Hereditary Peerages Bill [H.L.]

HL Deb 07 March 1994 vol 552 cc1283-330

5.56 p.m.

Lord Diamond

My Lords, I beg to move that the Bill be now read a second time.

This House undoubtedly played a full part in promoting equal opportunity for the women of this country and in outlawing sex discrimination. The Prime Minister and Ministers in both Houses have made clear their support for that principle in ringing tones on many occasions. It is now universally accepted that discrimination on grounds of sex is morally wrong as well as being unlawful.

What a rich harvest has resulted. Wherever we look we see examples of women fulfilling tasks that were previously restricted to men and doing them very well: Heads of State, Prime Ministers, Madam Speaker, Members of Cabinets, the professions, the universities — the list is endless. Above all, we enjoy the stability of living under a Queen who is not only looked up to with affection by all but who is the model of a constitutional monarch. Clearly this nation prospered greatly in the reigns of Queen Victoria and Queen Elizabeth I. On a less serious note I must not overlook Queen Boadicea and her chariot. The history books assure us that she made a deep impression on all those with whom she came into close contact.

Your Lordships' House has benefited greatly since women were allowed a voice following the passage of the Life Peerages Act. We remember with pleasure a woman Leader of the House and a woman Chief Whip; and women play an important part on all three Front Benches. Also we know from the attendance records that women Peers are on average twice as conscientious as the men. Those are but a few of the benefits we enjoy through breaking down the barriers imposed on us by centuries of tradition and thereby moving towards complete equality of opportunity.

But, alas, there is still one exception— your Lordships' House. It is undoubtedly one of the most important workshops in the country, but it is still denied the benefit of about one half of the firstborn of hereditary Peers created by Letters Patent. What a store of talent lies there untouched and what a ready handle that blatant denial of justice gives to all those who would denigrate this House. For we all know the explanation; it is extremely simple. One half of the firstborn are passed over because they are not men; or, as they say outside this House, because they are not men, but only women. What an insult is thereby offered to every self-respecting woman in the land. The justification can no longer be that this is essentially a man's job: that ceased to be the case centuries ago. It is of course tradition.

I share the view that it is unwise to jettison the old until one is sure that the new will work better, as is clearly the case here. Tradition must yield to beneficial change. I would mention but two outstanding occasions when this House has done just that. In 1829 it finally decided to break with a centuries' old tradition by allowing Peers of the Catholic faith a voice in this Chamber. In 1993, after much heart-searching, it broke with a 2,000 year-old tradition when it approved the ordination of women priests.

Perhaps I may just quote what the noble Lord, Lord Runcie, said on that occasion. Having declared himself a traditionalist, both temperamentally and rationally, he went on to say: The real duty of the traditionalist is not to oppose all change but to determine the criteria for legitimate development". — [Official Report, 2/11/93; col.1017.] The Bill whose Second Reading I am now moving provides the second opportunity to examine those criteria. On the previous occasion it was made clear in speech after speech that the option I had provided of either staying with the present system of male only descent or moving to a system of simple primogeniture irrespective of sex was the last thing most of your Lordships desired as it would be likely to cause dissension within families or even to be exercised for quite the wrong reasons. So this Bill simply provides that on the death of the present holder of the title the Letters Patent will be amended so as to provide, with certain exceptions, for the eldest child or other relative to succeed, whether male or female. The element of option has been completely removed.

I underline this point so that there should be no misunderstanding arising from the wording of Clause 1. The words, if it please Her Majesty she may amend", represent the normal courteous way of saying, Her Majesty will be graciously pleased to amend", the Letters Patent.

The exceptions I have just mentioned relate to the valid point made last time that it was wrong to remove a major injustice at the expense of creating another injustice and therefore the well-established expectations of an existing male heir should be respected. I had always accepted that argument, but the removal of the option requires a new method of meeting it. So Clause 2 provides that an existing heir apparent over the age of 18 will succeed. Eighteen seems the obvious choice but of course in the vast majority of cases he will be several times that age. In the tiny minority of cases where he is under 18, it can hardly be said that a boy, on average nine years old, has such a well-established expectation as to override the natural claim of an elder sister. Some Peers will, I know, prefer a higher figure; some the reverse. Clearly this is just the kind of detail that is best debated at Committee stage.

In the case of an heir presumptive the Bill proposes a simple postponement of 10 years. In the unhappy event of a death within 10 years, a nephew, for example, would succeed as against a daughter. I know that certain Peers would prefer their daughter to inherit rather than a male relative and they will want to move to reduce that period later in our proceedings. Clause 2 goes on to make it clear that no exceptions will arise once the title has passed to a successor.

These then are the main principles of this short Bill. It will improve both the working of this House and its standing in public opinion, it will help to prevent the disappearance of some names famous in our history and, above all, it will keep step with the rest of the civilised world in removing what is a gross injustice to women. It will not affect our powers in the slightest and will therefore avoid ninning into difficulties with the other place.

So much for the principles of this measure. Perhaps I may now deal shortly with some other matters which may be causing anxiety. As to property rights, the last thing I want to do is to interfere with the right of individuals to leave their property in whatever way they think fit, even though, as the noble Earl, Lord Strafford, informed us in a remarkable maiden speech, the present system has resulted in the title and the family house becoming permanently separated. On that same occasion the noble Lord, Lord Lucas, welcomed a Bill of this kind on the basis of his own experience of retaining fully the sense of family and history in spite of swapping surnames every other generation. He went on to say: The association of the concept of family with the male family name is not a necessary one". — [Official Report, 26/11/92; col.1149.] So I am not deterred from pursuing my proposal by the fear that it will necessarily be creating new or insuperable problems.

The argument of retrospection has been prayed in aid by some of those who are opposed to change of any kind. I simply do not accept that argument. This Bill deals exclusively with future events. It is no more retrospective than the frequent changes made by all governments in our tax laws which result in trustees and executors having to cope with an entirely different situation from that envisaged by the founder or the testator when the trust was created or the will executed. Moreover, I find it difficult to believe that every time Letters Patent were entered into, the Monarch made it clear that, even if the world changed completely and outlawed sex discrimination, the principle of male supremacy was nevertheless to be retained for all time.

I share the view of the noble Lord, Lord Kilmarnock, who said during our last discussion that, there is nothing God-given or sacrosanct about peerage law". — [Official Report,26/11/92; col.1145.] In particular I would remind the House of what the late Lord St. Davids said in February 1987 during Question Time when I had raised this very issue. He said it all in one sentence. He asked: in view of the mistake made by my 11th great-grandfather 500 years ago in changing the system from heirs general to heirs male, and in view of the very different ideas of today, is his act not an excellent precedent for putting the matter right now and allowing the ladies to have what they should have?"— [Official Report, 5/2/87; col.327.] Finally, if any noble Lord fears that I have acted precipitately or improperly in bringing this matter forward again, I would say that I have punctiliously followed all the precedents, that it is 10 years since I first raised this matter publicly when a Bill of this kind was suggested to me, that I have been invited by many Peers to do what I am doing and that I was informed that if I was not proposing to do so others would. But I confess also that I felt that at 86, with the approach of middle age staring me in the face, I ought to get a move on; and so I commend the Bill to your Lordships.

Moved, That the Bill be now read a second time. — (Lord Diamond.)

6.10 p.m.

The Earl of Shrewsbury rose (to move, as an amendment to the Motion ("That the Bill be now read a second time") to leave out ("now") and at end insert ("this day six months").

The noble Earl said: My Lords, I start by offering my congratulations to the noble Lord, Lord Diamond, on his determination in once again bringing this matter to the attention of your Lordships. The last time we debated the succession of hereditary peerages, a most interesting and lively debate was had. Much of the great history and tradition of this great country and of its proud and ancient families was depicted. I for one was fascinated and have become even more so over the past few days, reading time and time again the Second Reading debate of November 1992. It seems like only yesterday that I sat behind my noble kinsman, Lord Mowbray, as I do today, and listened with awe to my family, his family and those of many other noble Lords, being stripped completely naked in front of your Lordships.

The noble Lord, Lord Diamond, is to be congratulated in trying to help this House this evening. He is, through his Bill, attempting to persuade us to alter the method by which we hereditary Peers achieve our right to sit in the House of Lords. I fully subscribe to the view that equality between the sexes is just and right and indeed we see such equality taking place in many areas these days, as the noble Lord said in his speech. l pay tribute to the ladies whom I meet in my business life who hold very high and responsible positions. That was certainly not the case 20 years ago. In fact, I have recently taken advice from a female lawyer — a partner in the firm which I use in Birmingham— who is excellent and way in advance of many of her male colleagues. I know also that my daughter's student colleagues are setting out on life's path with the most excellent results and qualifications. They will achieve very much in their working lives: I have no doubt about that.

The Bill presented by the noble Lord, Lord Diamond, is much better than his previous one, basically in one main respect. That is that he no longer wishes the present holder to choose who, male or female, should inherit the title. That idea is always going to fail. It was a view that I certainly could not accept at the time and I cannot accept it now. But what has transpired is that that inequality has been removed only for other difficulties to arise with this Bill.

It only goes to prove that tinkering with the system, especially in the way it is done in the present Bill, brings up many other complex issues that require very great thought and indeed I believe are insurmountable. With the very greatest respect to the noble Lord, Lord Diamond, it is impossible to address this subject with a simple and straightforward Bill such as this, no matter how wide the Long Title is. The noble Lord has tried very hard indeed, and most genuinely, to address the inequality as he perceives it to be, but the present system is enshrined in tradition and history, and he and others will always find it hard to alter the well-rooted ways of those who have always been used to a system which has been with us since before the Norman Conquest.

We are what we are, and whether we like it or not, we abide by the system which we all know; which we feel comfortable with; to which our families are born; and in which we were brought up. Like the House of Lords in general, we are of course an anachronism which works and our daughters (or a very large majority of them) understand that system.

I do not wish to linger on the ancient tales of my family's rich history. This is not the right time: that was all done last time. Tonight is an opportunity to voice one's support for or opposition to the noble Lord's new Bill, with facts, with sense and with brevity.

I understand the good intentions of the noble Lord in promoting his new Bill. I am sure that he is a stout campaigner for equal rights and opportunities for all. That is indeed highly commendable, and especially in the modern world in which we live and work. I too am in favour of equal opportunities. As I said at Second Reading of the old Bill, I have no difficulty in principle with the idea that my eldest child, whether male or female, should inherit my family's title". — [Official Report, 26/11/92; col.1134. But, sadly, the noble Lord's Bill gives equal rights to some while disenfranchising others, including my eldest son and heir, of their rights and expectations. If this Bill is enacted in its present form, my rightful heir at present will be under the age of 18 (he is 16) and will automatically lose his Viscountcy and his birthright to the Earldom of Shrewsbury and others in favour of his elder sister. If his elder sister inherits the titles I hold for my life under this Bill, will my eldest son be able to retain his courtesy title? If my daughter then bears as first born a son while his uncle is alive, what title will be given to that child? And so we continue— altering the peerage, altering inheritances and generally creating a mishmash which will certainly arouse much uncertainty, let alone problems, especially for the College of Heralds.

I do not believe that the noble Lord's new Bill has addressed the problem of the antagonism which will be experienced in families, with some being stripped of their titles while others gain a title; with titles branching out left, right and centre. A tree is a complex plant: the more widespread become the branches the weaker becomes the trunk until finally the trunk splits and the tree dies. Surely the noble Lord does not wish for such a fate to befall noble Lords' family trees.

I do not believe that the noble Lord's Bill has addressed the matter of the hereditary peerages of Ireland, perhaps because they do not affect this House. Nevertheless, it is a matter of relevance. Nor has the noble Lord's Bill addressed the problems which will be experienced by those of your Lordships who are the tenants for life of family trusts written in tail male only and by Act of Parliament. What will happen to the female heirs to an hereditary peerage if they are not allowed to benefit from the trusts set up specifically for the heir to ensure his family's financial security and originally for the financial support of his dignity, but in tail male alone?

On this matter I must seek the advice of my noble and learned friend the Lord Chancellor. But from what he suggested in his remarks at Second Reading of the previous Bill, this is a pretty complex area in its own right and a potential minefield in which I am sure only the lawyers will be the winners.

No matter how much thought the noble Lord has put into this Bill; no matter how hard he has tried to appease the concerns of noble Lords stated at the previous Second Reading, I cannot accept this Bill in its present form. It is an extremely complex subject. I really cannot support a Bill which, if enacted, will cause in families some pretty vile consequences of jealousy and worse. They are all feelings which are part of human nature.

I grew up in a family which was split and divided through a particularly unpleasant divorce in the early 1960s. I can assure your Lordships from my own experience that I would not wish such an experience on my arch enemy. The inter-family frictions which the noble Lord's Bill will inevitably cause are no different from that. I really cannot support a Bill which will take away the rights of a very small minority, especially in these days when small minority groups (which of course we are) are supposed to be protected. If the thinking behind this Bill and the consequences thereof, were it to be enacted, were imposed on virtually any other minority group in 1994, the screams about injustice being done would be heard far and wide and the first stop would probably be the European Court of Human Rights.

No matter how true and honest the thinking behind the promotion of this Bill is— and I have no doubt whatsoever about that— it is a Bill which is unfair to many who are involved by family tie. This House's great strength has always been that it has addressed problems very carefully and has always done its very best to secure a final outcome which has been fair to all. The noble Lord, Lord Diamond, will I am sure see that I am just arriving in my "middle age". I have nothing like the knowledge or the experience which he has gained in a lifetime of public service and achievement. But if we are seriously intending to alter a system which has been around, whether rightly or wrongly, for so many hundreds of years, we must do it with the utmost care, for we are talking about people, their children and their families. I firmly believe that the present system ain't really broke and therefore there ain't no need to fix it, without thinking very carefully indeed, taking all the problems and consequences into account. I beg to move.

Moved, as an amendment to the Motion ("That the Bill be now read a second time") to leave out ("now") and at end insert ("this day six months"). — (The Earl of Shrewsbury.)

6.18 p.m.

Lord Strabolgi

My Lords, I am sure that we are grateful to the noble Lord, Lord Diamond, for introducing this Bill and enabling the House to discuss possible amendments to our peerage law. I am sure that we shall have a most interesting debate. I admire the noble Lord's tenacity, although I hope that he will not mind my saying, with respect, that in many ways this Bill is no better than the previous one though I know that the noble Lord's intentions are laudable.

