772 the sovereign had a right under common law to prevent marriages of other members of the Royal Family, such as the Queen Mother, from remarrying. Thus this Bill should abolish the right in common law.
One of Mr McBain's concerns that was not mentioned by the noble Lord, Lord Carlile, is the esoteric topic of the Treason Act 1351, referred to in the schedule. I will spare your Lordships the unpleasant details of what is being amended. Suffice it to say that Mr McBain does not believe this part of the Act is still valid, and it should be scrapped altogether.
The Bill leaves unresolved a number of consequential matters which it should have clarified. First, if Prince William and his wife have a girl, thanks to the Bill she can become Queen. However, she cannot of right become of Duchess of Cornwall because the charter of 1377 governing the duchy provides only for a male. What is the situation about her becoming Princess of Wales? Secondly, the Bill seeks to remove anti-Catholic legislation preventing the sovereign having a Catholic wife. This is all well and good. It is obvious, as Mr McBain says, that legislation preventing Catholics and Jewish people from holding other state positions on account of their religion should be abolished. The Government have forgotten about the Roman Catholic Relief Act 1829-for instance, not allowing the Lord Chancellor to be a Catholic-and the Jews Relief Act 1858. These Acts will have to be repealed at some stage as they prevent Catholics and Jews from holding other offices. This could be a subject for the Law Commission to consider.
In conclusion, I support the Bill overall but ask the Minister to consider seriously the various issues I have raised.
Lord Elton (Conservative)
My Lords, I enter the forum with some trepidation. These are very complex and sensitive matters. Until about halfway through I thought that I would probably scratch. After that, I thought it was too late. I hope your Lordships will bear with me for a few moments.
I start off in a dilemma because I am not aware of any Bill that I have encountered in which the Government have consulted so extensively and for so long around the world and, no doubt, between the two palaces-Lambeth Palace and Buckingham Palace-but they have not actually consulted Parliament at any great length. Of course, the constitution of this kingdom rests on two foundation stones: the Crown and Parliament. One had to listen with sympathy to my noble friend Lord Lang when he complained, in a powerful and important speech, about the haste with which this is being done here.
I am searching for reasons. I think the reason adduced so far has been the impending happy event for the Duke and Duchess of Cambridge. This Bill already has retrospectivity in it in the amendment to the Royal Marriages Act 1772. That principle can be used in this case so there is no hurry for that.
Then the question is: would the danger of an amendment here delay the Bill, making the rest of the Commonwealth unsettled and impatient? But the Bill has already been amended, at Second Reading in the other place. It is a small amendment but quite an important one, which proposes that,
"after 'descendants' insert 'from the marriage'"-
otherwise the principles of illegitimacy would have to be addressed. I do not know if that is being agreed around the Commonwealth but if it is, there is clearly not tempestuous haste needed.
I am sure that will all be explained, and the purpose of a Second Reading is not really to unpick the detail but to address the general principles. The first principle, on which I agree with my noble friend Lord Lang, is that certainty is better than flexibility when it comes to matters of this sort. Secondly, one's mind is focused, as was the mind of the noble Lord, Lord James, by the bringing to the table of the royal prerogative at the start of this process.
We are at the heart of history here, and many of your Lordships have looked back through history and seen various conflicting things. I see a constitution that has emerged from the power of the Crown being fought over by families and then by dynasties; then the struggle between the wish to be totally sovereign and the wish of the papacy to influence if not guide what happened here, and finally being domesticated after the Civil War in the settlement of 1688. The Crown then became the central focus of the national identity, but it was within the restraints of Parliament.
We have been on that subject for a very long time in this House, because the power of the Crown, which was severely limited by the invention of Parliament, is now being put back into it-but the Crown has changed: the Crown is not an individual; it is not a family; it resides in the Government, all except the very top. The Government do not consist of a thin band of ambitious politicians; they are a vast machine of civil servants, many with a good sense of history, many of them very pragmatic and many of whom regard Parliament as an unnecessary constraint-I have encountered some of them and been told this in terms. We are therefore the trustees of something which is already at risk.
We now look at the functions of a Queen, the person of the Crown, as opposed to the institution of the Crown. That is important in that it is spiritual. There is a withering of the spiritual in contemporary western society, not only in Christian spirituality but in other faiths. A secular society does not have the moral stability of one which has faith at its heart. The combination of the Crown being both the head of state and the head of the established church has an enormous and important symbolism and gives the monarch access to the church and vice versa. That is part of our national identity.
