HL Deb 10 February 1937 vol 104 cc88-99

Order of the Day for the Second Reading read.

THE LORD PRIVY SEAL (VISCOUNT HALIFAX)

My Lords, I have to move that this Bill be read a second time. It is a Bill, as your Lordships will recognise, that has been brought forward by His Majesty's Government in response to the gracious Message that was communicated to your Lordships' House on January 26. I believe that the Bill is a simple one as Bills go, and that it raises no controversial questions that are likely to cause difficulty. We believe—and hope that your Lordships will agree with us—that it does constitute an improvement in the machinery of government, and one that can at this stage rightly be made. At the same time, although the object of the Bill is simple enough, your Lordships will readily understand that the method has required rather careful consideration, partly for the purpose and on account of the necessity of keeping Dominion Governments closely informed of what we here had it in mind to do.

The process of consideration of this question started, I think, as long ago as 1928 after the then illness of His late Majesty King George V. In any event it would have been necessary to take action on this matter now in the circumstance of the Heir Presumptive to the Throne being a child. The most recent precedent for a Regency Bill is, of course, that of 1910. The present Bill however covers rather wider ground than that Act of 1910 in that it makes provision for contingencies that were then not provided for. This Bill, as your Lordships will have seen, covers the hypothetical case of the total incapacity or partial incapacity of the Sovereign or of the Regent to discharge his functions. It also covers, though in a different way, the case of the absence of the Sovereign or of the Regent from this country. His Majesty's Government have considered that it was convenient to bring all these contingencies together and to make permanent the statutory machinery for dealing with them. If this Bill passes, in future statutory machinery will be available for the exercise of the royal functions by a Regent in certain contingencies, and for the delegation of the royal functions in the other cases to which I referred to Counsellors of State. I do not pause to dwell on the advisability of such permanent provision being made, because your Lordships will, I think, have in mind the grounds on which that advisability can be recommended.

Clause 1, your Lordships will observe, is a clause that appoints a Regent if the Sovereign on accession is under eighteen years of age. In Clause 2 provision is made for the Regency during the total incapacity of the Sovereign from whatever cause. In Clause 2 machinery is provided for the formal declaration by any three or more of the persons who are there specified, establishing the necessity for a Regency being created. At a later stage of this Bill an Amendment will be moved to clear up doubts that were raised in another place as to the evidence upon which such incapacity might be certified. It is, of course, the intention, and always was the intention, to enable evidence other than purely medical evidence to be considered, but not to the exclusion of necessary medical evidence, and the wording of the clause will be modified to make that point clear.

Clause 3 is the clause which prescribes who the Regent shall, in fact, be in either of the contingencies mentioned, and it provides that he shall be the person next in line of succession to the Crown subject to exceptions for possible disqualification. Your Lordships will observe that Clause 3 (4) applies Clause 2 of the Bill to the Regent himself—that is to say, that in the event of the incapacity of the Regent the next qualified person in line of succession takes his place. In Clause 6 provision is made for the case of partial incapacity as opposed to total incapacity and for the case of the absence of the Sovereign from the United Kingdom. That provision takes the form of the appointment of Counsellors of State who are to be entitled to exercise the royal functions in the cases specified. These persons on whom that duty shall devolve, your Lordships will see, are mentioned in subsection (2) of this clause. The remaining provisions of the Bill may, I think, be described as consequential.

There is only one further matter upon which your Lordships might expect me to say a word—namely, the position in relation to the Dominions, with whom, as I have already said, there has been a good deal of consultation. The question of introducing legislation of this kind was informally discussed with the Dominion Prime Ministers during their visit to London in May, 1935. The provisions contemplated were explained and discussed with the Prime Ministers at that date and were found to be generally acceptable to them. It was also made clear to them that it was entirely a matter for each Dominion to decide whether any legislation might be necessary to make provision for the performance by a Regent or by Counsellors of State in the circumstances set out in the Bill of royal functions in relation to the Dominions. So far as is known it is not the intention of any of the Dominion Governments to introduce legislation at the present stage to deal with this matter. I think that is all that at this stage I need say in regard to this Bill, which I think is reasonably self-explanatory, and I hope your Lordships will agree that the contingencies with which the Bill seeks to deal are such that your Lordships feel it is desirable to make provision to meet them. I beg to move.

Moved, That the Bill be now read 2a.—(Viscount Halifax.)