I agree with a great deal of what the noble Earl, Lord Shrewsbury, said. As he said, the Bill is fraught with difficulties. If it went to a Committee stage it would have to be almost entirely rewritten. Clause 1, for example, states: if it please Her Majesty she may amend the letters patent creating any hereditary peerage to permit that peerage … to descend to the eldest… child … whether male or female". Is it proposed to advise the Sovereign that all Letters Patent for peerages should be altered in favour of heirs general instead of heirs male on the death of the holder, as the noble Lord said, or is every case to be considered on its merits? Suppose some of the family, some of the heirs presumptive or other heirs object, there would then no doubt be disputes and the Crown would be dragged into them.

Clause 2(a) is also most confusing. The noble Earl has already drawn attention to the problems and uncertainties that would be caused by the age limit of 18 on the male heir. And why 18, one may ask? Why not 16 or 21, the age when a Peer can take his seat?

Clause 2(b) deals with the succession of relatives. Here, there is not an age ban, but a delay of 10 years before the Act would apply. Such a relative is described as an "heir", which is certainly not correct. Only the eldest male child of the body can be described as the "heir". All other relatives, both near and distant, as the noble and learned Lord, Lord Jauncey of Tullichettle, reminded us during the last debate, are "heirs presumptive". If the Peer concerned has no children and, for example, he has, as heirs presumptive, a niece and a nephew, the. girl being the elder, the effect of the Bill would be that if the Peer dies before 10 years, the nephew inherits, but if he dies after 10 years, his niece succeeds him. I can imagine, as the noble Earl, Lord Shrewsbury, said, much confusion, uncertainty and family friction during what could be a long run-up period.

Those examples, I submit, show that the Bill in its present form would bring more problems in its train than it attempts to solve. I sympathise with the noble Lord, Lord Diamond, who has clearly tried hard to find an acceptable form of drafting. The problem, if I may say so, with the noble Lord's Bill is that it attempts to do too much. I believe that the best course would be for the House to appoint a Select Committee to consider any changes to peerage law in cases where there is no male heir of the body. It is for that reason that I have ventured to table a Motion that the Bill, if your Lordships should give it a Second Reading, be committed to a Select Committee. I shall move the Motion in that event at the end of the debate.

There are three areas in which I suggest that changes could be made arid which I hope a Select Committee would examine in detail. The first is a case where a Peer dies leaving a daughter or several daughters and no son. If the peerage is by Letters Patent, none of those girls can succeed, and the title goes to a relative who may be a cousin or even a distant kinsman. In such cases, why cannot the eldest daughter succeed as of right, as in certain Scottish peerages and, I believe, one or two English peerages of the medieval period with remainder to heirs general? As the noble Lord, Lord Diamond, rightly pointed out, one advantage of that would be that the property and the title would be kept together.

It was suggested during the previous debate that such a course would be unfair to heirs presumptive who have, of course, legitimate expectations— and these I fully understand. However, as the noble Lord, Lord Diamond, pointed out, the late arrival of a male heir of the body will always upset such expectations. I think that it was Benjamin Franklin who wrote: but in this world nothing can be said to be certain, except death and taxes". Secondly, where there is no son and no surviving relative, there is surely a case— is there not?— for the eldest daughter to succeed (or the only daughter) to prevent the peerage from becoming extinct. During the past 23 years, over 80 peerages have become extinct, some of them well-known titles with historic connections. I think it is a pity to see them disappear in that way.

The third area where I suggest that changes could be made is in the case of Baronies by Writ. Here I must declare an interest as I am the holder of a Barony by Writ although I am not directly affected. A daughter can succeed to a Barony by Writ if there is no son, but if there is more than one daughter, the barony falls into abeyance between them as co-heiresses. There may be other co-heirs as well. It remains in abeyance unless a petition is made to the Sovereign, followed by a lengthy and often expensive peerage claimant case. If the claim is granted by the Sovereign— and all titles flow from the Sovereign— one of the daughters succeeds. If it is not granted, the peerage remains in abeyance. As no other relative can succeed, unless eventually all the daughters die without issue or there are no descendants, I submit that there is a case for allowing the eldest daughter to succeed by right to all Baronies by Writ when there is no son. There are at present 47 Baronies by Writ, of which six are held by Peers of higher degree, and 14 remain in abeyance, so the numbers are not large.

One result of any reforms in favour of women would be the welcome addition of more women Peers in this House and we all know the tremendous contribution which women Peers make to our debates. But wider descent through the female line would mean that fewer peerages would die out and there would be an increase in the hereditary membership, as long as the House remains unreformed.

Your Lordships' House has a long tradition of Select Committees on Public Bills and during this century there have been over 50 Select Committees, many on important subjects, which have led the way to useful reforms. A Select Committee would hear evidence from outside witnesses, including authorities on peerage law, and would report back to the House on whether any changes were feasible or desirable. I hope that your Lordships will agree that that is the best way forward.

6.27 p.m.

Lord Hesketh

My Lords, since the House last debated this subject in the last Session, the noble Lord, Lord Diamond, has done his best to address many of the objections to his Bill which were raised in the debate on that previous occasion. As a result, the Bill now before your Lordships is some three times as long as its predecessor. In spite of the noble Lord's efforts, I regret that I am no more able to support this Bill than I was able to support the Bill in the last Session. In my view, the principle of the Bill is fundamentally flawed and it is not susceptible to improvement by way of amendment.

The principle of the Bill is very simple. It is to enable hereditary peerages to be inherited by the eldest child irrespective of whether that child is male or female. I imagine that very few, if any, Members of your Lordships' House would quarrel with that principle if it were confined to the hereditary peerages to be created in the future. If that were what the noble Lord's Bill did, I should be in favour of it. The present rule is that although the Sovereign may make a Peer of whosoever she pleases, the descent of that peerage has to be in conformity with the general law which means, in effect, to heirs male lawfully begotten. If Parliament were to change that rule so that it would be lawful for a newly created peerage to descend to the eldest child irrespective of gender, that would, I believe, be widely welcomed.

But the Bill before your Lordships' House does not confine itself to the future. It seeks to apply the new principle to the past. In doing so, it seeks to overturn what has been one of the basic tenets of peerage law over many centuries. My fundamental objection to the Bill is that it ill becomes those of us who have so greatly benefited from the inheritance of the past to assist in such an act of violence against the thread which links that past, through the present, to the future.

A peerage was granted in a way which seemed right at the time— in a way which was in accordance with the conventions and customs of those times. It would be wrong to seek, retrospectively, to abolish the premise upon which an honour was granted originally merely in an effort to make the House more acceptable to the modern age. We may as well face it, we— that is, those of your Lordships who are privileged to sit here by virtue of a hereditary peerage— are not necessarily entirely approved of by the principles embodied in the Bill, and also possibly— just possibly— by some Peers who sit in your Lordships' House, and others who sit outside your Lordships' House. It would be an act of great naivety to suppose that we would suddenly become respectable in their eyes if only we turned our backs upon this one aspect of our inheritance and embraced the principle enshrined in the Bill introduced by the noble Lord, Lord Diamond.

Your Lordships may well remember how the noble Baroness, Lady Mallalieu, told the House on Second Reading of the Bill in the previous Session that she was in favour of it on the grounds that it was a palliative measure, essentially of a temporary nature— something that would make the House slightly more respectable in the few years remaining to us before more robust root and branch measures would be visited upon your Lordships. I may be cynical but I do not believe that it would help in the slightest. I fear we should only make a laughing stock of ourselves, and merely hasten the day when the hereditary element in your Lordships' House, no longer willing to stand up even for itself— it is certain that no one else will— is swept aside. None of us knows what the future holds or will bring, but I should prefer to await whatever fate may have in store by keeping faith with future generations as past generations kept faith with us.

In one of the peerage cases that came before this House in the last century Lord Erskine said: It is one of the brightest privileges of our order that we transmit to our descendants a title to the honours we have inherited or earned which is incapable either of alienation or surrender". In the case of many historic and ancient peerages now present in the House alienation is precisely what the Bill would achieve. Titles which have been held for many generations by one family with one family name will soon, by the inevitable effect of the Bill, pass out of that family and be vested elsewhere in a family with a different name. I am afraid that I find that prospect wholly tragic.

Before I sit down I should like to say something about the Motion standing in the name of the noble Lord, Lord Strabolgi: that the Bill, if given a Second Reading, should be committed to a Select Committee. With the greatest respect to the noble Lord, I do not believe that the Bill is suitable for the Select Committee procedure. A Select Committee is intended, as Erskine May has it, to enable more minute investigation than is possible in a Committee of the Whole House, or where the hearing of evidence from outside bodies is considered desirable.

One has only to look at Bills which have been committed to Select Committees in recent years to see how inappropriate it would be to add this Bill to their number. They have been Bills which have required outside and expert opinion. I imagine that the House would have wished to be assisted by interested parties outside as well, but in the case of this Bill what conceivable outside evidence could assist us in coming to a decision? I venture to suggest that the House already includes within its ranks all those who are best qualified to advise on the intricacies of peerage law, and that if the principle of the Bill introduced by the noble Lord, Lord Diamond, is accepted, we within the House can carry out whatever amendment is required.

For the reasons which I gave earlier, I hope that the Bill will not be given a Second Reading and that therefore the question of a Select Committee will not arise.

6.35 p.m.

Lord Jauncey of Tullichettle

My Lords, perhaps I may first express my gratitude to the noble Lord, Lord Diamond, who was good enough to send me advance warning of the debate, probably knowing that I should be unlikely to support the Bill. That was extremely fair and I am grateful to him.

I propose to talk about two questions: first, is it competent in principle to amend an existing patent or charter of peerage? Secondly, if it is, is it practicable to do so in such a way as to give effect to the intentions of the Bill? I am somewhat confused now as to precisely what are the intentions. When I read it, I assumed that what was intended was that in the event of the holder of a peerage wishing to alter the devolution of that peerage to enable his eldest daughter to succeed, he would be able to petition Her Majesty and that she, no doubt on the advice of Ministers, would grant or refuse that petition. But, from what I have heard so far, I understand that it is the intention that it will be automatic, and that it will apply, as the noble Earl, Lord Shrewsbury, suggested, to all peerages, whether the holder petitions o: not. No doubt during the course of the debate we shall be enlightened as to precisely what is intended, but that must be a matter of fundamental importance.

Having prepared what I have to say upon the basis that Her Majesty was going to exercise her discretion, I propose to proceed upon that basis. Assuming then that there is a discretion in Her Majesty, can she properly amend a prior writ? I cannot speak for the position in England, but in relation to Scotland I have been unable to find any instance in which an amendment to a pre-Union Scots peerage was ever made. I cannot of course say that I have been through the Great Seal Register or Balfour Paul's Scots Peerage page by page to verify that, but there is no mention of it in Riddell's Peerage Law, which is an authoritative 18th century textbook upon the subject. What, of course, was the practice in Scotland was a resignation by the holder of the peerage into the hands of the Sovereign, followed by a regrant on a new line of heirs. Often the original grantee of the peerage would make the resignation and there would be a regrant, perhaps because he had no male issue, something had gone wrong and the child had become a traitor, or something of that kind.

It is probably fair to say that in the majority of cases where such a resignation and regrant took place it was within a relatively short time of the initial grant of a peerage so that there was no problem about cutting off legitimate expectations of numbers of the descendants of the original grantee.

I do not know what is the position in England, but I can give one example which might suggest that amendment was not thought appropriate. In 1889, two days after the Earl of Fife married the then Prince of Wales's elder daughter, he was created Duke of Fife with remainder to the heirs male of his body and 11 years later, having had two daughters and no son, he was again created Duke of Fife with a special remainder to the two daughters and their male issue. That strongly supports the view that an amendment to an existing writ was not possible.

An amendment would have been extremely simple. It would have been necessary only to add to the initial patent the words "whom failing" and the named daughters and their heirs. That was not the course adopted. The Queen conferred a second dukedom upon the Earl of Fife with the result that on his death, survived by only two daughters, the first dukedom died out and the second dukedom passed to his elder daughter. I have grave doubts about whether it will be competent for Her Majesty to amenc an existing charter of patent of peerage.

However, let us assume that it is competent. What does Clause 1(a) mean? Does it mean that only the present holder of the peerage can petition for himself or his descendants? Does it mean that the present and any subsequent holder can petition? If so, does he ask for descent to the eldest child of himself and his descendants or only of himself?

The problem is created by the use of the word "child", which never occurs in a charter of patent of peerage. It is always "heir" and that is for obvious reasons. One can be the child only of one's parent but one can be the heir of one's ancestor six, seven or eight generations back. The introduction of the eldest child — and that must be the eldest surviving child— is a totally novel concept in peerage law.

The patent is a grant to the nominee and the specified line of heirs. As the noble Lord, Lord Strabolgi, said on the previous occasion on which the House debated an Hereditary Peerages Bill, it is a grant or gift to the whole family. Clause 1 seeks to terminate the existing line and to substitute whoever applies to Her Majesty— that is, the holder or the petitioner— an entirely new line of heirs to the succession.

On the other hand, by the use of the word "relative", Clause 1(b) appears to recognise that descendants of the original grantee who are not descendants of the petitioning Peer would enter as future holders of the title. These are somewhat contradictory provisions. The word "relative" is one of great imprecision. If the Peer who applies to have the destination altered has no children no doubt it will be simple to provide some formula, such as the daughter of his deceased brother, to follow him. But how does he provide fir one of a number of relatives succeeding his own eldest daughter in the future?

The introduction of the word "relative" is a novel concept. Perhaps I may give your Lordships two examples. A petitioner's only daughter dies without children and is predeceased by two first cousins. Cousin A, the elder, leaves a daughter and cousin B, the younger, leaves a son. How does one devise a formula which will ensure that A's daughter takes to the exclusion of B's son? Alternatively, the petitioner dies without children and is survived by the daughter of an elder brother and by his younger brother. What will happen in that case? Will the succession go up, as it would to the heir of the original grantee— that is, to his niece— or does it go down to his younger brother as being the heir of him? These matters are not mentioned in the Bill. To add to a writ or to a patent such words as "whom failing heirs female or heirs general" would do no good because, as everyone knows, an "heir female" can very well be a male. So that would not achieve the Bill's objective.

