HL Deb 14 January 2005 vol 668 cc495-515

12.42 p.m.

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Succession to the Crown Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Lord Dubs

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

There is a view that Parliament should hesitate before legislating on the monarchy. Indeed, there is almost a taboo on royal reform—a taboo which I hope that we can dispel today. This is a breathtakingly modest Bill. People have said that it is radical to introduce a Bill concerning the monarchy, but it is so breathtakingly modest and moderate that I do not believe that anyone can oppose its contents.

At the outset, I thank the staff in the Public Bill Office, who have been enormously helpful to me in drafting the Bill and getting it right. That was technically quite a difficult thing to do, and I am very grateful to them. My friends who have looked at the Bill say that its provisions are so obvious that it should have been enacted years and years ago. They ask why it has taken so long to be introduced. I am enormously gratified by the widespread support for the Bill in the media and among parliamentary colleagues of all parties. Indeed, the press has been almost entirely supportive—not something that a humble Back-Bencher normally achieves with a Private Member's Bill.

The Bill stems from the Fabian Commission on the Future of the Monarchy—a commission that the Fabian Society set up and which reported last year. I should add that I have chaired the Fabian Society and am an elected member of its executive. The Bill would give effect to some of the recommendations in the report of the Fabian Commission.

Why is this important? It is important because I consider—I am sure that this view is shared—that the monarchy should symbolise the values of this country. What we do not want is a situation where the values of the country have moved on and the monarchy is centuries behind the times.

We are surely all opposed to discrimination on the ground of gender. We are surely also opposed to discrimination against Catholics. That in a nutshell is the subject of the Bill. It is a particularly good time to have such a measure because there is a male heir apparent with two sons, so no one would be directly, immediately and adversely affected by the Bill. This is therefore the right time for such legislation; otherwise, it might seem to undermine the position of a particular member of the Royal Family. It is emphatically not doing that.

I turn to the details of the Bill. Essentially, there are three main issues. The first is to end the practice of male primogeniture. Surely, we should stop giving preference to younger brothers over older sisters in succession to the throne. Under the present arrangements, if and when Prince William comes to have children, if his eldest is a girl, she will not succeed but her younger brother will. Under my Bill, the eldest child of either gender would inherit the throne. After a successful reign of over 50 years by the Queen, no one can argue that the job cannot be done by a woman. Indeed, by all accounts, the Queen has done the job extremely well.

The second aspect of the Bill concerns who the monarch may marry. At present, the monarch may not marry a Catholic; yet, there is no bar on marriage to any denomination of Christian or to a Hindu, a Muslim or to people belonging to other religions. Such discrimination against Catholics is surely unacceptable in this day and age. What must many people in Commonwealth countries such as Canada and Australia think, given that they have large Catholic populations? Indeed, coming nearer home, how must this be seen by the Catholic population of Northern Ireland? The anomaly in the present arrangements is that, if the monarch were to marry a non-Catholic who subsequently converted to Catholicism, that would be all right. That, surely, is another absurdity of the present arrangements.

I make it clear that the Bill is not about the disestablishment of the Church of England nor about the religion of the monarch. Those are much too difficult issues for a Bill of this sort and, indeed, my aim is to make progress and not simply to put up arguments that might well be shot down. The Bill is about whom the monarch may marry.

The third proposal in the Bill is to abolish the Royal Marriages Act 1772. It is generally acknowledged that it was passed by George III in a fit of pique regarding some members of his family. That is not a good basis for legislation, as has been shown by subsequent such legislation introduced by many governments. When governments get into a fit of pique, legislation does not always work very well. Even in the 17th century, the Bill was regarded as archaic and badly drafted. The Act requires all descendants of George II—why George II?—except princesses marrying into a foreign family, to ask the monarch's permission for their marriage to be valid, or, alternatively, for those subject to the Act and over the age of 25, to give notice to the Privy Council of an intention to marry and then go ahead after 12 months, as long as both Houses of Parliament have not expressly disapproved of the marriage. That is fairly complicated and fairly bizarre. Vernon Bogdanor, the well known constitutional expert, has said that, there are few more absurd pieces of legislation on the statute book". There is competition for that place, but that Act seems to have the lead.

In any case, the abdication crisis in 1936–37 showed that, where the government are opposed, a royal marriage cannot in effect take place. More recently, in relation to another royal marriage, Harold Wilson, the former Prime Minister, devised the following formula: The Cabinet have advised the Queen to give her consent and Her Majesty has signified her intention to do so". None of the complicated rigmarole of legislation, just a simple basis of dialogue between the monarch and the government.

I fully understand the tradition that new legislation on the monarchy should be a government measure rather than a Private Member's Bill. Indeed, that was the subject of discussions some years ago. My aim is very clear: I hope to persuade the Government that this is a sensible and long-overdue measure, so that in turn the Government will bring forward their own Bill in the near future—I hope soon after the election.

We had some discussions on the measure six years ago. On 27 February 1998, the House debated a Bill that included some of the proposals in the Bill that I am presenting today. The earlier Bill was concerned with equality between males and females in the rules of succession. The late Lord Williams of Mostyn said on behalf of the Government on that occasion: There can be no real reason for not giving equal treatment to men and women in this respect … We do not think that, whatever its merits, a Private Peer's Bill is an appropriate vehicle for so important a change as the one we have been debating".— [OfficialReport, 27/2/98; cols. 916–17.] That is a clear statement, and it is clearly the case. He went on: A major constitutional measure of this sort ought properly to be the subject of a government Bill. We shall be considering how best to carry this forward within government and in consultation with the Royal Family".—[Official Report, 27/2/98; col. 917.] That is a clear commitment from the Government, made six years ago.