LORD SNELL

My Lords, on a previous occasion I pledged the assistance of my noble friends and myself to anything that was required to make the transference which we recently had to make, and we are willing to give what assistance we can to the passing of this measure. So far as I know no political principle is involved in what is proposed, and we assume that it is wise that provision should be made for circumstances which we hope may never arise. The provisions in themselves appear to be precautionary and reasonable and we therefore offer no sort of objection to them. I might be permitted to say that our position in regard to the Throne as it exists in England is that we accept it without argument or hesitation in its present form, but if circumstances should arise where a change was made in the relationship of King to Parliament that would require a revision of the attitude which we take. But we recognise at the present time that it is not a matter for us alone. As the noble Viscount has explained, it is a matter also for the Dominions, and, as we have no reason at all to suppose that the Dominions are not fully in agreement with what is proposed in this Bill, we give what assistance we can in helping it to pass.

LORD MOTTISTONE

My Lords, all of us in this part of the House are only too anxious to support the Government in carrying through this Bill. As I understand the Bill, it makes permanent provision for certain contingencies, some of which we hope may never occur, such as illness and absence from the country on duty. Such contingencies have hitherto been met by Bills produced and passed for the purpose. It would seem, therefore, entirely reasonable that we should pass this Bill, and on behalf of those sitting in this quarter of the House I may say that we cordially support the measure.

THE EARL OF DONOUGHMORE

My Lords, I am the last person to desire to oppose this Bill; indeed I think His Majesty's Government have been wise to introduce it, and it is obvious that they do so with the support of the overwhelming majority of both Houses of Parliament. I feel it my duty, however, at this first stage, to call attention to one very important point in it because I am a little afraid that it may contain the germs of trouble for future generations. I would desire to emphasise my belief that this Bill is entirely appropriate to present-day conditions, and I feel that these conditions were fully present to the authors of the Bill, but we must look a little further and ask, is it in its present form absolutely appropriate to the conditions of all times? I have in mind Clause 3 of the Bill which was mentioned by my noble friend the Leader of the House. Clause 3, which is quite inelastic, is rigid in saying that if there is a Regent that Regent must be the next in succession to the Throne who is not disqualified either by age or by the other ways which are mentioned in the clause. I ask myself whether this absolute rigidity is wise.

It is a matter on which we can get guidance from history, remembering that history sometimes repeats itself. This is February 10, 1937. Will your Lordships cast your minds back to February 10, 1837? The conditions then illustrate the conditions which had existed for the previous seven years. His Majesty King William IV was on the Throne. There was a Whig Ministry in 1830, of course under Lord Melbourne; it had previously been under Lord Grey. Her Royal Highness Princess Victoria, afterwards Her Majesty Queen Victoria, was the immediate heir to the Throne, but she was disqualified from acting as Regent had a Regency been necessary because she was then under age. She became of age on May 24, 1837. Therefore, had this Act been in existence then and had it been necessary to have a Regent in the period between 1830 and 1837, the Regent would have been the Duke of Cumberland. Now it is a common phrase in our history books that His Majesty King William IV during his reign displayed the instincts of a statesman, but the stoutest defender of the Duke of Cumberland could not have made a similar claim for him. Nor would he have been likely to show those instincts had he been Regent and called upon to act in accordance with the Constitution. The Duke of Cumberland was a very gallant soldier and he afterwards proved a successful autocrat when King of Hanover, but he was a bitter party politician and very unpopular as such.

For thirty years he was a leader in the councils of the Tory Party, and he was constant in his attendance in your Lordships' House. As early as 1808 he declared undying opposition to Roman Catholic belief, and he constantly afterwards displayed it. He was active in opposing the relief from the Test Act and the Corporation Act, and when the Catholic Emancipation Bill came before your Lordships' House he said: "I will withdraw all confidence from the dangerous men who are forcing it through Parliament." He opposed the Reform Bill of 1832 and the Municipal Corporation Act. I can sum up by saying that he was prominently identified with every bad thing the Tory Party did during the whole of his thirty years' career. Yet if King William IV had developed the illness which afflicted his father, and if a Regency had been necessary, and this Act had been on the Statute Book, a very serious situation would have developed. Either the Government would have had to amend the Act ad hoc—a most undesirable thing to do—or, as an eminent Oxford historian wrote to me on this subject a few days ago, there would have been a revolution, because the country would not have stood it in the then frame of mind of the people. Your Lordships will remember that the Whigs came to power in 1830, and except for a few months they were in power all through His Majesty King William IV's reign. Unfortunately, the Duke of Cumberland had not the happy power of conciliating his political opponents, and we can, I think, sum up his personal character by repeating what His Majesty King William IV once said, according to the memoirs of the time, of his royal brother: "If anyone has a corn he is sure to tread on it." He would, anyhow, have been the last man who could have worked harmoniously with Lord Melbourne and with the Whig Party of the day. Indeed, I think it is almost obvious that he would not have tried to do so.