The other great change has been in the demographic composition-I would probably more correctly say the ethnic composition-of the country to which we all belong. That change has been dramatic in my lifetime. Not everybody adapts so quickly and completely as the noble Lord, Lord Carlile, to the culture and ethos of this country. What attracts is not just the permanence, the longevity and the historical continuity to which he referred but also the person of the sovereign. It is a happy coincidence that this issue has arisen during the reign of the present Queen, who I think is closer to the heart and the understanding of the country than almost any monarch in historic memory, and for that we owe her a great debt.
The nature of the monarchy is to evolve, to bend and to change to the needs and necessities of the time and the social pressures on government and on the Crown. It keeps the sympathy of the people by looking after, tuning into and being in sympathy with basic fundamental and moral understandings of the people. One thing is fairness. The introduction of this equality will be widely understood as an element of fairness which is needed in the structure of a country which seeks to be both profoundly democratic and a monarchy.
For those reasons, I bury my doubts and difficulties-quite a lot of them have been dug up during this debate. Some of them will be answered by my noble and learned friend Lord Wallace. As I can see that he is writing something about me, I shall extend my words for a moment or two by saying that the rest of the difficulties will come out in the wash in Committee. I hope that the Committee stage will be as long as is necessary to address the question. That at least is required as a gesture towards those of us who feel that the timetable at the moment is far too fast. I have bored your Lordships too long. I hope that I have reassured you a little; I have certainly reassured myself quite a lot.
Lord Deben (Conservative)
My Lords, I intervene in the gap merely to remind the House that we learn to live with anomaly-indeed, we might say that we are an anomaly. The difficulty comes when we seek to right that anomaly, and that is the problem with which we are faced. We can live with things because they work, until we decide to put them right so that they are right. The problem here is that we are not quite putting them right.
Last night, in the cellars of this House, more than 200 of Her Majesty's loyal servants-Members of both Houses and servants of these Houses-gathered for the Ash Wednesday mass. We were not checked by the police to see whether we had taken bombs or any kinds of dangerous things down-the days to which the right reverend Prelate referred have gone-but we are as much citizens of this country as anyone else. If we are going to right the inequalities, we should recognise that. I shall vote later on, against many of my co-religionists, in favour of righting an anomaly which I think exists as far as gay marriage is concerned. It is an insult to every loyal Catholic that we still talk about the history, when, on both sides-let us say with equality-people behaved in an entirely unchristian way.
There is a simple way forward, which is to recognise that the head of state does not need to be Supreme Governor of the Church of England in the same terms. That was true in the past, because King James II was a Catholic and head of the Church of England. The dreadful William of Orange was technically a Calvinist and lot of other things as well, and he was the head of the Church of England. George I, who could hardly have understood the liturgy of the Church of England, was a Lutheran and was head of the Church of England. Indeed, we have those problems here today. The Church of England does not technically recognise the orders of the Presbyterian Church of Scotland, yet it has allowed its head to communicate in a church whose very ceremonies it holds to be invalid. If that cannot be the basis of sorting this problem out, I really do not understand it. What worries me is that we are not saying that this is the moment to see the monarchy again as the symbol of unity and as the symbol of equality. This is the moment to say that Catholics have as much right as any other members of this great country. I am ashamed of the fact that the Government have failed to do that.
The Queen is the Supreme Governor of the Church of England as far as the law of Christ allows. Can the Church of England really believe that the law of Christ allows it to say that there is inherent at the heart of our great country this fundamental statement, which is that, after 400 years, we can welcome His Holiness the Pope to the Houses of Parliament but we cannot allow those who in all faith-and I am a convert after all-have recognised the nature of the Catholic Church and have joined it?
I finish simply with this. I do not agree with my great old friend Lord Luce. This is not a matter of negotiation between the churches. Are we really going to say that an individual is going to be told that he must put either his faith or his heritage at risk? Talk about Paris is worth a mass! I am ashamed of a Government who cannot see that this matter should have been resolved in this Bill, instead of which we have half a Bill and it is not one that I am prepared to support.