There is an important additional consideration, which is that, apart from the United Kingdom, there are 15 Commonwealth countries of which the Queen is the monarch, for example, Canada, Australia, Barbados, Jamaica and others. Those countries would have to be persuaded to enact similar legislation, otherwise the succession would become seriously confused. Obviously, it is beyond my ability and powers of persuasion to contact 15 Commonwealth countries to suggest that they enact similar legislation. That is another reason why this is something that the Government should do. The House will understand that, when six years have elapsed since a commitment by the Government, it is not unreasonable that I should seek the opportunity presented to me today to argue the case again and to lean on the Government as hard as I can.

Before I close, let me refer to one other matter in the other place. My right honourable friend Ann Taylor MP will, on 4 March, present a Crown Succession Bill. It is in most respects, if not all, identical to the Bill that I am putting forward. She is putting it forward under the Private Member's Bill procedure in the other place. Clearly, there is support not only at this end of the Palace of Westminster but in the other place. I will watch with interest to see the progress made by that Bill. We both face the difficulty that an election is coming and the legislation might not work its way through. My key argument is that in the end, this is not for a private Member, this is a matter for the Government. I look forward to enthusiastic support from the Government in this debate. I commend the Bill to the House.

12.52 p.m.

Lord Campbell of Alloway

My Lords, I have an interest to declare; I support, under the aegis of Her Majesty the Queen, retention of the Commonwealth united by common allegiance to the Crown. I also support the retention of the established Church. Whatever may be the intendment, and I say this with respect to the noble Lord, Lord Dubs, it simply is not possible to ring-fence the consequence of enactment of this Bill touching the succession to the throne as affecting the Commonwealth or the established Church as proposed by Clause 6(2). It just is not possible.

The preamble to the Statute of Westminster 1931 requires the assent of all Parliaments of all dominions to an alteration of the law touching accession to the throne. Albeit that according to our indigenous rules of statutory construction the preamble has no legal efficacy, we are involved with a serious matter of comity. Has there been—apparently not—any due consultation on the substance of this Bill as explained just now by the noble Lord, Lord Dubs, with those who advise the monarch, with the dominion realms, or with the established Church, all of whose interests are involved? Is this nothing but pre-emption? As regards the interests of the established Church, I defer to the right reverend Prelate who is due to speak, and I shall say no more.

No Motion has been tabled as to commitment in the event of this Bill being read a second time. Is it the intention to withdraw the Motion? Is this, so to speak, but a trailer for a government Bill? If not, what is it? Is it a vehicle for discussion? If so, in the course of debate today, it shall be discussed. That surely does not mean that it should be read a second time. The question of commitment no longer lies within the remit of the Procedure Committee; it is a matter for the whole House to decide on the Motion, and no such Motion has been tabled. Is it appropriate that this Bill be given a Second Reading, albeit that it is the convention that Private Members' Bills opposed in debate are given a Second Reading and in due course pass your Lordships' House. This convention has not been adhered to in exceptional circumstances, and the intrinsic value of a convention, as distinct from mandatory, codified rules, is flexibility. The opinion of the House on this is flexible; this is a matter for discussion on 26 January, but assuredly not today.

Inevitably, if this Bill were to pass this House, and if it were taken up in another place, it would fail on a single objection. I think that I heard the noble Lord, Lord Dubs, concede this: is not succession to the Crown a matter that more properly lies within the exclusive remit of a Government Bill? The Bill proposed by the noble Lord, Lord Archer of Weston-Super-Mare, was withdrawn on 27 February 1998. My noble friend Lord Forsyth of Drumlean had his Motion for a Humble Address on his Bill rejected by your Lordships' House on 3 December 1999. Such consent, albeit obtained by the noble Lord, Lord Dubs, is no longer required according to extant rules.

If the object is to serve today as a vehicle for debate, surely the Bill shall by the end of today, without a Second Reading, have served that purpose.

12.59 p.m.

The Lord Bishop of Winchester

My Lords, we could spend fascinating days exploring the potential implications of those provisions that the noble Lord, Lord Dubs, has included in his Bill, but also speculating why he has not included other closely related and logically connected provisions that have been energetically canvassed in recent years by the Fabian commission, as he mentioned, among others.

I shall concentrate on Clause 2, headed "Roman Catholic consorts". Looking in passing at Clause 1, however, I am puzzled by the import of subsection (2). I wonder—I think that the noble Lord, Lord Dubs, wonders too, given his quotations from 1998 and the late Lord Williams—about the wisdom and indeed the fairness of separating succession to the Crown from succession to most if not all peerages and other hereditary titles, with their rights, privileges and dignities.

I should declare that, under another hat, I am co-chair with a Roman Catholic bishop of a body called the English Anglican-Roman Catholic Committee, which is made up of members—lay and ordained—of the Roman Catholic Church in England and Wales and of the Church of England and the Church in Wales. The committee is tasked with furthering and monitoring the developing and—thank God—ever-closer relationships between our Churches, although it has not discussed the issues before the House, during my short membership at any rate.