I repeat that my fears of a repetition of this state of things may not, and in present circumstances do not, exist, but we are not legislating for the present only. We are legislating for the future. The Act of Settlement, passed over two hundred years ago, rules us now, and this Act will rule our successors one hundred or perhaps two hundred or more years ahead. No one can say that there is no danger of a similar state of things as in 1837 during all the centuries which are to come. There ought, I feel, to be some elasticity in regard to this important point. This thing, of course, must be done on the responsibility of the Government and I do not propose to move Amendments, but one can think of ways in which alternatives could be applied. Under Clause 2 there will be organised a new and important body to decide when the necessity to have a Regent arises. Could not the same body recommend to Parliament who should be the Regent? Or it could be done by allowing the actual name to be submitted by the Government of the day. I am not flattering the present occupants of the Front Bench when I say I would trust a Government composed of their great-great-great-grandchildren. Those are only some of the ways in which it could be done. There may be others. I understand that there are to be Government Amendments to the Bill—in fact, the noble Viscount the Leader of the House has told us of one—and I hope it is not too late for a further Amendment to be thought of to ward off such dangers as I have indicated. At any rate I thought it my duty at this early stage of the Bill to call attention to this matter, and I hope that before the Bill leaves your Lordships' House action will be taken to give an assurance regarding the fears I have thought it right to express.

LORD RANKEILLOUR

My Lords, the noble Earl who has just spoken has made a very weighty contribution to the discussion of this Bill, but I do not wish to follow him in the special matter he has brought before your Lordships. This Bill, unlike other Regency Bills, is intended to be permanent, and as it is intended to be permanent I suggest that all foreseeable contingencies should be borne in mind in its consideration. I cannot but feel that some contingencies have not been thought of. There may be latent, in words of the Bill that I have not noticed, some answer to what I am about to suggest, or the point may conceivably be covered elsewhere by some Statute or some principle of Common Law, but so far I have not been able to find it. If I suggest to your Lordships contingencies which seem to be fanciful, I can assure you that I am not mentioning them from any wish to indulge in flights of imagination or in speculative fancies.

The first contingency I would suggest is this. What is to happen if the Sovereign is taken prisoner? I will confess I cannot find a more modern precedent than King Richard I, but he was taken prisoner with his Great Seal and all, and great doubt arose afterwards as to the validity of executive acts in the Kingdom during his absence. After all, is it so impossible that this might happen? Your Lordships will remember what happened in August, 1914. A large number of English subjects were staying at various watering places—Nauheim in particular, and Homburg and elsewhere. Some were unable to get away, whether from not foreseeing the danger or because they were too ill to get away. Certainly they included at least one member of the House of Commons, and it was always understood that a certain noble Earl who is universally popular whether in his county or in this House had a very narrow escape. We know that King Edward VII used to frequent Marienbad, a place from which it would be more difficult to get away. For all we know there may be in the future most agreeable watering places started in the Caucasus where monarchs and plutocrats may enjoy the latest developments of collectivist scientific inventions.

All these things are possible. If they were to take place, what would be the position? Of course you may say that this is covered by Clause 6, but is Clause 6 going to be of universal application? Is the Sovereign always expected to make an order under Clause 6? He may or he may not. If he did not it would be too late. Again, Clause 6 does not give him complete power to delegate his functions. The Counsellors are debarred from creating Peers and dissolving Parliament. Perhaps we might endure the first with equanimity. Of course in this House we have an annual increment of the deserving and the wise, but we could do without that for a period of perhaps three or four years. The other matter might be more serious. Suppose war was declared, and the King was taken prisoner, there might be a Parliament which would be an obstructive one and one which would refuse or minimise the necessary Supply. That Parliament could not be dissolved. That would certainly appear to be the effect of the contingency to which I have called attention. I do not know what might happen in those circumstances. It would almost seem that the only remedy would be revolutionary action on the Cromwellian method by the Army Council. An unscrupulous enemy might even hasten the declaration of war for the very purpose of securing so great a prize. That is the first contingency.

There is another contingency, that the King when abroad might be taken very ill—not so ill as to be incapable of exercising some of his functions, but still very ill—and he might be forbidden by his doctor to attend to business of any kind. It is conceivable that there might be interested parties who might instigate the medical adviser to that effect. The words in Clause 2 to which I wish to draw attention calls the Regency into being when "the Sovereign is by reason of infirmity of mind and body wholly incapable." That means total incapacity. Incapacity refers to a person, and not to external circumstances. A Sovereign in the position I am suggesting would be perfectly capable, but would at the same time be prevented. You cannot say that a sick man with paralysis in the legs is incapable of making a will, but he may be prevented from doing so by the action of his family in keeping pen and paper and witnesses from him. Then again, incapacity must be due to reasons of "infirmity of mind or body." There is a third contingency, which is I think both less unlikely and even more serious—it is that of the heir to the Throne being taken prisoner. I have heard it said—I cannot say with what exact truth—that this contingency was very prevalent in the mind of Lord Kitchener during the War, and he took special means to obviate the possibility—very much, I understand, to the distaste of the Royal personage most concerned.