I have thought long and hard to find a formula which will achieve what the noble Lord, Lord Diamond, clearly wants. Although one can cover some eventualities, I find it virtually impossible to cover such eventualities as are covered by the use of the well-known expression "heir". If, on the other hand, the amendment were to take the form of a total regrant— and then, of course, one would cut the legitimate expectations of persons in life now who could have succeeded in the event of the petitioner and his line dying out— one could result in extinction where that would not otherwise have taken place. If one limits the descent to the descent of the petitioner applying to have the devolution altered and his descendants die out, then persons who might have succeeded otherwise would be cut out and that would be the extinction of the peerage. Finally, one has the impossibility of devising a formula.

As the noble Lord, Lord Strabolgi, said, the Bill does not deal with baronage by writ nor does it deal with the situation in which the charter of the peerage has been lost, such as in the case of Ruthven of Freeland. There must be other peerages where such an event has occurred. Nor does the Bill deal with the plurality of peerages. If the holder of the peerage is to apply and he has several peerages, can he apply for one and not for the other? Can we envisage a situation in which we have a Lord Mowbray, a Lady Seagrave and perhaps a Lord Stourton of future generations sitting side by side? I do not know, but those problems necessarily would be addressed.

As I said when the previous Bill was debated. The devolution and succession to peerages, with all their different destinations both in Scotland and in England, was far too complex a subject to be dealt with in a one-clause Bill. I am afraid that even though the Bill has doubled in size I must express the same view. Therefore, I support the amendment tabled by the noble Earl.

6.47 p.m.

Lord Campbell of Alloway

My Lords, like noble Lords who have already spoken, I salute the perseverance, courage and good intentions of the noble Lord, Lord Diamond. However, the purpose is to support the amendment and to oppose the Motion.

Although the Bill accepts that the holder should not influence a succession and cannot initiate change, it is flawed and is open to the most serious objection on other grounds. If the Bill were to be given a Second Reading substantial amendments within the wide ambit of the Long Title would be tabled. As the noble Lord, Lord Strabolgi, fairly concedes, they would alter the whole form and intendment of the Bill. That surely would render commitment to a Select Committee inappropriate and premature as the form and intendment would not have been resolved by the time the Motion was moved. There is also the point made tellingly by my noble friend Lord Hesketh that the Bill is not suitable for commitment for all the detailed reasons my noble friend gave and for the reason in principle that the measure cannot be improved by any amendment. The principle is not capable of amendment.

Surely, the fundamental question is whether the limitation upon the Crown to grant a peerage which descends according to the rule and practice of modern times should be removed—that is to say, whether the modern practice of descent to heirs male of the body with an occasional addition of special remainders with ultimate descent fixed on the heir male—should be abrogated as proposed in the Bill. Your Lordships may consider that that practice should be varied, but surely not as proposed in the Bill. It could be varied to confer descent only to the eldest daughter, the eldest lawfully begotten female child of the body where there is no lawful male heir and no relative to whom the peerage may pass under the grant in order to save extinction of the peerage. That would have the effect of saving the peerage from extinction and would, it is thought, be compatible with the dignity of the monarch by the process of grant and re-grant, or by some formal amendment, if that, subject to what the noble and learned Lord, Lord Jauncey of Tullichettle, said, was possible.

Such a form of variation of the practice would not operate with retroactive effect in defeasance of any legitimate expectation of vested (albeit contingent) rights of the heirs. As my noble friend Lord Hesketh rightly said, the proposals as drafted in the Bill apply a new principle to the past. The suggestion that I have made to vary the form in which descent may be granted, derives from the Heirs General Consent which governs the destination of many Scots peerages. In fact, as noble Lords probably know, male descent in Scotland is the exception rather than the rule.

As to the amendments which would alter the intendment, first, there would be the amendment to which I and the noble Lord, Lord Strabolgi, referred, to confer an entitlement to descent upon the eldest lawfully begotten female child of the body with ultimate descent fixed in an heir male line to save extinction of the peerage. Secondly, an amendment would surely be required to confer jurisdiction on the courts, both in England and in Scotland, to deal with the practical problems arising where property descends through trusts to male heirs and from separation of property from title in such circumstances. With respect to the noble Lord, Lord Diamond, I wonder whether, with his analogy to the tax legislation, he has really given sufficient thought to the intricacy of the problem. As a common lawyer, I confess that it is beyond my province. It is extremely complex.

The third type of amendment, to which the noble Lord, Lord Strabolgi, referred, is under the Baronies by Writ to save abeyance if there is no male heir and to establish an entitlement upon the eldest daughter so that it does not fall into abeyance for want of agreement between the daughters. The final amendment which, if the Bill is given a Second Reading, would no doubt be tabled would remove the divergence between the laws of England and Scotland as to the law on legitimacy by subsequent marriage as affecting succession to a peerage.

I mention those amendments because, if the Bill is given a Second Reading, such amendments could not be drafted without specialist expertise of the highest order. Noble Lords may well think that such questions are of sufficient importance to warrant consideration, perhaps, by a Royal Commission, but that really the Bill should not be given Second Reading to afford consideration. At all events, as the noble and learned Lord, Lord Jauncey of Tullichettle, pointed out, Clause 1(a) confers a discretion upon Her Majesty to confer descent to the eldest child if so pleased, "whether male or female" but without any obligation to exercise such a discretion. Apart from the substance of the provision which is open to objection for reasons that have been given, Clause l(b) would go, Clause 2 would go, and new clauses would be introduced to reflect the amendments which would be tabled by your Lordships.

As I understand it, the motive of the noble Lord, Lord Diamond, in tabling the Bill is to avoid sex discrimination and to afford equal opportunities. The sincerity of his motive is assuredly not called into question. But is it really not much to be doubted whether such discrimination as ordinarily understood arises at all? One cannot deal with sex discrimination or unequal opportunities by, so to speak, this back door. Perhaps a Royal Commission would be an appropriate body to take such representations into account. On objective analysis, this is not the occasion upon which we are concerned with the quality of distaff contribution to your Lordships' House which is of the highest order; or, indeed, with the composition of the House on which it is understood the policy of the Benches opposite is to reject the hereditary principle of statutory legislators. It is a veritable hornet's nest of controversy beyond the remit of our considerations today.

The question is whether, in the light of cogent objections in principle, the Bill should receive a Second Reading as an appropriate vehicle for amendment of the law relating to hereditary peerages, having regard to the fact that if it were to survive a Third Reading it would be an altogether different Bill. Even the female phoenix which rose from the ashes would be a total stranger to the daydreams of the noble Lord, Lord Diamond, to whom noble Lords are assuredly most indebted for this opportunity to debate this matter.

7 p.m.

Lord Addington

My Lords, we are discussing a Bill which is truly an example of somebody having listened to one debate and come back having answered the questions that were put to him for that debate. However, he has now had a new set of questions put to him. A lot of what is said here depends on your interpretation of logic. We seem to be interpreting logic in the way that perspective is interpreted: it depends on where you are standing.

The noble Earl, Lord Shrewsbury— whom I hope I may refer to as a friend, if not my noble friend— gave us a wonderful example of somebody taking their view of what was logical from where they were standing and the problems around them. There are always problems around you depending on the viewpoint. I would put my argument as someone who is standing in a different position.

My father had an elder sister and I have an elder sister. I have always regarded it as luck or pure chance that I was entitled to be part of your Lordships' House. I have no special qualifications. I came to this House very young. People say of elder sisters— as indeed did my noble friend Lord Redesdale on the previous occasion that this matter was debated— that they would not want to be a part of the place. I remember what it was like when I first came here. My first impression was, what on earth am I doing here. Anybody who in their early twenties came to your Lordships' House and did not have that feeling, I would suggest. should be banned from the building.

We have heard much about legal problems. Of course there are legal problems with this, but the reason for most of them is that we seem to be tinkering with law as opposed to fundamentally changing it. The function of Parliament as a whole is to change law. On the previous occasion we heard about history being changed. We change history every time we pass a Bill. We made a fundamental change in our system of government when we chopped off the head of a monarch who had been divinely anointed and chased out one of his sons. Parliament in general then decided that the sovereign would be a sovereign within Parliament. Then another place decided to get rid of the franchise as it stood in 1832 and replace it with a different system. Many of the seats and boroughs of that period had a far longer history than my title and indeed the titles of most of the hereditary Peers who are Members of this House. Some are older but the majority would find themselves relative newcomers compared to some of the medieval franchises. Those were done away with. So we probably have an historical precedent, if we are going to worry about history, for a radical change in the membership of Parliament.

When it comes to dealing with sex discrimination we are probably in a situation where it just does not make sense. There is nothing else to say. We have accepted that the female of the species has equal rights, yet we turn around and say but they cannot join this selective club which comes about by accident. Those attitudes are not compatible. Either women are treated on even terms or they are not.

If we accept that we can change the membership of Parliament, we next come to consider the principles behind the noble Lord's Bill. If there is a perfect piece of legislation I have not seen it yet. I know that I have been here only five years, but I have not seen it— certainly as a full-time Member of this House. But we can change some aspects of the Bill if we want to.

I appreciate that the points that I make from my moral standpoint and the position in which I find myself may well not be endorsed by other Members of your Lordships' House. But we must ask ourselves some very big questions. We are sovereign in Parliament. If we can agree and take something forward on which we can convince the other place, we can change anything. It may be difficult and take vast amounts of time, but we can do it. There is no question about that. Also, all of this can be done with the right will. Whether or not we want to or whether it makes sense to individual Members is something totally different. But the fact is that we can do so if we want.

I am afraid that I oppose the Motion of the noble Lord, Lord Strabolgi, for the simple reason that I do not believe it is something that we should discuss away from the Floor of the House. This matter is fundamental to us; it is not just a point of detail. If we wish to go further with this debate, it must be done on the Floor of the House. There must be full co-operation and voices must be heard from all round the House. It is a radical decision. But we have already tinkered with the number of people who come to this House. The fact that there are Life Peers and noble Baronesses in this House at the moment proves that we can bring about change at the edges. We are now talking about changing the centre. But we can make changes. There is no reason why we cannot pass this matter through our own House if there is sufficient will. I suggest that before we consider how we vote on the various Motions before the House tonight we try to get very clear in our minds exactly why we are voting.

7.6 p.m.

Viscount Montgomery of Alamein

My Lords, the noble Lord, Lord Addington, is quite right. This is a perfectly legitimate matter to be brought before your Lordships' House. I just wonder whether it would not be a good idea for it to go to a Select Committee because, if the full House considered it very much further, it would take up an inordinate amount of time since it is a complex matter.

The noble Lord, Lord Diamond, is to be congratulated on his persistence. Last time around, when I was unfortunately away and could not speak in the debate, the Bill was killed off by my noble friend Lord Denham. On this occasion the hatchet has been wielded with great charm and eloquence by my noble friend Lord Shrewsbury, supported with great vigour by his and my noble friend Lord Hesketh.

In discussing this Bill outside the Chamber I have gained the impression that there is some misunderstanding about what would happen to the Bill if it went to a Select Committee in that it might open up a whole discussion on the more general reform of the House of Lords. I have presumed that any committee, or Select Committee, would consider the Bill as it stands irrespective of whether or not the House is reformed at any future date; in other words, this Bill concerns peerages whether or not they are accompanied by political and legislative privileges and responsibilities. That is a matter on which I welcome the views of my noble and learned friend the Lord Chancellor when he comes to speak later in the debate.

I declare an interest in this matter in that I have one son and he has three daughters. There is nothing very unusual about that but, as in the case of many peerages, in those circumstances the title will become extinct as things stand. The reason for my intervention tonight is history, specifically 20th century history. I have no estates, property or grand medieval titles with vast numbers of kinsmen. I have only 20th century history. When my father was ennobled at the end of World War II he incorporated Alamein— his first important battle — into the title. This was a victory which many historians and indeed others consider was the turning point of the war. He subsequently went on to be responsible for much larger and more important military operations such as D-Day, which we will commemorate this year.

It is obviously a great responsibility to bear a title of such great historic significance and I naturally hope that it will continue for that reason. But the point that I have made is specific; and I believe that consideration of this Bill is probably more suited to a Committee or a Select Committee, or whatever should be decided. Unfortunately, judging by the tenor of many of the speeches we have heard tonight, I am not overconfident that the Bill will get that far, and it is for that reason that I felt it appropriate to intervene briefly at this stage of the proceedings. Obviously I am totally prejudiced in this matter. I have no reason not to be so. I declare that prejudice and for that reason I shall support the Bill.

7.11 p.m.

Lord Simon of Glaisdale

My Lords, this bee has been buzzing in the coronet of the noble Lord, Lord Diamond, for a long time— I believe he mentioned 10 years— and it is splendid that he has again let it out on a nuptial flight. I hope very much that he will be more successful than on the previous occasion although at that time I took leave to oppose the Bill and to speak and vote against it. On this occasion the noble Lord, Lord Diamond, has made alterations in the Bill to meet the views of those who opposed it last time. The noble Lord, Lord Strabolgi, has provided us with a method of dealing with residual difficulties and therefore, in my submission, your Lordships should vote for the Bill today.

On the previous occasion there were three main objections to the Bill which made us feel that it was fatally and irredeemably flawed. In addition there were a number of peripheral difficulties which we felt were not solved by the Bill and were certainly not soluble in a Committee of the whole House but which nevertheless, for reasons that have been given, are soluble in a Select Committee which can take expert evidence and which can discover the facts behind such a difficult subject as the barony by writ and multiple title. The combination of such a Select Committee and the modification of the Bill by the noble Lord should encourage your Lordships to take the usual courteous course of giving it a Second Reading.

I did not understand the noble Lord, Lord Addington, when he said that this should be a matter for a Committee of the whole House. If it goes to a Select Committee, it will come back to a Committee of the whole House. That was a quite unreal objection. On the other hand, the detailed criticism by my noble and learned friend Lord Jauncey and by the noble Lord, Lord Campbell of Alloway, points strongly in favour of examination by a Select Committee in advance of examination by a Committee of the whole House.