Lord Stevenson of Balmacara (Labour)
My Lords, I thank all speakers for contributing to this wide-ranging debate, in which we have heard many useful and important points. Although not all have been within the scope of the Bill, many of them ought to be addressed. Having said that, I fully understand why the Government may not wish to address them today, or even in the short term. At least on the evidence of today's debate, and particularly on the evidence of the words said just before I started to speak, these points will not go away.
The Bill is a piecemeal assemblage. Given the nature of the uncodified UK constitution, it is probably inevitable that, when we have the opportunity to tinker with the constitution, that is indeed what we do. However, as several noble Lords and particularly the noble Lord, Lord Lang of Monkton, said, in our work in this House we need a sense of the principles and what the underlying proposals would lead to in the long term. On a number of occasions, we have come up against points where pragmatism seems to have trumped principle.
A number of noble Lords have raised the issue of why this Bill has been fast-tracked. We heard from the noble Lord, Lord Northbrook, who made reference to the Constitution Committee's 2009 report-its most recent one-which suggests that,
"the use of fast-track legislation, while it may be necessary for reasons of emergency and overriding public interest, will rarely, if ever, be appropriate for significant constitutional matters".
The Minister said, when he introduced the Bill, that this was a profound measure. I think he goes along with the fact that this is an important, significant constitutional matter. I do not want to make too much of this issue, as we are going through all the stages in your Lordships' House, but we should take from this the fact that using the expedited procedure for constitutional measures is, in principle, regrettable. It is to be hoped that the Government do not make a habit of resorting to the device.
Several noble Lords drew attention to the mechanics that underlie this Bill. I should put on record the fact that I had some involvement with those mechanics when I was working in Downing Street a few years ago. As we understand it, the whole point of consulting the other 15 states who have the Queen as head of state was to ensure that common action was agreed, which was necessary to avoid a situation in which different people emerge as monarchs in different states because there had been no uniform change to the succession rules. We also understand that the UK had to go first to blaze the trail, although some states will not have to legislate at all because their constitutions automatically accept whoever is the legitimate successor in the UK. Can the Minister, therefore, tell us how far we have got with simultaneous ratification in the other realms? I would like to follow up the suggestion of the noble Lord, Lord Trefgarne, that the Minister should say what would happen to the Government's plans if several states-or even one of them-that have to legislate, fail to do so successfully?
I appreciate that the agreed retrospection to
On primogeniture, the change to gender-neutral primogeniture for royal succession is welcome and, despite the safety net of retrospection to
On whether there is a possible read-across from royal primogeniture to a peerage succession, the Government's argument is that Crown and peerage primogeniture are distinct. We agree that, as things stand, Crown succession must and can never fail but there is no public interest to be served by putting peerages in the same position. To my mind, regardless of questions of legitimate expectations and private law arrangements being invaded by unforeseeable changes in the succession rules, anxieties about peerage succession can serve only to raise the question of why hereditary peerages should continue at all, let alone in this House.
That is not in any sense to demean the arguments put forward today. Nor does it deal with the argument for change in the peerage succession rules, admirably put forward by a number of noble Lords but also by a number of wives, sisters and daughters who have corresponded with a number of your Lordships. They argue, and I agree with them, that the lack of a Y chromosome can and does see some women denied their natural inheritance. That should be addressed.
On the issue of religious tests, I am sure that the whole House welcomes the proposal to permit the sovereign to marry a catholic, which at least gets rid of one of the most visible bars to full Roman Catholic participation in our society. However, because abolishing this disqualification leaves untouched the remaining Catholic disqualifications, the question that naturally follows is: why should any remain? After all, it will still be the case that the monarch cannot be a Catholic and will also have to be "in communion with" the Church of England. As we have heard, this latter rule means that, even if all the explicit bans on Catholics succeeding were repealed, an implicit ban would remain, and it is not much of a consolation that the ban includes everyone else not "in communion", that is non-Trinitarian Christians, all non-Christian believers and all non-believers.
I note that the Church of England issued a statement on
"Its proposed removal is a welcome symbolic and practical measure consistent with respect for the principle of religious liberty".
It should be noted that it says "religious liberty", not "religious equality". Liberty and equality are not the same.