I read with a lot of interest the noble Lord's article in the Guardian of 9 December, and valued the opportunity to listen to his speech introducing the Bill. In the article, he wrote that the provision in Section 2 of the Act of Settlement, which he seeks to repeal in Clause 2(4) of the Bill, and the equivalents to it, to which the Bill's Clause 2(2), (6) and (8) seek to attend, were, an outdated piece of religious bigotry". That is rather tougher language than he has graced us with today.

The noble Lord went on to say in the article, and has effectively said again today, that, the proposal in my Bill would not in itself affect the position of the Crown as the Head of the Established Church". I imagine that it is for that reason that he does not seek to repeal the Act of Settlement as a whole, and with it its close relatives, which also refuse the Crown to Roman Catholics, but I noted his inclusion of "in itself"in the article. I wonder whether his confidence that, the position of the Crown as the Head of the Established Church", is not affected even by his Bill is well founded. I should have wished him to distinguish between the historical roots of the provisions—when placed on the statute book, they were understood to be, to quote the Act of Settlement, absolutely necessary for the safety peace and quiet of this realm", so they therefore seem not sufficiently described simply by the language of religious bigotry—and their contemporary significance

I want also to remind your Lordships—it seems fundamental—that a Church is established to serve, sustain and encourage the establishment of the Christian faith as the ultimate point of reference for government. Behind even this apparently quite unambitious Bill therefore lies this significant question: what kind of state have we, and what kind of state do we want? What kind of public life do we have, with what ultimate accountability for those who carry the honourable responsibilities of government? Were it to prove the case by some chance that the end product of the Bill—if it were somehow to become law—was the separation of the Crown from not only the Church of England but its anchorage in the Christian faith of this land, however expressed, we should be embarking on a unique experiment for these islands of a state whose basis was explicitly secular. The evidence of the 19th and 20th centuries—indeed, of this century so far, and not far from here—is that such a state would be markedly less tolerant and inclusive than our present arrangements.

It seems important to be clear—I say this without any critique or animosity at all—about three things when looking at Clause 2. First, it is the doctrinal convictions—which I respect and the reasons for which I appreciate and hope that I understand—of the Roman Catholic Church, not those of the Church of England, and the teaching and regulations based on them, which still preclude a Roman Catholic from, (being joined) in communion with the Church of England as by law established". Again, that is a quotation from the Act of Settlement.

Secondly, it remains the case that although much less explicit pressure is today brought on parents, one of whom is a Roman Catholic, to bring up their children as Roman Catholic Christians, clearly expressed expectations remain—which again I understand and respect, and can see myself sharing.

Thirdly, if the Bill became law and made it in time for a Roman Catholic consort, in a generation we could therefore have a Roman Catholic heir to the throne who could not join in communion with the Church of England. Although I pray earnestly for that reconciliation of the Roman Catholic and Anglican Churches which for me is the only proper solution to the admitted embarrassments and misunderstandings which the Bill seeks to resolve, I doubt very much whether it is wise for your Lordships' House or the other place either to bank on the timing of that reconciliation or to seek to bring pressure to bear on its achievement.

Finally, there is the intriguing set of legal conundrums to which the noble Lord, Lord Campbell of Alloway, pointed, and the very curious and unsustainable tailpiece to the Bill—its final line, which is: This Act extends to the United Kingdom only". There is the need, approached in part in the Statute of Westminster Act 1931, to maintain a uniform succession to the throne by ensuring that precisely the same rules govern that succession in each of the independent monarchies of which Her Majesty is Queen. My understanding is that any change in those rules would have to be precisely replicated in the law of each of—by my count—the 16 other Commonwealth countries affected.

Those are some of the reasons why I share the view of the noble Lord. Lord Campbell of Alloway, that it is really not at all wise to give the noble Lord's Bill a Second Reading.

1.8 p.m.

Baroness Morgan of Drefelin

My Lords, I should like to focus on gender. I am delighted to be able to make a very short contribution to the debate, and I start by congratulating my noble friend on bringing forward the Bill. I too believe that it is breathtakingly modest but symbolically important, as is this discussion.

The British monarchy is a great institution that is respected throughout the world and much loved at home. I have had the honour to see that at first hand as chief executive of Breakthrough Breast Cancer. His Royal Highness the Prince of Wales is patron of our charity, and I have seen his incredible effect on many thousands of supporters, who have welcomed him as patron and been truly inspired by his hard work and contribution to the charity, and to many other cancer charities. If that position of great respect and love is to be maintained, the institution will need to evolve and change with the times, as it is already trying to do. It is simply unacceptable for discrimination on the grounds of gender to be enshrined at the heart of our society in our most cherished institution. As such, I hope that the Government will respond very positively to the ideas that my noble friend is bringing forward in this debate.

I hope that your Lordships will indulge me in making one short and slightly tangential point that might illustrate the symbolic importance of the Bill. There is another gender issue that is not unconnected and relates to the peerage. Why. when men are ennobled, do their wives adopt a title, but when women become Peers, their spouses do not? I have been able to discover no logical answer to that. When applying 21st century values, it is incomprehensible that that should be the case. Either all Peers' spouses should have a title or none should. I would be most interested to hear the thoughts of my noble and learned friend the Lord Chancellor in that regard.

I am delighted that a significant taboo around debating the monarchy should be broken. I am pleased to have been able to contribute to this debate and I look forward to hearing how this discussion progresses in another place.

1.11 p.m.

The Lord Bishop of Worcester

My Lords, I hope that it is helpful to say that while I feel reasonably confident that the views of my colleague, the right reverend Prelate the Bishop of Winchester are representative of where most bishops in the Church of England might be thought to stand on an issue of this kind, there are those of us who think differently. It is important to place that on the record and I support the comments, ideas and, to some extent, the Bill of the noble Lord, Lord Dubs.