I wish to deal with the major respects in which we found the Bill flawed on the previous occasion but where the noble Lord, Lord Diamond, has met our views. First, the previous Bill gave a discretionary option to the holder of a title to petition the monarch to decide between a daughter and a son or other male heir. Your Lordships all felt that that was highly objectionable because it would engender family disputes and bring them into the public arena. The second and connected reason was that the discretionary option faced the monarch with an insoluble problem. It brought her directly into family disputes which would sometimes be of a party political complexion.

The third, and perhaps most potent, reason was that the previous Bill was felt to be unfair to existing heirs expectant. That was put notably by the noble Lord, Lord Denham, in moving an amendment similar to that which the noble Earl has moved today, when he said we were in danger, in correcting one injustice— namely, to women— of creating another injustice; namely, to the expectant heir male.

I wish to deal with the concept of heirship. There can be no heir to a Irving person because the heir is the person who succeeds on the death of— to use a technical phrase— his ancestor. What we recognise are heirs apparent and heirs presumptive. We recognise that they are people who are likely to be heirs on the death of the ancestor. If the holder of a title— or property, formerly — has three daughters and a son, the son under the existing law is heir apparent because he will certainly succeed provided he lives longer than his father. On the other hand, the ancestor may have three daughters and a younger brother. The younger brother is an heir expectant because his right to succeed on the death of the ancestor is dependent on his elder brother having no more children.

One must remember that there are cases where children have been engendered by a parent at a fairly advanced age. We are all mourning the departure of Lady Elliot of Harwood. Her father was 80 when she was horn, and she was not the youngest member of the family. There is an example of the heir who cannot be ascertained until death— an heir apparent and an heir presumptive. I shall deal with that matter when we reach Clause 2 because the noble Lord's Bill extends the existing rights of heirs to heirs presumptive as well as to heirs apparent. It would be possible not to go so far. That is the kind of matter your Lordships will wish to examine in Committee.

Those, then, are the three main points, on all of which the noble Lord, Lord Diamond, has met the views that your Lordships expressed on the previous occasion. As regards the first point, the discretionary option, the noble Lord, Lord Diamond, told us that it did not give a discretion to the ancestor— the holder of the title— but was the usual courteous form for imposing a duty on the monarch. My noble and learned friend on the Woolsack will no doubt tell us whether he agrees with that. However, it is perfectly possible to draft it another way to make it more certain that there is no discretion on the part of the holder of the title and therefore no embarrassment to the sovereign.

I turn to the other matters on which your Lordships felt there were considerable difficulties. The first was baronies by writ. That issue was not addressed by the previous Bill, nor is it by this one. Yet it was one of the anomalies which caused many of us to resist the Bill last time. However, it is essentially a matter for consideration by a Select Committee, which can take evidence if necessary from experts on peerage law. I am well aware that in this Chamber we are lucky in having our own experts on peerage law among our Members. Nevertheless, it is desirable that those who are interested should be able to call their independent experts.

The second issue is the complication as to property. Last time I mentioned that, although the law of entail has largely disappeared from our English system, nevertheless there are exiguous remains. The noble Earl reminded us that a statutory entail still subsists. I was not sure from the speech of my noble and learned friend Lord Jauncey whether entail still exists in Scotland. Certainly, there is a famous Scottish novel which has The Entail as its title. The property aspects of the Bill must also be considered; that is best done by a Select Committee.

The third issue is a matter of which the noble Earl made valuable mention last time. I refer to the complication of English peers holding Irish titles and Irish offices. That is again a matter for a Select Committee. There is too the closely allied complication of more than one title being held by a single peer. That could be considered together with the Irish complication by a Select Committee.

A minor complication with which I should like to deal more specifically is the powerful argument that it is distressing in many circumstances if an ancient family name is separated from an ancient title. We will all have felt that particularly poignantly when it was mentioned by the noble Earl. That can already happen. It happens when a woman Peer in her own right marries and adopts her husband's name. One of the Curzon peerages passed to Curzon's eldest daughter, who became a Member of your Lordships' House in 1963. On her death the title passed to her nephew, who has a different name from the family name.

Lastly, I make this suggestion. As your Lordships know, the law recognises something called a name and arms clause. A testator can leave property to a collateral, say, on condition that the collateral accepts the name and arms of the testator. It would be easy to provide for a statutory name and arms clause in circumstances where the title might become divorced from the ancient name of the family. That could also be considered on expert evidence by a Select Committee.

I have dealt with the arguments advanced against the Bill last time. I have tried to show how overwhelmingly they have been met by the noble Lord, Lord Diamond, and, in so far as they have not been quite met, are perfectly exigible by a Select Committee. I do not like the end of Clause 2. I would omit the whole of the proviso, but again that is a committee point.

I come finally to the two main arguments in favour of the Bill. I need not enlarge on the first because it has been splendidly put to your Lordships. I believe that all of your Lordships are in agreement with the principle, which is very close to the heart of your Lordships, individually as an order and as a house of legislature, namely, consideration for women. That is something to which they are entitled. We would benefit all the more by the fact that it would strengthen your Lordships' House. As always, your Lordships, being practical statesmen, will measure the principle against the practicality and against experience. It is not only a matter of what women are entitled to, but also of the benefit which your Lordships' House will gain from admitting them to be Peers of Parliament in the circumstances that this Bill seeks to promote.

The second principle is the hereditary principle. I make no apology for saying that I am very strongly in favour of that principle. If your Lordships' House were to be reformed, as is threatened, I would be very strongly in favour of a hereditary element subsisting into the reformed House. This measure strengthens the hereditary element. A practical consideration mentioned by the noble Lord, Lord Strabolgi, is the extinction of peerages. I looked rather wider than the noble Lord. I looked back to the last 40 years. I was amazed to find that no fewer than 192 peerages— many ancient, many famous— have become extinct during that time.

I cannot avoid the temptation of quoting to your Lordships a famous piece of judicial rhetoric that was enunciated in your Lordships' House in the Oxford peerage case. The Earl of Oxford had died without male issue and the judges were called in to advise the House. Chief Justice Crewe said: Where is Bohun? Where is Mowbray? Where is Mortimer? Nay, which is more and most of all, Where is Plantagenet? They are entombed in the urns and sepulchres of mortality. And yet let the name and dignity of De Vere stand so long as it pleaseth God". Whatever view we take on the Bill, all noble Lords will agree that the question,"Where is Mowbray?" will be most happily answered when I sit down.

7.30 p.m.

Lord Mowbray and Stourton

My Lords, the noble and learned Lord is too kind. Perhaps I might humbly correct him on one small point. When the great Marquess George Nathaniel Curzon died, the heir to the Curzon titles as of yore, the Viscountcy of Scarsdale, went to his cousin—

Lord Simon of Glaisdale

My Lords, the noble Lord will know that I was referring to the Ravensdale part.

Lord Mowbray and Stourton

My Lords, I took the point. Lady Ravensdale, the only daughter, was his heir general, but his heir male was her first cousin who became the next Viscount Scarsdale. There was no reason why she should take the name of Curzon as she was not the heir male.

Having said that, perhaps I may congratulate the noble Lord, Lord Diamond, on bravely bringing back the Bill to your Lordships' House, as he thought, perfected. I fear that he must be somewhat disappointed that it has not been given universal blessings from heaven. Nevertheless, he is earning high marks for trying.

As I had expected to be in the Far East today, I had not set out my speech. When I discovered that I was not travelling until later, I determined to speak. However, your Lordships will not have a long exposé from me this evening. You had a long speech from me a year ago, and that is enough, I am sure. Nevertheless, perhaps I may raise one or two points. I shall not refer to the legal points, which have been cleverly covered by noble and learned Lords and by my noble friend Lord Campbell of Alloway.

I was surprised that the noble Lord, Lord Diamond, did not refer to baronetcies when he spoke about hereditary peerages. I know that baronetcies have little to do with the House of Lords, but they are hereditary titles of honour and many peerages have baronetcies. There is no reference in this Bill or in the noble Lord's previous Bill to that aspect. I should like to say again what I have always stated. In this country there is great respect for hereditary titles. As the noble and learned Lord, Lord Simon of Glaisdale, rightly pointed out, it is sad to see old family names separated from their hereditary titles. I do not see any of my Welsh friends on the Benches Opposite. But in Wales, as in Ireland, the chieftainships of local clans were always through the male line tradition. You tell the O'Neills that they are not the high kings of Ireland and they will pour scorn. Everyone in Ireland knows that these matters relate to the male line descent.

I do not believe that common sense necessarily supports the noble Lord on the fact that we shall gain kudos by opening up the line to the eldest child. The thought of 80 peerages dying out every now and again does not unduly worry me. It saddens me when old families die out but it does not unduly worry me because we know that, by and large, more peerages are being created. The numbers of Members of the House are not getting smaller. If we increase in numbers too much we shall have to build another House.

The noble Lord, Lord Addington, spoke movingly and appealingly from his heart. I thought of a little joke. If the noble Lord was like that at 20 it explains why Pitt was Prime Minister at 20 and Addington was not. Perhaps it is a slightly weak joke. Nevertheless, I remember the first time that I met the noble Lord. He is a most redoubtable person. I found myself next to him in the House of Lords tug-of-war team. We won that contest. I have always thought him a useful ally— although perhaps not on this occasion.

I return to a point about which I have always been worried. As the tourist industry in Britain will be aware, there are some great houses headed by great families with great titles. I think of Chatsworth, Badminton, Boughton, Drumlanrig, in Scotland and in England. Those families have been there for hundreds of years. If you separate the dukedoms and the earldoms from those old families will they continue if one loses the male line descent? Quite often the answer is yes, but sometimes no. For example, the eldest daughter might marry, shall we say, an American film star from Hollywood. The noble Marquess, Lord Bath, might believe that that would cheer things up. But I should also like to refer to my noble kinsman the Duke of Norfolk. He would be in a very tricky position because in the reign of Charles II Parliament tied Arundel Castle and the Earldom of Arundel on the Howards, Dukes of Norfolk. When the ninth Duke died in 1777, Arundel Castle and the title of Arundel would have come to my family when we became heirs general, but thanks to the Howards' cleverness in Charles II's reign the title stayed with the Howards. What will happen if the Bill of the noble Lord, Lord Diamond, becomes law? There one has an example which would have extremely complicated consequences.

The Somerset Dukes of Beaufort at Badminton are direct descendants of John of Gaunt. One cannot do much better than that. The direct Plantagenet line is still with us. It would be a tragedy to see that title going out of that family to a daughter, however worthy the husband. If there were no brothers, nephews or cousins, so be it. Then petition the Queen and gain a regrant. I suggest that that is the way to go about that situation.

Let us take another of the really old mediaeval nobility: the Nevilles of Abergavenny. Here one has the mediaeval aristocracy which did much good in the wars of France and in the Wars of the Roses, on whichever side they were at the time. They seemed to change their side occasionally. Nevertheless, those families continue very strongly. One can add all kinds to the list: the Scots of Buccleuch and. I mentioned Boughton. It would be appalling if a daughter were to marry a Frenchman and the family became French. Half the fun of the Scots Dukes of Buccleuch would go. My noble friend Lady Carnegy, sitting beside me, is a member of a distinguished branch of the Carnegie family, the Earls of Southesk. They would be appalled to think of the Carnegie blood going out to a Sassenach, or something worse.

I have made all those points before, I only need to emphasise the laws of heraldry about which noble Lords may not know or think much but which are definite, historic and accurate. In European chivalry, heraldry has been well understood since the Middle Ages. It was one of the more civilising influences of the Hundred Years War and all the other horrible wars of those days, just as horrible as our modern wars. However, the heralds were the civilising influence. The quartering of arms, the depicting of arms and the passing of an heir male or heir general, the quartering and differencing, are all part of the apportionment of an estate.

In Scotland, Lord Lyon strictly controls such matters, far more sternly than does Garter King of Arms in London. The Lord. Lyon in Scotland is a judge and the noble and learned Lord, Lord Jauncey, will know that he can not only summon a person to his court but also he can punish them severely if he wishes. The Garter King can only tell him that he is doing wrong and advise him to pay a sum of money to get the arms corrected.

There are many such points which are peripheral to the debate and I have said enough. I can only beg the noble Lord, Lord Diamond, if perchance he were successful— which I hope he will not be— to consider that if the Bill either reached the committee of the noble Lord, Lord Strabolgi, or the Committee of the whole House, it would be possible for Peers to be allowed to be free of the Bill. There may be Peers who would opt to take their titles out of the Bill and keep the descent as suggested by the original grantees, the kings or queens concerned. That would meet my point of families being able to keep their historic titles. I do not suppose many would wish to do that, but a sizeable minority of substance and fame would. It would be good for the country not to lose those names, with them becoming separate from the titles.

7.44 p.m.

Lady Saltoun of Abernethy

My Lords, if tenacity be a virtue, then the noble Lord, Lord Diamond, must be the most virtuous soul alive. Your Lordships will not be surprised to hear that I do not like this Hereditary Peerages Bill any more than I liked its predecessor. Having said that,1 believe that the law governing the destination of peerages of England, Great Britain and the United Kingdom is capable of improvement by being brought into line with the law of Scotland in this respect. Other noble Lords have suggested this and I propose to explain a bit what that law was and how it arose.

In Scotland in early times, all titles were tied to fiefs or freeholds of land held of the Crown in chief, in return for military service. The right to sit in Parliament was tied to the fief, not to any specific person. Whoever owned the fief had the right, unelected, to sit in Parliament. The Scots Parliament consisted of the three estates: the barons, which included earls and all freeholders, great or small; the Church and the burgesses. All sat together.

The barons were the holders of those fiefs which had been erected by charter from the Crown into a barony or regality, which gave the owner, among other things, the right and duty to administer justice. Some of the very large tracts of land were lordships or earldoms. The first earls were princes and superseded the ancient mormaers or regional princes in the time of Alexander I. Indeed, I think all Scots earls are princes. I do not know about English earls.

There were no dukedoms until Robert III created his eldest son, David, who died young, Duke of Rothesay in 1398. That dukedom is still held by the Crown and is today vested in His Royal Highness Prince Charles. Only six other dukedoms were created in Scotland before 1587 but they were ill-fated and none passed to successors. The first marquesses (which are sort of jumped-up earls, as indeed are dukes) were created in 1597 and the first viscount in 1606.