The customary defence to preserving the explicit and implicit Catholic bans is that repeal would be incompatible with the monarch remaining Supreme Governor of the Church of England, a title which derives from Section 8 of the Supremacy Act 1558. In practice, all senior diocesan and cathedral appointments are now made by the Church of England in a situation where the recommendations of its committees are waved through by the Prime Minister on their way to the sovereign. All measures require prior parliamentary approval and all canons the prior approval of Ministers. The actual content of the supremacy is therefore largely formal and the church is, in practice, autonomous.
We do not have an established church in Wales, Northern Ireland or in Scotland. I draw the attention of the noble Lord, Lord Maclennan, and my noble friend Lord Berkeley to the Church of Scotland Act 1921, which confirmed that the kirk has independence in spiritual matters. We ought to bear in mind that here we are talking about an English issue and not a UK one.
Several noble Lords raised the issue of whether it was time to abolish the supremacy. At the very least I agree with the noble Viscount, Lord Astor, that we should debate this otherwise it will suddenly come and get us when we are not expecting it.
It is my understanding that there are two possible ways of proceeding. We could do a wholesale statutory repeal or we could do a minimal change to the law combined with changes of practice. The first would require the repeal of all the relevant statutes. But there are precedents for that as we repealed, in an appropriate time and an appropriate way, the legislation disestablishing the Church in Ireland in 1869 and in Wales in 1914. How far and how deeply statutory reform would need to reach would depend on what, if any, roles the church wished to retain in England and Parliament was content to continue. This route would be technically laborious but not impossible and perhaps best undertaken by the church itself in stages, proposing the means by way of synodical measure.
The second method would be to proceed by minimal repeal; that is by repealing the prohibitions against Catholics and the requirements for the monarch to be in communion with the church, and amending the accession declaration oath. This would remove the compulsory religious qualifying link between the sovereign and the church and yet permit, as a matter of practice, the remaining formal functions to be regarded as the involvement of a friendly but non-confessional royal patronage towards one of the most ancient of national institutions. As the noble Lord, Lord Deben, has just said, free to adopt any belief system they wished, sovereigns could remain Anglicans if they individually desired but the compulsory link would be abolished and the way cleared for them to choose freely like everyone else. At the same time, all belief systems would thus become equal under the sovereign and, while there would be recognition of Anglicanism's historic presence, that church would no longer have an entrenched constitutional role in England.
The present sovereign has herself voiced reinterpretive language about the modern role of the Church of England. The right reverend Prelate the Bishop of Worcester cited extensively what the sovereign said at one of the first Jubilee celebrations at Lambeth Palace on
"The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated. Its role is not to defend Anglicanism to the exclusion of other religions. Instead, the Church has a duty to protect the free practice of all faiths in this country".
That certainly opens the way for further work, if the current Government are so minded. It is important to recognise that what one would be doing here is securing religious equality as well as religious freedom in this country.
The third part of the Bill deals with royal approval for marriage. It is a bit of a surprise to find that this subject occupies more of the Bill than the other provisions put together. Many noble Lords have expressed concern about the fact that that tidying-up exercise raises the question of whether royal consent should be required for anyone's marriage in the first place. Although the 1772 Act machinery would have been an important element in, for example, Princess Margaret's decision not to marry Group Captain Townsend, the objection that he was a divorced man would now perhaps not feature as an insuperable objection.
Presumably, other targets of unsuitability are thought to have force. If so, what exactly are they? Would the line be drawn at marriage to one's personal trainer, as happened in Sweden, or to an unmarried mother, as happened in Norway, where official consent was forthcoming in both countries? Repeal of the clumsy-some would say vindictive and heavy-handed-1772 Act is clearly an advance, above all in the way in which the new system will not invalidate marriages where prior royal consent is not obtained. On the other hand, it would be helpful to know exactly in what circumstances the Government envisage that that consent would be withheld. Can the noble and learned Lord confirm that consent will be withheld only following and on the advice of Ministers; or where there is a well founded personal objection to an intended spouse by reason of their past conduct or present associations being likely to bring the institution of the monarchy into disrepute; and that those reasons would be given?
As the noble Lord, Lord Trefgarne, asked, will that all be subject to judicial review? If the Minister cannot so confirm today, will the Government set out before the Bill's remaining stages when they envisage royal consent may legitimately be refused?
As I said, this has been an interesting, illuminating and highly educational debate. As was said earlier, this important debate has the capacity to interact very substantially with the culture of this country. Unlike most of the business with which we routinely deal, it is in some senses a one-off. It has impacts which are unlikely to be seen in full effect for about 100 years, as the succession moves on.