The strategy that is generally deployed in the face of proposals to amend things that people do not want amended is the "where will it end?" argument and to say that if we do this, the constitution is likely to unravel and we shall end up with a secular society with no levers against the untrammelled power of government. That is a deplorable strategy in the face of British history, my reading of which suggests that the solidity of our national lives and the stability of our society has been jeopardised when the sovereign— whether the monarch personally, in former days, or the government—has refused to display flexibility in the face of perfectly proper demands for change.

Because some of our forebears resisted small but significant and symbolically important changes when they became necessary, all sorts of revolutionary ideas started to gain currency—and the 17th century is marred by that sort of development. It is also extremely important, when considering this matter, to take responsibility for what has actually happened to Catholic and non-Catholic relations as a result of legislation, of which this may be the last remaining grin of the Cheshire cat—but it is a pretty malicious grin if you consider our history.

There is absolutely no reason at all why a person married to a Roman Catholic could not be the supreme governor of the Church of England. There is no reason why a Roman Catholic, advised by Ministers, who can be of any religious persuasion or none, could not be the supreme governor of the Church of England. There is no truth in the contention that a change of this kind will unravel the constitution. It is also presumptuous to assume that we know that the Roman Catholic Church would be incapable of, or unwilling to, make the adjustments necessary to allow the sovereign to discharge her or his responsibilities and have her or his correct relationship with the established Church, while remaining a Roman Catholic. Historically, the Roman Catholic Church has not shown itself to be inflexible in situations of that kind, when it has been in its interests to show that flexibility.

The continuation of the respect in which our monarchy is now held will be jeopardised by an inflexible adherence to ways of doing things that belong to a particularly suspect piece of our history. The noble Lord, Lord Dubs, has admitted that a Private Member's Bill will not be the way in which this matter is eventually changed. He is right. It is also correct to admit that this "breathtakingly modest" Bill, as he put it, could logically be extended in many directions. It has not been—because its purpose is to ameliorate a situation that is not of immediate importance, not, perhaps, even of overwhelming importance, but that none the less represents the survival of a degree of offensiveness in the relationships between different groups of citizens in this country, which, in the end, stands a greater chance of prejudicing the credibility of the Christian basis of our society than making minor changes of this kind.

For that reason, it is extremely important that this matter should be discussed—fearlessly so—and that we should not allow ourselves to be frightened by the threat that they might lead to all sorts of other discussions. If they do, we should have the maturity and the intelligence to engage in those discussions on their merits.

1.16 p.m.

Lord Monson

My Lords, perhaps I may be permitted to make a couple of points in the gap. I pay tribute to the characteristic idealism of the noble Lord, Lord Dubs, in relation to Clause 1, but on this occasion his idealism runs up against the sad realities of our time. No one disputes for one moment that, as he said, a female monarch can carry out her duties just as splendidly as any male monarch. That has been obvious for over four centuries and never more so than in the past 52 years.

But the problem today arises from the altered status and perception of the monarch's consort in our intrusive and irreverent age. Some 50 or 55 years ago things were different. Television was in its infancy, there was no commercial radio, there were no talk shows or phone-in programmes and the BBC was still suffused with the spirit of Lord Reith. Populist tabloids certainly existed, but neither they nor the broadsheets felt it their duty to knock from their pedestals anyone and everyone of status or influence. Paparazzo was an obscure Italian word which meant nothing to 99.9 per cent of our population.

How utterly different things are today. A woman contemplating marriage into the monarchy will be treated a little more gallantly by the media, but there will be no mercy for a man. Telephoto lenses, illegal bugging, acquaintances bribed to reveal juicy gossip—this will be his lot. He will know, moreover, that once his wife inherits the throne and he shares with her time-consuming and exhausting royal duties to the best of his ability, he will, nevertheless, be pilloried by the media for not having a "proper" salaried 9 to 5—or, more realistically, 8 to 7—job. If he as much as glances at a girl in a bikini, he will be accused of serial adultery. Such a prospect would deter the bravest of suitable men— although there may be a few unsuitable men—and we would be likely to end up with another virgin queen, or a series of them, but unhappily and unwillingly so in today's climate. We are never going to return to the restrained and well mannered world of 50 years ago.

I have fractionally more sympathy with Clause 2. The religious affiliation of the monarch's consort is relatively unimportant, provided that he or she is prepared, with good grace, to accompany the monarch to churches, cathedrals, cenotaph services and so on. Adherents of most Christian faiths and many non-Christian faiths would be happy to do just that. However, the important issue—and here I echo the right reverend Prelate the Bishop of Winchester—is that the children of such a union (the prospective heirs to the Throne) should be brought up in a broad, tolerant Christian faith which does not claim a monopoly of the truth nor believe, overtly or covertly, that it is the one true religion and that all other branches of Christianity are in error. With that vital—absolutely vital—proviso that the children of the union shall be brought up in the Church of England, the religious adherence of the consort ceases to matter so much.

1.20 p.m.

The Earl of Mar and Kellie

My Lords, I am attracted to the Bill for several reasons and I congratulate the noble Lord, Lord Dubs, on having introduced it. I begin by declaring that I am the beneficiary of systems of male primogeniture which have obviously led to my becoming a double-headed Earl and Hereditary Keeper of Stirling Castle, as well as becoming what the Lord Lyon King-of-Arms calls the Head of the name of Erskine—a fine definition among lowlanders.