But the important thing is that every freeholder of a fief, held of the Crown in chief, however small, whether or not it was a barony, as well as the holders of baronies and earldoms, had a seat unelected, as of right, in Parliament. The right to sit in Parliament went with the fief, the barony or the earldom, and passed on the death of the holder to whomsoever inherited the land, as a rule the heir of the body, regardless of sex. If the fief were sold, the right passed to the purchaser, even in the case of an earldom. The destination might be varied when, as frequently happened, the holder resigned his holding to the Crown in return for a new charter, which might, for instance, erect a freeholding into a barony, or a barony into a regality; and a destination would usually be incorporated into that charter. Women were never deemed incapable in Scotland of holding or succeeding to land, and, where the heir was a female, she took, without division. There was no question of going into abeyance, it was cut and dried. The women, could not, of course, sit in Parliament themselves, but it was customary for their husbands to do so on their behalf and sometimes or frequently to take their titles. Eldest sons could sit in Parliament, both as freeholders, where they owned land, and representing their fathers or mothers.

Attendance at Parliament was no joy and privilege then, but a burden, and it was compulsory. Frequently it involved long journeys, at considerable expense. in bad weather, over almost impassable paths, with no inns and with the danger of attack by hostile tribes, even by wolves, so fines had to be imposed on those who absented themselves. If you were a very small freeholder you really could not afford it and there was no claiming expenses for attending in those days.

When James I returned to Scotland in 1427, after his long imprisonment in England, in the course of which he had received an excellent education and acquired modern ideas on the promotion of trade and agriculture, he was horrified at the poverty and ignorance he found and he resolved to introduce legislation to improve matters. This would involve holding frequent parlia-ments and he realised that in order to secure adequate attendance at these parliaments from the smaller freeholders, to balance the power of the greater barons, reform would be necessary.

The earls and larger barons were therefore appointed to be summoned to Parliament by a precept specially directed to each of them which they were required to obey. The smaller barons and freeholders were not excluded, but their attendance was dispensed with on condition that they appointed two proxies per shire or county to attend in their stead, whose expenses they would defray.

Shortly afterwards, poor chap, he was murdered and the creation of barons as lords in Parliament dates from the reign of King James II, his son. Among the first were Forbes, Gray, Saltoun and Borthwick. I am glad to see the noble Lord, Lord Borthwick, is in his place. These lords received no writs nor letters patent. They merely received the usual summons to attend Parliament and were created by investiture only, such as belting or cinctura gladii, analogous to feudal investiture. An entry would be made in the records or journal of Parliament and might or might not be followed by a charter specifying the destination. Copies were not always kept of the records (no back-up discs!) and many of the records were lost, stolen or sunk in a watery grave. So it is difficult to be specific about the destination in any particular case, except that in the absence of any evidence to the contrary it would be assumed to be to heirs of the body.

In 1587 King James VI completed the reform of Parliament which James I had started. He abolished the right that the tenure of land had given to a seat in Parliament. Thenceforth, no commoner had a seat unless elected. Two freeholders were to be chosen from each county to attend at the expense of all. Lords and earls still had to attend, moreover, and could not vote in the election of freeholders, just as today your Lordships cannot vote in general elections. From-then on, all peerages were personal and ceased to be dependent upon the ownership of the lordship or earldom. The impoverished Peer had become a possibility.

Peerages were mostly created by Letters Patent, and were not transferable but strictly entailed. In many cases the entail was limited to heirs male of the body, because only men could sit in Parliament. But in instances where there was no heir male of the body other arrangements were made. For example: the first Lord Balfour of Burleigh had only one daughter, so the destination was to his son-in-law. The first Lord Belhaven, having no male heir, resigned his title to the King, who re-granted it with remainder to his grand-daughter's husband and the heirs male of his body, whom failing, to his nearest heirs male whomsoever. They did fail, and— I hope that the noble Lord, Lord Belhaven, whom I see in his place, will correct me if I have got this wrong— the sixth Lord Belhaven was a descendant of the first Lord's great-uncle. The first Lord Nairn had an only daughter, and the remainder was to her husband and to the heirs male of their bodies, whom failing, to the eldest daughter or heir female to be procreated between them, without division. Thanks to those flexible arrangements the descendants of all three sit in your Lordships' House today.

The important point to note is that, although the Letters Patent creating dignities generally specified the destinations of the peerage conferred by them, it was, by the law of Scotland, competent to the grantee or any of his successors to resign such grant into the hands of the Crown in return for a new grant limiting the destination in such manner as the grantee, with the consent of the Sovereign, might direct. I believe that that law has never been repealed and might still be prayed in aid in the case of a Scots peerage. The right honourable William Grant, QC, Lord Advocate in 1962– 63 Session, wrote in Appendix 12 to the report of the Joint Committee on House of Lords Reform: The question remains as to whether the resignation procedure … is still competent so far as a Scottish Peer is concerned. I can find nothing in the Act of Union or in any later legislation to suggest that it is not". I do not know whether this procedure has been used since the Union. I do not think that it has. But no legislation should be necessary to enable the holder of a Scots peerage to take such a course of action, particularly where the peerage in question was in danger of extinction.

In the case of peerages of England, Great Britain and the United Kingdom, legislation would be required, and it might be possible to amend this Bill so as to achieve that effect. If the Bill receives a Second Reading I should endeavour to do so at Committee stage. But I hope that it does not get a Second Reading, and I shall therefore support the Motion of the noble Earl, Lord Shrewsbury, and vote for his amendment, should he decide to press it.

7.54 p.m.

Viscount Mountgarret

My Lords, perhaps I may dwell for a moment on the possible effects that the Bill may have on the peerage of Ireland. I must declare a close interest. Since 1966 this House has unfortunately behaved in what some of us feel to be an unconstitutional manner towards Irish Peers. If it is the Bill's intention to include them therein, then that means that another precedent will be set of illegality. My interest lies in history and tradition— two areas which these days seem to be more and more overlooked. I have to be a little personal here, and I hope that noble Lords will forgive me. I wish to speak on behalf of the Irish peerage and Irish Peers as a whole. I am the senior identifiable heir presumptive of the Earldom of Ormonde which was created some 600 years ago— another ancient title— including the Chief Butlership of Ireland, created some 800 years ago. That brings a certain amount of history into perspective. I feel that it is very important that the Irish peerage should be dealt with in the way that it should have been when the Act of Union was signed.

Before 1801, the House of Lords of Great Britain had no control whatever over peerages of Ireland. This House only acquired some such control by virtue of the 1800 Act of Union. The Statute Law (Repeals) Act 1971 broke the promise that Parliament had made to the Peers of Ireland in 1800. One of the consequences of that Act was to remove any ground this House may have acquired for having authoritative say in the succession to a peerage of Ireland. It is therefore my conclusion that this Bill cannot be allowed to proceed unless it is made clear that it would have no effect whatever on the Irish peerage. I hope that if the Bill receives a Second Reading, the noble Lord, Lord Diamond, will take note of this requirement and accept suitable amendments at a Committee stage. In any event, the Bill is a non-starter.

I go back, I am afraid to say, to my family. The reason why I say "heir presumptive" to the Earldom of Ormonde is simply this. The ninth Earl— my family is descended from the eighth Earl— had seven sons. The seventh son had 10 sons. Each of those sons and lines have to be killed off— for want of a better word— before our claim might have any effect. If this Bill were to come into effect, there would be a danger in the future of including daughters as well, making an already very difficult task virtually impossible, if it is not impossible already.

The other reason why I say the Bill is a non-starter is that to amend patents in this context is clearly breaking a promise. I would also have thought that the Bill is unenforceable. The main aim seems to be to authorise the monarch to create heirs general peerages. I have no quarrel with that principle. I would go along entirely with what the noble and learned Lord, Lord Simon, said, and with the equality of women. There is nothing at all wrong with that principle. But one fairly major point has been overlooked; namely, that the monarch already has the power within the Royal prerogative to grant heirs general peerages. I therefore feel that the Bill is superfluous to requirements; I cannot support it and cannot vote to give it a Second Reading.

7.59 p.m.

Baroness Wharton

My Lords, I thank the noble Lord, Lord Diamond, for introducing this Second Reading debate. I should like to share with noble Lords some of the difficulties of being co-heiresslo to a peerage. The Wharton barony was created by writ in 1544, and is thereby capable of passing to heirs general. It first fell into abeyance upon the death of the sixth baron but was revived in 1738 upon the death of his younger daughter. It fell into abeyance twice more before doing so yet again on the death of my mother, the tenth holder. Sadly, the family name has disappeared; perhaps a future heir could think about bringing it back by adding it to his or her name.

I was well aware that I was my mother's elder daughter, having only one sister and no brothers. But it was far from simple for me to prove that, and much else, as required under the Sumner Committee rules of 1926. Those rules apply to calling peerages out of abeyance and they necessitate a phenomenal amount of paperwork. My files are 12 inches thick. I was asked to produce every single possible birth certificate, marriage certificate, divorce certificate and death certificate, together with copies of all my predecessors' wills over the past 100 years. In all,35 separate documents were required. Naturally, that took a fair amount of time, let alone money.

Among other measures, the Sumner Rules require that there shall be no collusion with any co-heir. While my sister was willing that I should succeed, I can well understand just how difficult it must have been for her to renounce in my favour her rights to the title. There seems to be an inevitable conflict here. It could have created a level of dissension within the family which I feel that the law should not seek to impose.

In attending the Treasury Solicitor's office, my solicitor was advised: The Attorney General may well ask the petitioner what she does with her time". I mention that because it proved necessary for me to produce an affidavit as to my character. I am sure that none of your Lordships had to face such hurdles before taking his seat in this House. While it must be right that a title should not be shared between co-heirs, the existing rules make it very hard to determine which daughter shall inherit.

I come to Clause 1(a) of the Bill. My own view is that the peerage should descend to the eldest legitimate son and, if there are no sons, then to the eldest daughter. In passing, I sympathise with the argument that illegitimate children whose parents subsequently marry each other should have the same rights as the children born of that union.

Clause 2(a) as it stands would appear to be most unfair as male heirs are conscious from a young age of their inheritance. I am opposed to that kind of retrospective legislation. I should not like to have to tell a son under the age of 18 that he will not after all succeed me because he has an elder sister. If anything, Clause 2(a) should only apply to children unborn at the enactment of the Bill. However, if Clause 1(a) we're to be amended as I would wish, Clause 2(a) falls by the wayside.

It is important that there should be clarity in determining who shall inherit. I hope that none of my descendants is asked to go through what I went through in order to bring a barony out of abeyance, particularly when that abeyance is between parent and daughter.

8.3 p.m.

Baroness Miller of Hendon

My Lords, one of the many embarrassing faux pas that I committed in my first few days as a Member of your Lordships' House, happened when I was at the Peers' Table. I asked a noble Lord, whose name I mercifully cannot remember, whether he was an hereditary Peer. He stared at me with some surprise and said,"There are two types of Peer in this House: orphans and temps. I am an orphan and you are a temp."

It is with very great diffidence at my own presumption that, as someone who has only recently been given the great privilege of sitting with your Lordships, I have asked to speak on a Bill which may have a major effect on the composition of this House and which will impinge entirely on those of your Lordships who are here through the misfortune of being orphaned. I reluctantly intervene because I am the chairman of the Women into Public Life Campaign and a trustee of the Minerva Educational Trust, whose aim is to interest young women in politics and public life. I was the Adviser on Human Rights and the Status of Women to Soroptimist International from 1987 to 1990. Soroptimist International is the largest association of professional and business women in the world. I was also the chairman and executive director of the 300 Group from 1985 to 1988. The 300 Group campaigns to get more women elected into the other place. Obviously, we would welcome an opportunity for more women to be in this House. But that has to be as a matter of equal rights and emphatically not as an act of reverse discrimination. Therefore, I wish to congratulate the noble Lord, Lord Diamond, upon bringing forward this Bill again. I offer him my qualified support for this newest attempt at a Bill.

As your Lordships know, rules of succession in favour of sons have existed since the earliest of civilisations, even as far back as ancient Egypt, when the throne descended in the male line because the pharaoh was believed to be an incarnation of God. In England in feudal times the dignity of a baron was inseparable from holding land as tenant-in-chief of the king. Land was also an essential prerequisite of attending on the king in the great council of the realm. In mediaeval England the organisation of society and public offices was based on that ownership of land and, as men owned it, it was they who held the offices and the titles. In fact, married women were under severe disabilities in the ownership of land. It frequently vested in or was controlled by their husband up to a mere 125 years ago, when a series of married women's property Acts were passed emancipating it. The final act of freeing women from restrictions on ownership of land took place only in 1935, within the lifetime of most of your Lordships. That was the Law Reform (Married Women and Tortfeasors) Act. I often wonder what Freudian connection there may be between those two subjects.

The reasons for the inheritance of titles being almost invariably restricted to males were that women's counsel was not valued and women did not own land. Those reasons have long since disappeared. I shall not take up your Lordships' time by repeating the unanswerable reasons why women should no longer be discriminated against in any field of endeavour. Instead, I should like to use my remaining time to explain why my support for the Bill has to be qualified. I have already spoken to the noble Lord, Lord Diamond, about it.

The noble Lord introduced a similar Bill on 26th November 1992, just 15 months ago. The report of the debate in the Official Report shows that various objections were voiced by several noble Lords. While I agree with the principle that the Bill seeks to achieve, it seems to me that not all those objections— with which in many cases I agree— have yet been met in the present Bill.

First, the Bill deals only with peerages created by Letters Patent, ignoring the ancient peerages by writ. The noble Lord, Lord Diamond, seems to think that there are very few of the latter where the title cannot already pass through the female line. That may be so, but my information is that there may be a more significant number. I believe that the noble Lord, Lord Strabolgi, referred to that point in his speech. However, it does not matter even if there is only one. All peerages should be treated in the same way.

Secondly— to me this is a major objection— the Bill continues to disinherit some heirs who are at present in place. Even if the heirs themselves are too young to appreciate it, their fathers are not.