I conclude by stressing what my noble friend Lady Hayter said at the beginning of the debate, which is that we on this side support the limited but important aims of the Bill and will do what we can to ensure its smooth passage through your Lordships' House.
Lord Wallace of Tankerness (Advocate General for Scotland; Liberal Democrat)
My Lords, I begin by thanking all noble Lords who have taken part in the debate. It has lived up to expectations by being wide-ranging and of considerable interest. A great deal of learning has been brought to the debate, particularly the very interesting historical exchanges between my noble friends Lord James and Lord Marks. This debate has been well informed because of the contributions from all sides of the House. I particularly welcome the fact that the Bill has been generally welcomed on all sides of the House-by the official Opposition, by those from my own party on the Liberal Democrat Benches, by Conservative colleagues and indeed, by the right reverend Prelate the Bishop of Worcester, who indicated the welcome that the Church of England has brought to it.
My noble friend Lord Elton noted that I was writing down his name, because he possibly summed up the view of many contributors to this debate when he said that he believed that the changes proposed are sensible but that he has doubts and difficulties. It is important that those doubts and some of the potential difficulties, the concerns expressed about possible unforeseen and unintended consequences, have been aired in our debate. I am sure that they will be aired as the Bill proceeds through your Lordships' House.
At the outset, I address the issue that the Bill has been fast-tracked. 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. My noble friend Lord Northbrook took exception to that when he talked about the amount of time available and the number of amendments. Of course, in the other place, not all amendments are debated; it is the Speaker's selection. The point is that more time was made available than the time taken up by the amendments. It is not really the fault of the Government that no more amendments were tabled. There was sufficient time to debate the amendments that were selected in the other place.
With regard to proceedings in your Lordships' House, I confirm that, as on any Bill, it has been agreed through the usual channels. The normal time limits will be observed, and I believe that there will be ample time in Committee, on Report and at Third Reading for proper scrutiny and consideration to be given to the Bill.
This might also be an appropriate moment to mention, as the noble Lord, Lord Stevenson, said, the fact that provision on male-biased primogeniture taking effect from the date of the announcement at the Commonwealth Heads of Government conference in October 2011 means that there is no rush with regard to any impending birth.
My noble friend Lord Northbrook asked whether a referendum was necessary in any of the other realms. Of course, it is for the realms themselves to decide how to give effect to the changes, but it is not our belief or understanding that any realm needs or intends to undertake a referendum. We have been assured as part of the negotiation that we have a full commitment to ratification by the respective realms of which Her Majesty is head of state.
My noble friend Lord Trefgarne asked about the commencement clause. Those provisions are framed as they are to ensure that they are brought into force by means of orders made by the Lord President. The Government expect to bring the rest of the Bill, including Clause 5, into force at the same time as the other realms bring into force any changes to their legislation or other changes necessary for them to implement the Perth agreement. There is, as will be noted, a power to specify the time of day of commencement. Assuming that the other realms make the same provision, that will enable the changes to succession to be brought into force at the same time, but at different local times, in all 16 Commonwealth realms. Clause 5(3) allows for flexibility in commencement should unforeseen circumstances arise.
As has been said, the first clause relates to the removal of the male preference in primogeniture, and will allow the firstborn child, be it a son or a daughter, to succeed to the Throne. My noble friend Lord Elton referred to fairness in 2013. The noble Lord, Lord Janvrin, also referred to a sense of fairness and made the important point that if we were not to do this, there could at some future stage be a situation where a younger brother would succeed ahead of an older sister and that in itself could cause difficulty for the Crown, because it would be seen to be not in touch. By doing this, we help to give stability to the Crown.
An issue initially raised by my noble friend Lord Trefgarne but also referred to by my noble friend Lord Lexden and others, was the implication for royal titles. I shall do my best to go through them. We do not believe that the removal of male bias in rules governing succession to the Crown will result in any other royal titles becoming detached from the Crown. The Duchy of Lancaster is held by the sovereign. We are confident that the Duchy must remain with whomsoever is the monarch. Clearly, the monarch at the moment being a Queen has not created any difficulty in the Duchy of Lancaster being held by the monarch. The attachment of the Duchy to the Crown is now established fact.