These are all hereditary positions presumed to be determined by male primogeniture. In passing, the situation of my noble kinsman, the noble Countess, Lady Mar—the ancient Earldom of Mar dating from 1104—reminds us that the old titles were succeeded to by heirs general rather than by heirs male. The earldoms of Kellie and Mar, dating from 1619 and 1565, must have been among the first in Scotland to have been succeeded to by heirs male—or, to spell it out differently, by male primogeniture.

The Bill sets out in Clause 1 to alter the succession to the Crown from heirs general to strict primogeniture. This would be perfectly reasonable in today's context. It would have no immediate impact in these kingdoms, for Prince Charles is the eldest, as is Prince William. However, it would mean promotion for Princess Anne, who would follow Prince Harry in line to the Throne. Given the Princess Royal's revered position in the Kingdom of Scotland, this would receive a general welcome there.

Among Scotland's non-British neighbours, we have only to cross the North Sea to Norway to find that the Crown Prince has an older sister. So perhaps members of the Storting will be studying today's Hansard, as well as the Norwegian royal family in Asker.

I am sure that Clause 1 meets with approval in anti-discrimination terms. However, I note that it does not allow the Crown Prince, or Crown Princess in her own right, to be a Roman Catholic. I am also attracted to the Bill because it deals with legislation with which my most controversial ancestor, the 6th Earl of Mar, was involved. The Act of Settlement was passed by the Parliament of England and Wales to deal with the crisis brought to a head by the death of the deposed King, James VII and II, in 1701. That was the moment at which his son, James Francis Edward Stuart, should have become King. However, the Parliament of England and Wales chose his sister, Mary, and her husband, alias King Billy, and then his other sister Anne.

As none of these ever visited Scotland, the Scots and the Parliament of Scotland had little real choice on the matter. However, the Parliament of Scotland passed the Act of Security in 1704, reserving to Scotland the right to choose its own sovereign. For me, a Scots Presbyterian, the Act of Settlement should be off the statute book, not just because of its discrimination against Roman Catholics, but also because Prince James Francis Edward no longer poses any threat.

I recognise that the Church of England would have a problem—or believes that it would. I would remind that Church that the sovereign's position in the Church of Scotland is that of a special but ordinary member with the right to be present at the General Assembly or to be represented by a Lord High Commissioner such as my noble friend Lord Steel of Aikwood. But the sovereign attends without even the status of an ordained elder. The Church of England could learn from its neighbour up north.

In Clause 2, the Bill partially redeems itself by allowing the sovereign or Crown Prince, or Crown Princess in her own right, to marry a Roman Catholic. In this clause, I enjoy the opportunity to amend the Union with England Act for which the 6th Earl of Mar was the Minister who spent the winter of 1706 and the spring of 1707 pushing through the Parliament of Scotland, aided, I fear, by the parcel of rogues in our nation. That Earl ultimately raised the Standard of James Francis Edward Stuart in 1715. Your Lordships will be pleased to learn that that is the end of my family history lesson.

The repeal of the whole of the Royal Marriages Act may have wider repercussions than I can imagine, but I suspect that the Act contravenes the Charter of Human Rights—and here I have in mind the section on the right to found a family. I note that the Bill extends only to the United Kingdom, a matter already raised. That is an unusual extension. Clearly, it could lead to a situation in which the Dominions and other states for which Queen Elizabeth is also the Queen could have a different sovereign head unless they all followed suit with the Bill. That would not necessarily be impossible.

The problems which I can foresee are these. First, there might be more than one claimant to be Head of the Commonwealth if the Act were not copied by all the other states. Secondly, the problem of the change of the family surname, unless the convention of a lady taking her husband's surname were discarded. Any development of Windsor-Mountbatten would become as complicated as Saxe-Coburg-Gotha. But then I may be over-familiar with the 300-plus years of the House of Stuart.

Thirdly, there is no challenge to primogeniture. I have heard my father's youngest brother describe a system of ultimogeniture, where the youngest child stayed at home to look after their parents and ultimately inherited their home, while the older ones made their way in the world on their own account.

Fourthly, there is no system offered whereby the Crown can be declined or resigned, except in disgrace. I hope that a culturally more neutral system might evolve. Finally, I am surprised, without checking, that we do not have to amend the Union with Ireland Act 1801.

In conclusion, the Bill would do the right thing for women in this modern age and would begin the process of completing the Catholic emancipation.

1.27 p.m.

Lord Strathclyde

My Lords, it is a great pleasure to follow on in the debate, so ably introduced by the noble Lord, Lord Dubs. He follows in the footsteps of the noble Lord, Lord Archer of Weston-Super-Mare. I am sure that both noble Lords take great pride in that fact.

I do not have strong feelings about the subject matter of the Bill. It is good PR, but it is no great shakes against the life-and-death issues of filthy hospitals and dangerous and disorderly streets which we are normally used to debating.

The issue of succession does not arise at the moment. You could argue, as did the noble Lord, Lord Dubs, that this would be a good time to change the law, or you could argue that if there ever is again a first-born female in the line of succession, that would be the time to change the law in the light of the then feelings of the nation, the Royal Family and the public.