Thirdly, the machinery for altering the line of descent is far from clear. In fact, I am not very familiar with it and it seems somewhat ambiguous to me. I saw the noble Lord, Lord Diamond, on television on Friday and heard him say that his new Bill would make that automatic. If that is his objective, I certainly commend it. But I am not quite sure whether the Bill as presently drafted achieves that aim. The Bill states that: Her Majesty … may amend the letters patent creating any … peerage to permit that peerage … to descend". and so on. I am not a lawyer. I thought "may" did not mean "shall", though I take on board what the noble Lord, Lord Diamond, said about it being polite language. Certainly, I do not think that "any" peerage means "every" peerage; but "that peerage" means a particular selected one and not every one.

So in a sense we are back to the same questions as before. Is there to be a petition each time a title passes with an elder sister on the scene? Is there to be some inter vivos declaration by the former holder? Is he to deal with the matter by his will? Any of those alternatives will give rise to the possibility of disputes, to pressure from elder daughters or from sons liable to displacement, to allegations of undue influence and to casting doubts on the testamentary capacity of the former holder of the title. The opportunity to nominate his successor could bring about a curious situation in the case of those who hold two peerages. The holder could just nominate one for his eldest daughter, leaving the other as prescribed in the Letters Patent.

Furthermore, the Bill is still dependent upon Her Majesty's pleasure. How, when and on whose advice is that pleasure to be expressed? What if the Bill is passed and Her Majesty is never pleased to exercise the power given to her. Parliament would have wasted its time. In my view the only satisfactory solution to those problems would be if all peerages, without exception, were to be made to pass to the eldest child, subject, of course, to the preservation of the expectations of all present direct heirs.

It was suggested that passing the Bill and sending it to the other place might incite some of its Members to try to abolish your Lordships' House altogether. I believe my noble friend Lord Montgomery of Alamein alluded to that. That argument cannot be totally discounted. But it is also possible that reforming the right of female inheritance will remove one of the arguments some people use against the House.

An important function of this House is as the final Court of Appeal; the last resort of those seeking justice. Is it not right that it should also do justice to, I admit, a small number of citizens— the families of 774 hereditary Peers? If your Lordships were voluntarily to agree to abolish purely male succession at a time when we are still trying to abolish all kinds of discrimination, it would send out a powerful message from your Lordships' House.

I believe that the Bill raises a matter of principle too important to fail on a technical amendment, despite well-founded objections to the method of attaining its ends. I hope your Lordships will agree to give the Bill a Second Reading. There will be ample opportunity to reject it if it does not emerge from Committee in a far better form than when it went in.

8.12 p.m.

Lord Rea

My Lords, like the noble Lord, Lord Addington, had my noble friend's Bill been law when I inherited my title 12 years ago I should not be here now. The title would have passed to my cousin, Ann. Sadly she is no longer alive so the title would now have descended to her eldest son, my second cousin. I am fairly sure that he would not be sitting on this side of the House, despite my family's radical tradition.

Despite the fact that I would not be here and the Benches opposite might have had an additional Member, I fully support my noble friend's Bill on the grounds of justice, self-interest— of this House and the country as a whole— and, above all, on the grounds of logic. I differ from the noble Lord, Lord Addington, with regard to logic. I feel that true logic stands above partisan viewpoints. It is surely illogical for the male inheritance of titles to prevail in a country which has shown no sex discrimination in the rules of inheritance for the Head of State since Mary Tudor, who noble Lords will recollect was known as "Bloody Mary" because of the way in which she dealt with those who did not share her faith. She came to the throne in 1553. My noble friend mentioned a previous example of a female Head of State, Boadicea, though perhaps in AD 61 the rules of inheritance of titles were governed by a rather different law, if there was a law. I suggest that if one of the granddaughters of the noble Viscount, Lord Montgomery of Alamein, were to inherit the title of Alamein, Boadicea would be a worthy and suitable predecessor.

I am fully aware that peerage law is extremely complex, as the noble and learned Lord, Lord Jauncey of Tullichettle, and others pointed out. The noble Lord, Lord Hesketh, says that we in this House have sufficient expertise to discuss the matter in Committee if the Bill should receive a Second Reading. But I wonder whether we could offer the dispassionate advice that a Select Committee could give us. I am persuaded that that is a good reason for backing my noble friend's amendment to send the Bill to a Select Committee. I strongly support the Bill and if the House should give it a Second Reading I shall support my noble friend's amendment.

8.15 p.m.

Lord Lucas

My Lords, I too am grateful to the noble Lord, Lord Diamond, for introducing this Bill again and I hope that it will receive a Second Reading. I am also much encouraged by the support of the noble and learned Lord, Lord Simon of Glaisdale, for the proposal of the noble Lord, Lord Strabolgi, that the matter be referred to a Select Committee. I feel that the many points and problems of detail raised this evening would best be dealt with in that closed group before they are exposed to the whole of your Lordships' House and take up a lot of our time.

I do not wish to talk about the detail, just about the principle. It seems to me that there are three questions we must ask before giving the Bill a Second Reading. First, should we be looking at the question at all? Secondly, is it a good change for the House? Thirdly, is it a good change for the hereditary peerage?

With regard to whether or not we should be looking at the question at all, the answer is yes. It is important that this House continues to change. Its strength and flexibility come from the changes made in the past. Over 20 years ago your Lordships' House recognised the need for change and was thwarted by another place. There are limitations on what we can propose but we should do our best within those limitations. If we refuse or neglect to change, then change will come suddenly and catastrophically and we shall not recognise this House after it. I do not believe that the Bill in any way infringes the rights of another place. But if it causes them to take an interest in reforming this House I, for one, shall be grateful. I would far rather see this House reformed by the present Government than by one of another colour later.

Secondly, is it a good change for this House? The answer is resoundingly and obviously yes. Its result would be to produce more women Peers and that, given the track record of that species to date, can only be good.

Thirdly, is it good for the hereditary peerage'? I also answer yes to that question. The hereditary peerage is a cultural and not a genetic heredity. When we talk of hereditary peerages one automatically thinks of genetics and inheriting the abilities and make-up of our parents. But only half of my genes come from my father and that process, that diminution, carries on back through generations. In fact, if we look down the male line 20 generations— which is well within the compass of many of your Lordships— there stands a man whom we would regard as an ancestor and who may be one of the founding fathers of the family, but the chances are that not one single gene in one's body has come down the male line from that man. Anyone who has read Matt Ridley's book The Red Queen, will know that to be an established fact. They will know that there is no genetic meaning to the concept of the male line.

The concept of the male line is a cultural one; it is the inheritance of power, of honour, of possessions. And in a male-dominated world, in which many of the hereditary peerages were created, male succession was right. But now that is changing. It has not changed completely but it is changing and I hope that it will change permanently to a situation where women rank equally with men. If we want the hereditary peerage to retain the value and respect which it now holds, and if we want it to be something which the society of the future can look upon with honour, then we need the values of that society to be matched by the values which go with the symbol of a hereditary peerage.

My peerage is one which can descend through the female line. It was given to a woman in respect of the achievements of a man. I inherited it from my mother; she inherited it from her mother. I do not believe that anything that has happened in the course of my heredity, looking back at my family, detracts from its history and the sense of family, even though it has dodged between the male and the female line with great regularity. So on all counts I believe that we should take this Bill forward, give it a Second Reading and discuss how and to what extent it might be put into action.

8.20 p.m.

Lord Dacre of Glanton

My Lords, when I read the admirably brief Bill of the noble Lord, Lord Diamond, I asked myself what was the central thrust and purpose of it. Is it to rationalise the British peerage? That is impossible. It is an irrational structure and, as Oscar Wilde said, the best thing the British have done in fiction. In that it reflects our constitution in general, and it is none the worse for that. I am not criticising it for being irrational. It has its own internal rationality, I suppose, which is entirely esoteric to itself and has no parallel. But it has shown greater strength than some of the constitutions of cartesian rationality which have been devised by our neighbours in Europe. But still, I cannot believe that the noble Lord has so impossible an ambition as to attempt to rationalise the British peerage.

Is it then to admit more women Peers to this House? But for that it is unnecessary. We have a mechanism whereby women Peers can be created ad limitum and brought in not haphazardly by accidents of an unreal genetic descent but rationally and on merit. There is no obstruction to the ambition to bring more women Peers into the House. Equally, patents in future could be altered in order to make the peerage descend to the heirs general instead of, as has been customary in patent peerages hitherto, to heirs male.

Is it then to save ancient peerages from extinction? Listening to some noble Lords, that seems to be an argument used. That, I feel, is like tae Cavalier philosophy: romantic but wrong. But I shall come back to that. Whatever the purpose, I think that the Bill can be described as at the same time radical, reactionary and romantic. It is radical in the methods which will be necessary to carry it out. The noble Lord, Lord Addington, cited as a precedent the execution of Charles I. I do not know that we would particularly wish to follow that precedent. But certainly it is a radical measure and some noble Lords have touched on that.

How is it to be done? Are all the peerages by patent issued since the 14th century to be called in and new ones prepared? I do not know: perhaps we will be told. The noble and learned Lord, Lord Jauncey, made an interesting point. I do not know whether patents of former kings can be valid by later legislation. He cited an instance in Scottish peerage law— the second creation of the Dukedom of Fife because it was impossible to adjust the previous patent in order to provide for a variation of inheritance. He said that he did not know whether that happened in English peerage law.

Lord Jauncey of Tultichettle

My Lords, it was a United Kingdom patent in the 19th century.

Lord Dacre of Glanton

My Lords, there is another instance in English history that comes to my mind which points the same way. In the 18th century the famous Duke of Newcastle had no male heirs. His dukedom was by Letters Patent and restricted to male heirs of the body. He wished to be succeeded by his nephew, the Earl of Lincoln, but he could not change the patent. For all the influence which he exercised at the court of George II he could not do it. Therefore he contrived a very ingenious method. His dukedom was the dukedom of Newcastle-upon-Tyne. He persuaded the King to create him Duke of Newcastle-under-Lyme with a special remainder. So the dukedom of Newcastle-upon-Tyne became extinct with him but the dukedom of Newcastle-under-Lyme passed to his nephew — and it appears, as one always leaves out the "Tyne" and the "Lyme", to be a continuous inherited dukedom.

The argument is the same as the argument offered by the noble and learned Lord, Lord Jauncey. This is a legal matter on which I would not give my own opinion but it seems to show that a patent of a former monarch is not variable. Therefore, all the patents would have to be called in and new patents issued. They would be new creations. One can imagine what practical difficulties that would cause. The Bill is radical in that sense because the noble Lord, Lord Diamond, wishes with one half-page of print to sweep away all the writs and patents issued in the past seven centuries by 30 kings. That seems to be quite a radical gesture.

I say it is reactionary in another sense; that is, as again has been suggested by some noble Lords, it will positively extend and strengthen the hereditary system. I have nothing against the hereditary system but some people do. Our eager reformers are anxious to do away with hereditary legislators. We can see that in the past history of this House. In the history of this House one can detect a continuous but muted dialogue between governments seeking to contain the hereditary element and social pressure aided by the ingenuity of well fed peerage lawyers seeking to extend it.

We see the extension particularly in the 1830s and 1840s when the new usage of abeyance was introduced into peerage cases. Suddenly antique peerages thought to be extinct for 400 or 500 years broke from underground like fountains— a stream of them— and took precedence over all the peerages by patent. That great explosion of hereditary Peers started in about the 1830s and the fountain was still playing freely when parliamentary time, one would have thought, would have been pre-empted by the burden of the First World War.

Therefore, in that sense I believe that the measure is reactionary. It is tending to strengthen the hereditary element which recent policy has tended to seek to attenuate because it cannot escape everyone's notice that in the past 30 years practically no new hereditary peerages have been created, I believe with one exception; namely, for persons who under the present system would be the only holders so that they are in effect no different from life peerages.

So we must face the fact that this measure, which would give greater survival capacity to hereditary peerages, is in that sense a step back. It is a move back towards the 1830s. Another episode was the government's attempt to redress the balance in this House by creating life peerages in, I believe,1856. That was vetoed by this Chamber after, we are told, a brilliant speech by Lord Lyndhurst, who was 87 years of age and blind but who by his eloquence carried the day. After that Bagehot wrote that two things were necessary to reform the House of Lords: one was to abolish proxies, which would make it a real House, and the other was to introduce life Peers, which would make it a good House.

Proxies have been abolished and life Peers introduced. I mention that as an illustration of the continuing dialogue between the Crown attempting to control hereditary peerages and the social pressure which has pressed for their extension. The Bill of the noble Lord, Lord Diamond, is supporting what I call — absolutely neutrally and I am not moralising at all — a reactionary measure.

As regards the romantic aspect, I believe that, despite the eloquence of my noble friend Lord Mowbray, most of us would agree that mere titles are, as the Earl said to Mr. Salteena, in The Young Visiters, "piffle before the wind". It is really agreeable piffle and it is the stuff of romance. But I do not really believe that merely preserving ancient peerages because of romantic attachment to them is going to carry us very far.

What then is the ultimate, central purpose of the Bill presented by the noble Lord, Lord Diamond? It is not against discrimination because there is none. Women Peers can be brought in at any time. It smells to me a little of — what is the phrase?— "political correctitude". It is not going to make a real difference. It is not going to make an enormous difference in the actual practicalities of carrying it through. There will not be a great difference in fact, or at least there need not be.

Therefore, I am going to support the amendment of my noble friend Lord Shrewsbury. This Bill is rather like the operation of burning down the house in order to have roast pig, or, alternatively, if I may, change the metaphor, as if to burrow through antique architectural rubble in order to create a difficult sideway into a house of which the front door is wide open.

8.35 p.m.

The Earl of Strafford

My Lords, I wholeheartedly support the aims of the noble Lord, Lord Diamond, but his enthusiasm for his cause is moving too fast. If he had proposed that the normal destination for peerages should be to heirs general, as is the case for the monarchy, he would have received considerable support; even more so, if he had allowed an opt-out for those Peers who preferred the status quo. A number of Peers accept that the peerage law should be modernised. But I believe that there should be an evolutionary process and not a quantum jump, as the noble Lord, Lord Diamond, proposes. The move to heirs general would be progressive, would increase the number of women peers, would keep a few titles and estates together and could be acceptable to the House.