This certainly is, however, a greater possibility, whether in the field or in some other circumstances. Clause 6 would be quite useless against it. We should be under the second disability that, while the heir was in captivity, there might be a Demise of the Crown, so that the new Sovereign would begin his Reign totally unable to perform his proper functions and to make use of any of the provisions of this Bill. It is not quite easy to see what would then happen. All the first acts that the Sovereign does at his accession would apparently be impossible. Those of your Lordships who were present at the last two Accession Councils will remember a variety of provisions which it was apparently necessary to pass, such as the provision for the Great Seal. I do not know what would be done to provide for that. For another thing, there would apparently be great perturbation in the Scottish Church, the support of which is the first declaration of the Sovereign. If lie were to be unable to make this declaration, the public gaze would probably be fixed more intensely than ever upon the most reverend Primate, and the suspicion might arise in Scotland that he was planning to reintroduce some form of prelacy into that country!

What an opportunity such an accident would be for faction at home, and what aid and comfort it would bring to the enemy! This at any rate is not such an improbable contingency, and might involve us in the gravest trouble. These are possibilities, and I do not see how they are covered. I suggest that some Amendment might be made in line 27 of page 2—I think it is—-to add some words like: "by reason of external circumstances unable to perform"—not only "incapable … of performing." The Government may, however, think that these suggestions are too far-fetched, that certain risks will have to be taken, and that we cannot provide against everything. If that is so, I shall certainly not press the matter in Committee. These are, however, possible contingencies and, so far as I have been able to understand the Bill, they are not covered by its text.

VISCOUNT HALIFAX

My Lords, perhaps with your permission I may say a word or two on the points that have been raised, so far as I can. I am extremely grateful to noble Lords opposite for their general support of this Bill, and I do not think they desired to ask any questions. The noble Earl who spoke next made what, apart from his speech's other merits, I think everybody recognised as a most delightful historical expedition, on which he allowed us to accompany him. If his speech had had no other merit, that would have been a great one. The point that he made was of course, as my noble friend Lord Rankeillour has said, an important one. As he made it, I found myself reflecting that it might no doubt have been unwise in 1830 to pass the Bill in the form in which we recommend it to-day. So far I go with the noble Earl, but I am quite sure that he also would be prepared to agree that since 1830 changes, political and constitutional, have occurred so great that the kind of danger that he would have felt to be acute in the situa- tion of 1830 if he had been alive then, would not now, or in the days of our great-great-grandchildren, be likely to arise. Moreover, no doubt if they did arise it would be the duty of the Parliament of that day to deal with them. I only put this to him as a partial answer to the broad hypothetical case which he was concerned to put to us. Without speaking for anybody except myself on this point, because I have had no opportunity of consultation, I should have supposed that there were, broadly, two alternative methods of dealing with the question of who should be Regent: there is the way of making the Regency automatic, as is done by the Bill, or there is the alternative of making it in some way selective. With great respect to the noble Earl, I should have thought that at this time of day the possible objections to making it automatic were likely to be less than the objections to making it selective. I can imagine many difficulties arising if it were sought to follow that course.

My noble friend Lord Rankeillour sketched a large number of possibilities that, with him, I do not necessarily regard as at all unreal, although I should hope that they were certainly remote. I do not know that at this short notice I have the answers to all the conundrums which he propounded, but one answer that I should like to put to him is, I think, not bad so far as it goes. Assume that there is a real possibility of the Sovereign being taken prisoner not having delegated powers to Counsellors of State before he left the safe asylum of this country; then, whether we think it probable or improbable, in what way would this country be worse off and the problem more intractable than it is to-day? In other words, because we are passing a Bill which, I think we all agree, will do a great deal to cover the ground which on the whole we desire to see covered, but which, in the view of my noble friend, may not completely cover all the ground that could be covered, I do not see that this House, or Parliament, or the nation is thereby any more liable to the risks that it has evidently been running since it had the Monarchy at all, but from which it has so far managed to keep itself immune. I shall certainly convey to my right honourable friend the Home Secretary and to those who advise him the observations which my noble friend has made, and if it is thought on the whole possible or desirable to meet those points, I shall give myself the pleasure of putting down Amendments. I am, however, rather doubtful whether they will be found possible or desirable, because during the time in which I have been at all concerned with Bills I have never known one more scrupulously or carefully brought into being than this Bill. My noble friends may take it that if the particular points which they have had in mind have not been specifically met—as of course they have not—it is because the reasons against meeting them were stronger than the reasons for meeting them.

On Question, Bill read 2a and committed to a Committee of the Whole House.