With regard to the Dukedom of Cornwall, at present, the title can pass only to the son and heir of the monarch. Thus, when Her Majesty was the heir presumptive, as Princess Elizabeth, she did not hold the title of Duke of Cornwall. Therefore, we believe that where there is a female heir, the title could not pass to a younger brother and would not detach from the royal line. I assure the House that, in any event, a female heir apparent will not find herself at a financial disadvantage because, as the noble Lord, Lord Janvrin, pointed out, the Sovereign Grant Act 2011 ensures that financial provision equivalent to the income from the Duchy is made for the heir apparent. The title would not therefore be automatically inherited by a daughter; the Duchy would go into abeyance, as indeed happened when Her Majesty was Princess Elizabeth and was heir presumptive. Provision is made under the Sovereign Grant Act for the financial consequences that flow from that.
My noble friend Lord Northbrook asked about the position of the style of Princess of Wales. On this issue, I would simply say that the granting of certain royal titles, including that of the Prince of Wales, is a matter for the sovereign. Furthermore, it is a matter not directly related to the rules of succession. It would be a matter not for the scope of this Bill but for the sovereign personally.
Lord Berkeley (Labour)
Very briefly, I understand what the Minister is saying about the Duchy of Cornwall but if there was a female heir to the Throne and she was therefore not the Duchess of Cornwall, who would go round and play landlord in Cornwall in their absence? Would it be nobody, so to speak?
Lord Wallace of Tankerness (Advocate General for Scotland; Liberal Democrat)
I think I am right in saying that there is a council of the Duchy. Indeed, that position arose when the present Queen was heir presumptive but was not the Duchess of Cornwall. There is therefore ample precedent for the way in which the affairs of the Duchy can be arranged or dealt with in these circumstances.
Lord Trefgarne (Conservative)
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 (Advocate General for Scotland; Liberal Democrat)
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".-[Hansard, 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.
Lord Deben (Conservative)
Before my noble and learned friend sits down, is there not a terribly simple way out? That is, to say that there is no bar to any Catholic becoming King or Queen but, in the event of a new sovereign being unable to be in communion with the Church of England, a Regent would be appointed as supreme governor of the Church of England. That would help us should there be some other religion to which a sovereign might wish to belong. It would also get out of the way of this being a stitch-up between churches instead of being a proper decision by the individual concerned.
Lord Wallace of Tankerness (Advocate General for Scotland; Liberal Democrat)
My Lords, my noble friend makes an important contribution to that debate. I hope that he will recognise that it would not be appropriate to open up that whole issue, not least given the conflicting views that we have heard in the course of your Lordships' deliberations today, for the purposes of this piece of legislation. However, I have no doubt that, as the noble Lord, Lord Stevenson, indicated-indeed, the noble Lord, Lord Dubs, had a Private Member's Bill on this subject at one point-this issue is not dealt with, nor do the Government believe that it should be. We believe in the maintenance of the established Church of England. It is an issue, though, and when that debate takes place my noble friend's contribution will be an important one for people to consider.
Lord Forsyth of Drumlean (Conservative)
I thank my noble and learned friend for giving way. When he says that it is not an issue for this debate, surely the very reason why the prohibition on the heir to the Throne marrying a Catholic being removed is to end that discrimination. My noble friend Lord Deben's suggestion of a regency would work with the way in which the Bill is presently constructed-that is, the heir to the Throne may be a Catholic but cannot be one. For those of us who do not wish to see the Church of England being anything other than the Established Church, this would be a way of removing the discrimination against Catholics. I have to say that we are not repealing the vile and offensive language, from our modern-day view, which is contained in the 18th-century statute and which causes great offence to Catholics throughout the United Kingdom. Would it not be sensible to consider my noble friend's suggestion?
Lord Wallace of Tankerness (Advocate General for Scotland; Liberal Democrat)
My Lords, I believe that this would go beyond the scope of the Bill. Something as profound as that could not be imported into the Bill without much further scrutiny and consideration. It is also important to remember that the provisions in the Bill removing an element of religious discrimination have been welcomed not just by the Church of England but by the Roman Catholic Church. I do not think that that is a stitch-up; it is a welcome recognition by both churches that this is an important change in our law. To go much wider than that, in fact, would require consideration that is not appropriate. We would be subjected to justified criticism if this were all rushed through as an amendment to the Bill in Committee, quite apart from all the implications for the other realms that have been so carefully consulted over a long time.