The amendment of the noble Lord, the Earl of Shrewsbury, although produced for positive reasons, has a very negative ring to it. It suggests that as a House we are incapable of considering any change whatsoever. However, the Motion of the noble Lord, Lord Strabolgi, is positive. I believe that he is proposing a sensible way forward. A Select Committee would give us the facts and advise us as to what changes were feasible. So I shall be supporting the noble Lord, Lord Diamond, in anticipation, perhaps optimistically, of being able to support the noble Lord, Lord Strabolgi.

8.37 p.m.

Lord Sudeley

My Lords, we do not know how far back we can take the history of the House. I believe it is further than the 13th century with the adventitious circumstances that Writs of Summons to attend the House have survived. I believe that Enoch Powell was quite right in his book, The House of Lords in the Middle Ages, to take the history of the House back to the Saxon witan.

My family began well before surnames. We are ultimately descended from Charlemagne, who in his turn was descended from Arnulf, Bishop of Metz, who died in 672. So if I have an interest to declare, it is that, from the time we reached England in the reign of Edward the Confessor, our earliest titles were not hereditary. We are descended from Edward the Confessor's nephew Ralph, Earl of Hereford. His earldom was not hereditary; it merely meant that he was the king's chief man in the county in the way that the sheriff later became. He was also commander of the fleet at the time of Godwin's exile when all the crews absconded. That is why Godwin was able to return. Again, at the end of the 13th century, we were summoned to attend the House of Lords. It is clear from Enoch Powell's book, The House of Lords in the Middle Ages, that to be summoned then to attend this House did not convey a hereditary peerage.

The Bill is to be criticised on two broad counts. The first is mischief in loosening the strength of the hereditary principle in the form which was well adumbrated by the noble Earl, Lord Shrewsbury, and into which English society has hardened during the course of the Middle Ages. Our early kings did not succeed by any good, hereditary title, which created difficulties of disputed succession, the most notable being the civil war between Stephen and Matilda. The period in which our kings first succeeded each other by a good, hereditary title has to be marked by the minority of Henry III. Equally, this House was not hereditary until the end of the 14th century, when it became so for reasons of administrative convenience.

The arguments are very old about the conflict between the elective principle of government and the hereditary principle, which has lasted for far longer since the fall of the Roman Empire.

The best arguments in favour of the hereditary principle belong to the 18th century, with its belief in a mixed constitution, derived from Aristotle and from Joseph de Maistre, who demolished the nonsense of the French Revolution. It is unfortunate in this respect that most of our history books have been written by Whigs, absorbed with the increasing ascendency of the House of Commons, when this House has an important history in its own right which has been seriously overlooked.

Still, let me remark quickly that we need to consider the importance of this House, with its male hereditary composition, since the end of the 14th century. In the 15th century, when the Crown was weak and the Commons had not achieved its later ascendency, this House was the principal element in the constitution. Again in the 18th century it was very powerful. It did not exist by itself, but had a large element of control over the other place since noble Lords owned so many rotten boroughs. The Duke of Wellington opposed the Great Reform Bill of 1832, which abolished rotten boroughs. We have to ask, who did the Great Reform Bill enfranchise except the wealthy manufacturing interests who created the misery of the industrial revolution? It was left to Disraeli, the Tory Prime Minister, to widen the franchise with the second Great Reform Bill in 1867. In the last century, the Tory Party was always at the forefront in the amelioration of the condition of the people.

It is possible to cite instances of how this House has been more honourable than the other place. We have to think of the trial of Strafford. The other place had to resort to the mediaeval Bill of Attainder because, very properly, this House would not allow the other place to get away with an impeachment. This House insisted on judicial fair play.

The second broad count on which we must criticise the Bill is on the separation of the peerage from the estate which supports it. Much has been said about equal rights for women. The role of women in the past was different but clearly complementary. The role of women was the obvious one of marriage. In his English Genealogy, our Clarenceux King of Arms, Sir Anthony Wagner tells us that it is through marriage to heiresses that the great families of this House were built up. In various instances, the heiresses belonged to new families which wished to enter the aristocracy. If the old families had blocked that, as happened on the Continent, it could have precipitated a revolution.

The idea that property creates no obligation is a modern and liberal one in contrast to the old thinking according to which the great families and their primogeniture had, and still have, a purpose— that their property creates obligations. In that respect, a seat in Parliament is very appropriate. Our hereditary aristocracy is landed and the understanding that land carries obligations is especially important today when for more than a century land has hardly paid for itself. I speak here not exclusively as a reactionary, but would seek the sympathy of noble Lords opposite since in this century the Conservative Party has been affected by liberal thinking on economics. On matters of the environment, the party opposite can be more satisfactory than my own.

Here, in parenthesis, perhaps I may plead with noble Lords opposite the appropriate reason for which this House rejected the 1909 Budget of Lloyd-George which led to the 1911 Parliament Act by which this House was shorn of so many of its valuable powers. Since the agricultural depression set in in 1879, land has needed protection. Joseph Chamberlain started off as a radical, just as rude about the aristocracy as Gilbert and Sullivan, but then underwent a very satisfactory political conversion and by 1903 advocated protection for agriculture. The Welsh attorney, Lloyd-George, with his Budget of 1909, went the other way and attacked land when Joseph Chamberlain recommended that a much better means of raising money was by expanding the imperial economy through imperial preference.

To turn in conclusion to the present, we must be mindful of the contributions to land by Peers who have inherited in the male line and kept their estates. I shall give three instances. I refer to the magnificent contributions to debates in this House on forestry, especially by Scottish noble Lords. Secondly, I can cite instances of the refusal of noble families to sell their land for development; thirdly, I refer to the problem, which is more acute in the South than in the North, of who our villages are for— are they for weekending stockbrokers or for those who work on the land? Where some houses are sold to weekend visitors, the village is destroyed as a cohesive social unit.

For the reasons given, I do not believe that the noble Lord, Lord Diamond, has thought out the implications of his Bill in sufficient depth. I oppose it.

8.44 p.m.

Lord Acton

My Lords, I listened with great care to the speech of the noble Lord, Lord Diamond, but I must confess that I am still not clear on the thinking behind Clause 2 (b). Could the noble Lord say a little more about that clause and, particularly, why the period that he nominated was 10 years?

8.45 p.m.

Lord Williams of Mostyn

My Lords, when my late father died 30 years ago, he did not donate a peerage to me. I share that distinction with the noble and learned Lord the Lord Chancellor on my right and my noble friends Lord Graham of Edmonton and Lord Dean of Beswick who are always to my left. He did leave me, however, a memory of his being a lay preacher in North Wales in the Church of Wales. He always remarked on the pleasure of a large and attentive congregation. He would say cynulleidfa go dda. In North Wales the audience here this evening would count as a large and attentive congregation.

Our approach is quite different from those of your Lordships who have spoken so far. We believe that the Bill is a worthy attempt but that it simply tinkers with an undoubted problem. It does nothing to tackle the fundamental question on which noble Lords who spoke earlier touched— has the hereditary principle any acceptable place in a legislative assembly in 1994? Our answer, which will come as no surprise, is plain, clear, and unambiguous: no.

Nothing, of course, that I say is meant by way of personal criticism of any hereditary Peer. Some of my best friends are hereditary Peers. All without fail or failing have treated me with infinite courtesy.

When one has listened to the speeches this evening or listened, as I did, with enormously innocent pleasure on 26th November 1992, one realises that hereditary Peers are a mixed bunch. They have mottled backgrounds. Some are the descendants of those who simply purchased their ennoblement from the late and revered Lloyd-George. Some are the inheritors of party placemen throughout the centuries. Some are the ultimate legatees, as we heard on the last occasion from the interesting speech of the noble Duke, the Duke of Norfolk, of those whose ancestors were attainted or decapitated. Some, a fairly small percentage these days, are the favoured relicts of the illegal immigrants who came to this country at the time of the Norman Conquest.

Great antiquity I s not a characteristic which attaches to most hereditary peerages: 620 were created following the great Reform Act in 1832, of which no fewer than 500 hereditary peerages have been created since 1918. In that context, those of us who inhabited parts of these islands long before the most ancient of hereditary peerages approach your Lordships worries on the other side of the argument with a good deal of sympathy.

One problem that concerns me is the precise mechanism that the noble Lord, Lord Diamond, intended in Clause 2. It seemed to me on a superficial reading that that might be a defect in the Bill. However, after the noble Lord's explanation and in particular, if I may say so in his present absence, after the explanation of the noble and learned Lord, Lord Simon of Glaisdale, it is perfectly plain, at least for present purposes, that what is suggested is an automatic mechanism, not a discretionary mechanism. Assuming the improvement that would come from commitment to a Select Committee— and I support the Motion of the noble Lord, Lord Strabolgi, to that effect— the principle, limited though it is, is welcome.

The blunt truth, as the noble Baroness, Lady Miller of Hendon, said, is that women have always been the object of discrimination and unfairness. They still are — and they still are in this House. One hundred and twelve years ago —but a day, I know, in the recollection of some— the Married Women's Property Act was passed. It allowed married women, for the first time, to approach equality in holding their own property. Many thought that it would be the end of civilisation as they then understood it to be. There were many devious, curious, subtle arguments used against that revolutionary step— an argument similar to that which has been presented this evening. None of the arguments then held water, and the bucket still has a big hole in it this evening.

In the end, the advantage to us of the Bill, modest though it is, is that it would provide at least a modicum of equal treatment: nor women, which is long overdue. In the House there are few women life Peers; there are few hereditary women Peers; there are no female bishops; no female Chief Rabbi is likely to sit with us; there are few High Court judges who are women; there is one in the Court of Appeal; and it will amaze no one to know that the number of women sitting in the Judicial Committee of the House of Lords is nought, as it always has been from time immemorial. I think of that sometimes when I am directed to the attractions of history and tradition. There are few women ambassadors; no chiefs of staff; and only two women in the Cabinet.

What we therefore support here briefly— because our dispositions are respectively laid out clearly— is the opportunity for fairer treatment for women. Our suggestion and belief is that women are treated unfairly; and that that unfairness is endemic throughout out society. There are only two possible explanations why women do not succeed: one, they are just not up to it; and, two, they are never given a fair opportunity. In my opinion, it is the second.

The arguments that we have heard tonight have been attractive. I am sorry that the noble Lord, Lord Mowbray and Stourton, is not here. He confined his contribution this evening for reasons that he mentioned. His contribution on the previous occasion, and I say this without any frivolity, I found deeply interesting and moving. But it is moving and interesting, as has earlier been said, on a cultural, traditional, historical basis in the same way that anyone's family history is of particular interest to that family; and families, of course, have interest whether they are great and ennobled or modest and obscure. The great and the noble have no finer traditions in the memory of families than those who are modest and never heard of.

The arguments this evening, therefore, have all the seductiveness of history and tradition to which I am afraid I readily apply myself; but the arguments, though they have all the sinuous charm one would expect from your Lordships, if one steps back for a moment, would have raised an eyebrow or two even in renaissance Italy. Charm, however seductive, will not do to mask injustice of the sort that has been described by the noble Lord, Lord Diamond, and for those reasons our attitude is simple and plain. We recognise the depth of feeling that has been expressed by noble Lords. I recognise the sense of tradition that the noble Lord, Lord Hesketh, described. He did not speak on the previous occasion for obvious reasons. But at the end of the day we say that justice means more than old traditions. Tradition has its place and value, but not to overturn fairness, and therefore we shall support the Bill and, in particular, the Motion put forward by the noble Lord, Lord Strabolgi.

8.54 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I am sure that I speak for all of your Lordships — many of your Lordships have said this — when I thank the noble Lord, Lord Diamond, for giving us another opportunity to consider this topic. I have a particular reason for being grateful to him in that in his reference to his approaching middle age I feel established as yet some considerable distance short of it. The Bill is intended to make provision for Her Majesty to have the power, if it pleases her, to amend the Letters Patent creating any hereditary peerage so that that peerage may descend to the Peer's eldest legitimate heir— I am not quoting the exact words of the Bill— something which my noble and learned friend Lord Simon of Glaisdale has previously described as "unisex primogeniture". It differs notably from the previous Bill on this topic which the noble Lord, Lord Diamond, introduced during the previous Session. I shall return briefly to that point in a moment.

I am sure that all of your Lordships support the principle that the part that women have had to play in this House has been a considerable one. The noble Lord, Lord Diamond, has drawn attention to the fact that they continue to outperform their male counterparts in terms, for example, of attendance per head. That is a crude measure of value, but it is at least a measure. It is not always easy to secure a good measure of value, so I put forward that one for your Lordships' consideration. I am sure that all of your Lordships would wish to support the principle of equal opportunities as between the sexes. I believe that the Government's record continues to demonstrate that commitment, and I should like to highlight two aspects upon which I have spoken before in relation to this subject.

The first is the continuing progress of the Prime Minister's initiative to increase the proportion of public appointments held by women and members of the ethnic minorities. When I mentioned that previously I was able to say that the proportion of public appointments held by women had increased from 23 per cent. at the start of the initiative in 1991 to 26 per cent. by September 1992. It has now moved forward to 28 per cent. towards the end of 1993. That is progress in the right direction. It still has some distance to go, and, as the noble Lord, Lord Williams of Mostyn, said, it still has to reach the Judicial Committee of the House of Lords, but that takes a little time.

The other and wider aspect is the Government's support for the aims of the Opportunity 2000 campaign, directed at increasing the quality and quantity of women's participation at work nationwide. Government departments have as part of that campaign been examining their own areas of responsibility and producing action plans for improving the position of women in those various fields. I am happy to say that the Lord Chancellor's Department has not been lagging behind in that, from taking action as an employer, such as encouraging part-time working and job sharing and supporting and developing staff childcaŕ e schemes together with partners such as British Rail, to taking action in my wider fields of responsibility, for example, in relation to judicial appointments.

I referred at the outset to the work of the noble Lord, Lord Diamond, in amending the Bill to meet earlier criticisms. That work has produced a Bill which is different in a number of respects from the previous one. I should like to compliment him on the concern with which he has approached that task.