That is a matter of judgment, but let us not run away with the view that those who say there are more important matters to deal with are hostile to women. After all, I have not lived all my life in the reign of Queen Elizabeth II to hold some antiquated view that a woman cannot rule equally well. Indeed, I suspect that there is not a single Englishman who has held that view since the time of the first Elizabeth—surely one of England's greatest monarchs, despite her regrettable high-handedness towards her Scottish cousins. The present system has given us Queens for 117 of the past 168 years of excellent service.

I understand the good reasons that have led the noble Lord, Lord Dubs, to put the Bill forward, and I was pleased to hear him recognise the fundamental point made by the late Lord Williams of Mostyn in 1998 when speaking on behalf of the Government. I shall quote him, as the noble Lord, Lord Dubs, did, but it is worth repeating because it goes to the heart of the process. He said: We do not think that, whatever its merits, a Private Peer's Bill is an appropriate vehicle for so important a change as the one we have been debating. A major constitutional measure of this sort ought properly to be the subject of a government Bill". That was true in 1998 and it must be true, I think, in 2005. So, I ask the noble Lord, Lord Dubs—it may not be the most important point but it follows that raised by my noble friend Lord Campbell of Alloway: why did he decide to bring forward a Bill rather than have a thorough debate on the Floor of the House? If, when he replies, the noble and learned Lord the Lord Chancellor says that these ideas deserve to be looked at, I ask: did not Lord Williams of Mostyn say in 1998, that, the only issue on which a decision has been taken is that which is … equality of treatment for men and women in relation to the succession to the Throne"? I hope that he will be able to tell us whatever happened to that decision. We have had plenty of opportunities for legislation since then. After all, we have found time to legislate for Sinn Fein/IRA men to stand for two Parliaments in two different countries but no time to follow up this decision, which so many people regard as being of great importance.

The noble and learned Lord the Lord Chancellor cannot do today what Gareth Williams did in 1998— show his ankle and then do nothing. Either he should tell the House that the Government intend to alter the Act of Succession or say that he will leave well alone. Seven years after Lord Williams said what he said, the noble and learned Lord cannot say the same thing and expect anyone to believe a word that he or the Government say on the matter.

Noble Lords


Lord Strathclyde

That is my view, my Lords. If I were the noble Lord, Lord Dubs, I would be rather less worried about sibling jealousies in a future Buckingham Palace and rather more concerned about fraternal relationships in Downing Street.

I turn to the practical problems in legislating in this area. Again, Gareth Williams told the House in 1998: Under the Statute of Westminster 1931, before any alteration in the law touching the succession to the Throne can take effect the assent of all those countries of which Her Majesty is Queen is required. The United Kingdom cannot act unilaterally. That is another good reason for introducing a government measure. It would seem very odd to the legislatures of the 15 Realms to be invited to consider assenting to legislation instigated by an individual Member of your Lordships' House". —[Official Report, 27/2/98; col. 917.] I agree with that. I know that the noble Lord, Lord Dubs, also agrees with it, so perhaps the noble and learned Lord the Lord Chancellor can report to the House on the consultations that the Government have had with the other nations affected in the seven years since their decision in 1998. Would all those nations see this change as a legislative priority, including Australia, where the public reaffirmed their support for the present monarchy in a referendum in 1999? Australia is one of our closest allies. I wonder whether Mr John Howard is keen to reopen a debate on the monarchy. Has he urged the Prime Minister to put him in the position of having to introduce a Bill in Australia to change the law on the Crown?

If all nations did not agree, as the noble Earl, Lord Mar and Kellie, explained, in due course we might have a situation such as the one in 1837 where Queen Victoria became Queen here but, under Salic law, her uncle became ruler of Hanover. I think that that would loosen the Commonwealth ties that exist in the Crown with no benefit either to the Crown or to the Commonwealth.

The real problem with some of the issues in the Bill is that, when you tug at the string, a complex knot then begins to unravel. The noble Lord, Lord Dubs, was at his most beguiling in his introduction. He said that it was breathtakingly modest. But I think that real complexities are involved—not least those enunciated by the right reverend Prelate the Bishop of Winchester.

Of course, on the face of it, a Catholic debarment is discriminatory and, in an ideal world, it would not exist. But in an ideal world, the Catholic Church would recognise Anglican orders and a Catholic King could be validly married by the Archbishop of Canterbury. But the world is not ideal. Members of the Royal Family can marry a Roman Catholic—some have— but they cannot currently do so, I believe, and aspire to become head of the Church of England. I know that the right reverend Prelate the Bishop of Worcester suspected that that could be the case, but I would need to discuss that far more fully to be convinced of the possibility.

I am not a member of the Church of England and it is not for me to pronounce on establishment, or otherwise. But the time to address that—and, with it, the future of the right reverend Prelates in this House—is not in an incomplete provision in a Private Member's Bill.

I have sympathy with the noble Lord, Lord Dubs. It is easy to say that things should not be as they are, but efforts to end what is perceived as divisive could end up creating new forms of division. We should all pray for ecumenical accommodation between Canterbury and Rome and, when that is reached in a spirit of parity, these matters could and should be carefully addressed.

The final issue in the Bill is a suggestion that the Royal Marriages Act be totally repealed. I was not entirely convinced by the arguments of the noble Lord, Lord Dubs, on this. It is true that modern Royal Dukes are not as raffish as the Duke of Cumberland and the Duke of Gloucester, who gave so much trouble in the 18th century, but I wonder whether there is not some sense in allowing Crown and Parliament to control those who can become the consort of a monarch. I know that that is an old-fashioned view but perhaps the House will bear with me for a moment.