Lord Maclennan of Rogart (Liberal Democrat)
Before my noble friend leaves this matter, while recognising that the Bill may not be the right place to do what the noble Lord, Lord Deben, has suggested, could he at least indicate that the Government might put in train discussions about this with other realms in the Commonwealth and consider whether this would be an appropriate direction in which to move?
Lord Wallace of Tankerness (Advocate General for Scotland; Liberal Democrat)
I am sorry to disappoint my noble friend, but the Government do not have plans to do that, although it is quite clear from the contributions to this debate that it is an issue. However, it is not the policy of the Government to go down that road; therefore, I regret not to be able to give a more accommodating answer to my noble friend.
With regard to the Royal Marriages Act 1772, my noble friend Lord Lang thinks six is too limited, but my noble friend Lord Carlile thinks six is too wide. I explained that if one looks at the 240 years of history since the Act was passed, Queen Victoria was the furthest away from the Throne at the time of her birth, at fifth. Therefore, six is a realistic number. I say to my noble friend Lord Carlile and other contributors that, unlike the consequence of the Royal Marriages Act, which is that the marriage is void, the consequence of marrying without consent under this Bill would be that one would drop out of the line of succession, so some of the convention issues that my noble friend mentioned are properly addressed.
My noble friend Lord Lang was concerned that the Bill might put the sovereign under some pressure about whether someone was an appropriate person to marry. That could be the case today. There is probably unlikely to be any pressure if the person is 710th or whatever in line to the Throne, but even today, the first six still require the sovereign's consent to marry.
My noble friend Lord Trefgarne asked about judicial review. We do not believe that this could be reviewed. Although the decision would be taken on the advice of Ministers, it would be taken by the sovereign, and her decisions cannot be challenged in the courts.
My noble friends Lord Carlile and Lord Northbrook asked us to clarify the common law position with regard to the monarch's consent. It is arguable that the common law no longer applies since it could be said that by legislating in 1772, Parliament has superseded the common law. The defects of the 1772 Act have frequently been pointed out, and the Government consider that there is a clear case for repealing and replacing it. A dowager queen is not in the line of succession, so the importance of royal consent is not as great as it is in the case of someone in the immediate line of succession. We do not see dealing with any possible surviving common law rules on consent as essential.
My noble friend made points about the Roman Catholic Relief Act 1829 that were picked up by my noble friend Lord Northbrook. It was argued that the Bill would allow a regent to be a Catholic. The effect of the Bill is not to make it possible for the regent to be a Catholic. Section 3 of the Regency Act provides that the regent is the person next in line of succession, if not disqualified, which a Catholic would be. A further disqualification is brought in under this Bill if a person in the first six in line of succession to the Throne marries without consent. That is the purpose of that clause.
My noble friend Lord Astor asked about the Channel Islands and the Isle of Man. Historians will argue about whether the dukedom of Normandy is still live, but there is no doubt that within the Channel Islands the Queen is heralded and treated as the Duke of Normandy. Nothing in the Bill would change that. The Channel Islands have been consulted on this. The Bill will apply by necessary implication to the Crown Dependencies and the British Overseas Territories, which have been fully informed and consulted on this matter.
Lord Wallace of Tankerness (Advocate General for Scotland; Liberal Democrat)
The position with the Lordship of Man is exactly the same. No change is anticipated. The Queen would continue to be the Lord of Man when she is in the Isle of Man. The removal of male bias has no implication for the title of Lord of Man.
In her opening remarks, the noble Baroness, Lady Hayter, said how much we look forward to the birth later this year of the child of Their Royal Highnesses the Duke and Duchess of Cambridge. She got the assent of the House when she said that she hoped that there would be no press harassment or intrusion. The change that we are putting forward will mean that if the Duke and Duchess of Cambridge have a daughter, then a son, the daughter will precede the son in the line of succession. As we look forward to the birth, we can also celebrate that whether a boy or a girl, the child will have equal claim to the Throne. I think it is the mood of the House to wish the Duke and Duchess of Cambridge every happiness as they face up to the challenge of parenthood, and I commend this Bill to the House.
Bill read a second time.
Lord Trefgarne (Conservative)
My Lords, can I persuade my noble 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 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 (Advocate General for Scotland; Liberal Democrat)
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.
Bill committed to a Committee of the Whole House.