From the presentation of the Bill given by the noble Lord, he intends that the first clause should not give a power in the ordinary sense to Her Majesty, to amend the Letters Patent but to effect that change automatically. My noble and learned friend Lord Jauncey questioned whether that was the effect of the clause. I am prepared to take it that the Bill will have the effect for which the noble Lord, Lord Diamond, asks, or if on an analysis of the words used that is not its effect, then it can be readily changed to have that effect. The advice that I have been given is that the clause that he has used is probably adequate for his purpose. If there is any question about that no doubt it can be resolved.

The fundamental question that must be addressed is how far this change is intended to go. My noble friend Lord Hesketh pointed out plainly that one could develop the principle for new Letters Patent, making new Letters Patent indifferent as regards gender. That would be comparatively easy. However, the principle of the Bill goes much wider. The principle of the Bill is affecting existing Letters Patent, and Letters Patent that have been granted over a long period.

In opening the debate, the noble Lord, Lord Diamond, guarded himself against the argument that the Bill is retrospective in that sense. Of course, it is retrospective in the sense that it affects deeds and the terms of deeds granted a long time ago. The noble Lord, Lord Diamond, referred to the effect of finance Bills and finance Acts; that is, to the change in taxation. But there is a big difference between the kind of change which a change in the taxation system affects and the kind of change that is in question in this Bill. Once a tax is brought in it applies to an existing state of facts and changes that may take place thereafter. One must examine the existing state of facts to see whether the taxing provisions apply, and if so with what result. One might find that certain types of enterprise are affected by a new tax but certain types are not.

This provision is different in principle from that in this way; that the change which the Bill makes to Letters Patent will depend on what is already in the Letters Patent. That is seen by the two provisions (a) and (b) of Clause 1, which cater for different things which may be in the existing Letters Patent. The difficulty which the Bill faces is that the provision is to be automatic and therefore must give a substituted devolution of the peerage for the one in the existing patent. If it is to work it must give a new devolution for every possible type of patent.

My noble and learned friend Lord Jauncey, with his considerable experience of these matters— it relates in particular to Scotland but the principle is the same— indicated that he has been unable to devise a scheme which will satisfactorily apply to all the different types of situation which one might encounter on the death of a holder of a peerage in the various existing Letters Patent. Unless that were possible this Bill could not work. That is the first problem which a Bill on this general principle faces. Therefore, it is a matter for consideration as a matter of principle.

The second main problem which a Bill of this kind faces is how to deal with people already entitled under existing Letters Patent to legitimate expectations of success to a peerage. That is dealt with in Clause 2. As has been pointed out, two different situations are dealt with. The first relates to an existing child and the age of 18 has been selected. If a person is younger than 18 his legitimate expectations are, in effect, to be disregarded. If he is older than 18 all well and good; he will be entitled to succeed under the old system. But not every existing person with legitimate expectations is in that category. One therefore turns to Clause 2(b). As has been pointed out, that subsection mentions 10 years as the correct method of dealing with the situation. I have no doubt that the noble Lord, Lord Diamond, will answer the questions posed about the 10-year period in relation to the age: of 18, and so forth.

These are all matters of anxiety and no doubt they can be adjusted. However, the point of principle is that if one is going to interfere automatically with existing Letters Patent one must provide some method of dealing with those having legitimate expectations. So far as I can see, those are the matters of principle which arise for resolution under the Bill.

The Government are neutral in respect of the Bill. As far as they are concerned, it is for your Lordships to decide between tae Motion of the noble Lord, Lord Diamond, on the one hand and the amendment of my noble friend Lori Shrewsbury on the other. If the Motion of the noble Lord, Lord Diamond, is carried, we shall come to the Motion of the noble Lord, Lord Strabolgi. I understand that if, under the Motion tabled by the noble Lord, Lord Strabolgi, the Bill is remitted to a Select Committee the result is that it is the Bill that will he considered; in other words, it will not open to the Select Committee a completely wide-ranging remit about anything to do with the reform of the House of Lords, or even that drastic type of reform which leads to abolition. The Select Committee's remit would be the same in principle as the remit to the Committee of the whole House, except that the method by which that remit is pursued would be different. Therefore, the sort of subjects which the noble Lord, Lord Strabolgi, indicated in his support for the Motion would be the kind of matters a: which the Select Committee would require to direct its attention—

Lord Strabolgi

My Lords, I hesitate to interrupt the noble and learned Lord, but surely that would be a matter for the Motion appointing the Select Committee. I have in mind a Select Committee with very wide powers of remit to consider all the matters about which the noble and learned Lord is talking.

The Lord Chancellor

My Lords, that would depend upon the situation The Motion before the House tonight is one to commit the Bill to a Select Committee. As I take it, that would be the terms of reference of the committee. No doubt your Lordships could appoint a Select Committee to do something else and with a wider remit if your Lordships felt so inclined. However, so far as concerns tonight's Motion— and that is the matter to which I am addressing myself— I believe that its remit is not altered but that it is in accordance with the Motion and thus would be along the lines that I have sought to describe.

In considering the latter, your Lordships have to bear in mind the various issues that have been raised. However, your Lordships may also wish to consider how much relative importance should be attached to the matter as against other matters upon which a Select Committee might be established. As noble Lords know only too well, the resources of this House for servicing Select Committees are not infinite. Therefore, a certain degree of judgment on priority is required before your Lordships decide to set up a Select Committee. I believe it is only fair to draw attention to the fact that, if the Motion were to be acceded to, it would create a call on those resources which might be in competition with other objects for which your Lordships might think a Select Committee is required. The Government have no firm view on the matter. So far as we are concerned we are leaving it to a free vote of your Lordships' House.

Those are the matters which seem to me to be the principal matters for consideration. We have had a most interesting and wide-ranging debate which has covered all sorts of aspects on the subject. So far as I am concerned, I believe it would not be right for me to try to summarise them. I leave it on the basis that the principal concerns that your Lordships have to address in deciding such matters are the ones that I mentioned.

Lord Elton

My Lords, before my noble and learned friend sits down perhaps I may ask a question. While my noble and learned friend is describing procedural matters, can he tell the House whether it would be within precedent and possible to refuse the. Bill a Third Reading after a Select Committee had returned it in a revised form?

The Lord Chancellor

My Lords, my understanding of the situation is that it would certainly be possible to do so. Each of the stages in the passage of a Bill are debatable and your Lordships can vote upon them. Therefore, it would certainly be possible to reject a Bill on Third Reading that had gone through a Select Committee and then returned to the House for its final stage. No doubt your Lordships would wish to express a view on whether it was likely that that would happen. I am sure that noble Lords would not be particularly anxious to devote the sort of resources required for a Select Committee unless they thought that there was some reasonable prospect that the Select Committee's work would not be in vain. In other words, it is not just putting such a decision even further off.

A certain decision is now required on the practicality in principle of what is proposed in the Bill. I believe that that is implicit in the logic of what we are doing tonight. The first question is whether the Bill should be given a Second Reading. Only then does the question arise as to whether it should be committed to a Select Committee. Therefore, by giving the Bill a Second Reading, your Lordships would be approving the Bill in principle, subject to amendments which might come out of the Committee stage. It is then left open, of course, to reject the Bill on Third Reading if your Lordships felt so inclined. I believe that I have covered the main issues. Of course, I have not addressed all the issues which were raised, but I have sought to summarise what appeared to me to be the principal ones.

9.13 p.m.

Lord Diamond

My Lords, the last thing that I want to do is to detain your Lordships for any length of time at this hour. However, I hope that I may genuinely say how grateful I am to all those who listened to the debate. There has been an unusually large attendance in the House for a Private Member's Bill. I am very conscious of the honour that has been given to me with so many noble Lords spending their time listening to the debate. I am especially grateful to the noble and learned Lord the Lord Chancellor who sat through the whole debate and who has, once more, given us the benefit of his views.

I should like to answer a few of the specific points raised. The question was asked as to whether the option, which was an unwanted element in my earlier Bill, has gone. I did not do the drafting, but I am grateful to those in this House who did. As I said in my opening remarks, I am assured that that is precisely so. The wording of the Bill,"if it please Her Majesty she may amend the letters patent", is capable of being understood literally. I said in my opening comments that that was the normal and polite form of saying that Her Majesty will be graciously pleased to amend. If I may put it less courteously, but perhaps more clearly, it is not for us to tell Her Majesty what to do. We never use terms such as "Her Majesty shall". The words used here are well understood and mean precisely what I said earlier, and what the noble and learned Lord the Lord Chancellor indicated was correct, namely, that the option has gone completely. As the Bill says, on the death of the holder at the passing of this measure the Letters Patent will be amended to make provision for women to succeed equally with men.

I deal with the question of a Select Committee. I am bound to say that in the first place I approach this rather like the male spider who is several times smaller than the female of the species. He approaches tentatively, knowing that the female has quite an appetite for suitors but not knowing whether or not at the end of the proceedings he will be the bridegroom or breakfast. What has been said tonight has completely clarified my mind. I am particularly grateful to the noble Lord, Lord Strabolgi, for his contribution and to the noble and learned Lord, Lord Simon of Glaisdale, for explaining the matter with such clarity. I am sure that the Bill will benefit from being examined impartially in the technical way, and with the benefit of witnesses, that the Select Committee procedure envisages. It will not be possible to roam over the total area of reform of the House of Lords, as some noble Lords fear. The process will be restricted in the way the Motion describes. Moreover, the Bill will come back before a Committee of the whole House with a clear written report that will enable us to study in black and white the view of the Select Committee and the reason why it has arrived at it. I believe that there is a great deal to be said for it.

The only other point that arises is whether there should be a Second Reading. The noble Earl, Lord Shrewsbury, said twice on the previous occasion— and repeated tonight— that he had no difficulty with the principle of equality of the sexes in inheriting titles. To use his phrase, he would be quite relaxed if his peerage went to a daughter or son. That is the only principle involved in the Bill. The rest is detail. People may want to have a period of 10 years or other lengths of time. I have been approached by a number of Peers who put opposite points of view. That is fine. Let us get together, argue it out in Committee and decide what is the wish of your Lordships.

In Clause 1 I have tried to meet precisely the objections that your Lordships were good enough to voice on a previous occasion. The same remarks now apply to Clause 2. If people want 10 years, a shorter period, or a longer period, well and good. I cannot satisfy all noble Lords who have spoken to me because they want different things.

Therefore, let us have a Committee stage and be strengthened in those proceedings by any comments that the Select Committee may wish to put before us. The same remarks apply to the age of 18. That was the obvious first choice. The complaint made about it is that it is not 16. It was, I believe, the noble Earl who said that he was anxious about his son who was only 16. It is not worth falling out with the noble Earl over two years. Let us try to meet the differing views of different Peers and emerge with an agreed conclusion.

I am bound to say that I do not understand why those kinds of argument are made against a Second Reading. We all know what a Second Reading in this House means: it only means that one agrees with the principles of a Bill. The noble Baroness, Lady Miller of Hendon, made an immensely important point when she referred to the kind of message that would go out from this House if we did not even give the Bill a Second Reading. The message would go out that the House of Lords is so imbued with its previous thoughts of past centuries that it is not prepared to come up to date and even discuss the principles under which women might have the same kind of opportunity as men in this matter. That would be entirely the wrong message and I appeal to your Lordships not to send it out.

9.21 p.m.

The Earl of Shrewsbury

My Lords, we have had, thanks to the noble Lord, Lord Diamond, a fascinating debate and I am sure that everyone in your Lordships' House is most grateful to him for bringing forward his Bill. Certainly it has been a debate where many new things have been learnt by many people. He is indeed a persuasive and eloquent speaker, even if he did slightly change round the things I said to suit his argument. But then, that is what life is all about.

I have several problems this evening with this Bill. First, I do not particularly like being labelled the hatchet man because the situation is not quite like that. Even worse, I do not particularly like being labelled— as will no doubt happen— a campaigner against women's rights. I can assure your Lordships that nothing could be further from my mind.

I am extremely proud of the way in which we have conducted this excellent debate this evening. I am proud of the way in which we in this House always conduct ourselves. I am also proud of the great history and traditions of this country which are part and parcel of this noble House, and of its great families, many of whom sit in this House. My arguments are not about history and traditions but about inequality. I would dearly like to see a system in place whereby a title could be handed to a female heir if no other male heirs were in evidence, mainly to ensure the continuance of those titles held by ancient families. I have, of course, a vested interest in that.

If a Bill is brought before this House which addresses this problem and finds a solution to my earlier points about Act of Parliament and other entail male trusts— I think that would be difficult, especially with Act of Parliament trusts— and if it addresses the problem of the future status of peers of Ireland and the inheritance of those titles, and if it satisfies my desire to protect the rights of the already born but nevertheless under-age heir, and if, in my opinion, such a Bill is fair to all parties, it will have my wholehearted support. But tonight that is not the case.

The subject being debated is extremely complex and, especially because of the trust questions, it would be essential to consult legal opinions. There simply is not the time available to attempt to amend the Bill sufficiently to make it workable. In my opinion, the matter is so full of complexities, and the questions are so diverse, that the Bill is incapable of adequate and fair amendment. Surely it is better to ask the noble Lord, Lord Diamond, to think again, to address further the complexities of the matter and perhaps then to bring another Bill before this House which provides a much greater level of comfort to those whose families will be affected. We are, of course, talking about families, people and children. It may well be that at that stage the noble Lord will find some certain support from those who share my concerns. Perhaps then we shall feel able to put forward constructive, decent amendments to progress what is really a complete reform of the peerage as we know it.

I would welcome such a Bill, though I reserve the right, of course, to look carefully at it, as would all noble Lords. However, it would show that I am serious about this matter, in that I wish to be completely fair to all parties. This is where my objection lies. Of course there is a cause for change but only with great thought and essential care. In conclusion, I wish to extend my gratitude to those noble Lords who have supported my argument. I must test the feeling of the House on this matter and press my amendment.

9.24 p.m.

The Lord Chancellor

My Lords, the original Question was that this Bill be now read a second time, since when an amendment has been moved to leave out "now" and at end to insert "this day six months".

On Question, Whether the amendment shall be agreed to.

Their Lordships divided: Contents,74; Not-Pnntpnte 3Q

Resolved in the affirmative, and amendment agreed to accordingly.

House adjourned at twenty-seven minutes before ten o'clock.