As the Act itself says in its preamble, marriages in the Royal Family are of the highest importance to the state. That is not just 18th century guff; it is a fact. It is also not a unique power. Very recently in one major Royal House in Europe, a prince was stripped of the right to succession because he was felt to have misled the public about criminal connections in his intended spouse's family. Two other members of the same Royal Family have also been debarred in the past 30 years.

In Spain, those with a right of succession to the throne who marry against the prohibition of King and Cortes are excluded from succession to the Crown, as are their descendants. In Norway, only the King can give permission for a wedding of an heir, in dialogue with Parliament. Even in liberal Holland, anyone in line of succession who marries without permission of Parliament loses the right of succession. Sweden this week is mourning Count Lennart Bernadotte, who was debarred for contracting an unapproved marriage. Other nations still see the importance of having an element of control over who enters the close family of a hereditary head of state. I wonder why we should strip ourselves of a power that other countries have found necessary far more recently than Britain.

The Bill touches difficult issues. All can be looked at if the Government believe it to be an overriding priority. Whatever government we have in the future should take this up only after very careful cross-party and international consultation, which must of course involve the Royal Family and the Churches. If the Government want to discuss this matter as a priority, then we, as the Official Opposition, will play our part constructively in any discussions that they want to have.

In the weeks that are left of this Parliament, I would prefer to attend to the crises in pensions and public services rather than change an institution which has given us unblemished public service for generations and which I pray will continue to do so for many years to come.

1.38 p.m.

Lord Falconer of Thoroton

My Lords, this has been a fascinating debate for a variety of reasons. First, we heard two right reverend Prelates set out diametrically opposed positions. Secondly, we were treated to a genuinely fascinating account from the noble Earl, Lord Mar and Kellie, about how to inherit an earldom in Scotland. We also heard from the noble Lord, Lord Monson. I may not have understood his speech but the first part of it said that from now on only men can inherit the Crown, thus going even further than was suggested. We heard from the noble Earl, Lord Mar and Kellie, a reference to the principle of ultimogeniture, which personally I find very attractive. And perhaps most fascinating of all was the encyclopaedic knowledge of the noble Lord, Lord Strathclyde, of the procedural requirements to marry a member of a European Royal Family. For Members of the Lords who are interested, it was very useful and I am grateful to him for that.

Taking a more serious note, I think that the interventions from all sides of the House indicate that there is a degree of complexity to these matters which may not be apparent at first sight. I should like to deal with the three subjects raised by the Bill one by one. I shall start with the Act of Settlement, which is not the first point in the Bill, but many of the other matters follow from the Act of Settlement. The Government are very conscious that this is a subject on which Catholics, Anglicans and many others have deeply held views which must be treated with respect.

The Act of Settlement 1701, to which the noble Earl, Lord Mar and Kellie, alluded, is part of a political and constitutional settlement with complex historical roots which continues, after 300 years, to have wide-ranging constitutional implications for the United Kingdom and the Commonwealth. The Act excludes from the throne a person who is, or who marries, a Roman Catholic. The critical ongoing relevance of the Act, as both right reverend Prelates identified, is that the English established church is the Church of England, of which the sovereign is supreme governor.

The Act does not prevent members of the Royal Family from becoming or marrying Roman Catholics, but it removes them from the line of succession if they do. The Act also effectively excludes from the throne others whose religion prevents them from being in communion with the Church of England.

Amending those provisions, as proposed by the Bill, raises such issues while the Roman Catholic Church continues to have restrictions on mixed marriages, in particular any that confer an obligation, however tenuous, on the Roman Catholic partner to seek to have children of the marriage baptised and brought up in the Roman Catholic faith. While that Church remains out of communion with the Church of England, the Act's requirement that, whosoever shall hereafter come to the possession of this Crown shall join in communion with the Church of England as by law established", is plainly relevant. I do not say how one deals with it, but one certainly needs to address that issue, as I believe both right reverend Prelates did, but they came to slightly different conclusions.

To bring about changes to the law would be a complex and controversial undertaking, raising major constitutional issues which would involve the amendment or repeal of a number of pieces of related legislation. Legislation that would need to be reviewed includes the Bill of Rights 1688, the Coronation Oath Act 1688, the Union with Scotland Act 1707, the Princess Sophia's Precedence Act 1711 —I hope no one will intervene on that one—the Royal Marriages Act 1772, the Union with Ireland Act 1800, the Accession Declaration Act 1910, and the Regency Act 1937. I recognise that my noble friend's Bill deals with obvious aspects of the Union with Scotland Act and, indeed, the parallel Union with England Act of the pre-Union Scottish Parliament, but it has not addressed any of the issues raised by the other Acts to which I have referred.

I understand—the noble Lord, Lord Campbell of Alloway, referred to this when referring to the Statute of Westminster—that any changes in the law affecting the succession could also possibly require the assent of the legislatures of all the countries of which Her Majesty is Queen. They would need to look to their own legislation. Again, I recognise that my noble friend is aware of this issue by limiting his Bill to the United Kingdom only, but that does not deal with the real issues raised by the possibility of the succession to the Crown diverging among the various countries of which Her Majesty is Queen.

I should make it clear that this Government stand firmly against discrimination in all its forms, including discrimination against Catholics, and will continue to do so. The Government would never support discrimination against Catholics, or indeed any others, on the grounds of religion. The terms of the Act are discriminatory, but we should be clear that for all practical purposes, its effects are limited.

There are 22 members of the Royal Family in line of succession after the Prince of Wales, all of whom are eligible to succeed and have been unaffected by the Act of Settlement. Only four living members of the Royal Family can be said to have been affected by the Act, but they come after the 22nd person in line to the throne. Therefore, to claim that the Act has a discriminatory impact is to ignore the improbability that any of those members of the Royal Family could, in practice, have succeeded.

There is a difference between applying new legislation such as the Human Rights Act to existing legislation, and altering legislation which is part of the backbone of our constitutional arrangements. Indeed, this legislation is interwoven within the very fabric of the constitution and has evolved over centuries. It is not a simple matter that can be tinkered with lightly. While we would wish to remove all forms of discrimination, for a variety of reasons that have been well understood in the course of this debate, this is not the appropriate form.

I turn to the second issue, namely, the succession to the throne and the issue of male primogeniture—the right of succession belonging to the first-born son. It has been raised from time to time, with a view to giving female descendants of the sovereign the same rights as their male siblings. The title of the Crown derives both from statute and from common rules of descent. The sons of the sovereign and their descendants have precedence over daughters in succeeding to the throne, although daughters take precedence over any brother of the sovereign. Any proposals to allow female succession would inevitably, and quite understandably, throw up calls for a re-examination of succession to peerages and titles generally, as specifically raised by the all-perceptive noble Earl, Lord Mar and Kellie.

Such change would be a significant constitutional measure. In an ideal world, changes to succession law to ensure it was based on primogeniture irrespective of gender might be a suitable candidate for legislation. It would ensure that there was no discrimination based on gender. But, given the Government's current legislative programme, the issue is not seen as urgent, particularly as it has no practical discriminatory effect today. It would, in any event, for the reasons that I have given, have to be part of a larger examination of constitutional issues, such as the Act of Settlement, and would probably also require the consent of the relevant Commonwealth countries.

Lastly, I turn to the Royal Marriages Act. This provides that no descendant, male or female, of George II, other than the issue of princesses who may marry into foreign families—I was surprised that the noble Lord, Lord Strathclyde, did not draw that particular aspect of the Royal Marriages Act to our attention—shall be capable of contracting matrimony without the previous consent of the sovereign. Any such marriage so contracted, without consent, shall be null and void.

An exception is provided for any descendant over the age of 25 years who, despite the opposition of the sovereign, persists in his or her resolution to contract marriage. On giving notice of this intention to the Privy Council Office, they may marry 12 months later provided, in the mean time, that neither House of Parliament has declared its disapproval.

There is an argument for amending the Act to remove the need for all descendants of George II having to obtain the Queen's consent before marrying. The longer the current provisions remain on the statute book, the more couples there will be who are covered by the requirements of the Act. Noble Lords should draw their own conclusions from the procedural description that I have just given. However, given the Government's current legislative programme, the issue cannot be seen as urgent and would, again, have to be part of any larger examination of constitutional issues, such as the Act of Settlement.

The Government have not said that the laws we have considered today should never be changed. They do not rule out change in the future, but we have no immediate plans to legislate in this area.

As has been pointed out in the past, it is a complex undertaking and we must be careful not to embark on it before proper consultation with all parties involved. As the noble and right reverend Lord, Lord Habgood, has pointed out on another occasion, as a country without a written constitution, we depend, more than most, on symbolism, on historical precedent and subtle linkages between Crown, Parliament and Church. None of those is unalterable, but we need to get out of our minds the idea that it is possible to make a few simple changes without the risk of triggering off a whole series of other changes which might be far from what we want". Specific work needs to be done on the proposals made in this Bill, such as on the Commonwealth and the other bits of the constitution that need to be looked at.

In conclusion, the Government recognise that many people feel strongly about this matter. However, this Bill would make major constitutional changes, requiring consultation throughout the Commonwealth. It is not needed at the moment as there is no practical discriminatory effect on the current line of royal succession. I therefore tell the House that, although in accordance with our own practices, the Government will not seek to oppose the Bill if it is pressed to a Second Reading in this House, if it were to pass to the other House and find a sponsor there, I shall ask my honourable friends in that House to oppose it.

There is one further matter that I should deal with. It is the very important question raised by my noble friend Lady Morgan. She asked why the wives of Peers can receive a title arising from their peerage whereas the husbands of Peers do not. The advice I have been given is that the arrangements are a long-standing tradition and follow that in wider society where it was always the practice that a woman took her husband's surname and status but never retained her own.

Before I tread into this area, the issue of the title taken needs to be addressed not only in this House but also in society as a whole.

The Lord Bishop of Worcester

My Lords, I thank the noble and learned Lord for giving way. When the Government's legislative programme allows, will he give urgent attention to the fact that the wives of the Lords Spiritual remain untitled? It is a very serious discriminatory matter.

Lord Falconer of Thoroton

My Lords, I sympathise, but I have to be honest and say that I cannot see the current pressure of work subsiding to such an extent that that will get urgent consideration.

The Earl of Erroll

My Lords, I just point out that there are a couple of circumstances in which the wife does retain her status. Daughters of Peers marrying a commoner or someone of lower rank retain their original status. For instance, the daughter of a duke marrying a baron would retain her status. My mother, the Countess of Erroll, on marrying Captain Ian Moncrieff retained her status as the Countess of Erroll. Even when he was promoted to baronet she still retained her status as the Countess of Erroll.

Lord Falconer of Thoroton

My Lords, we have all learned a lot during the course of this debate. I hope that in the light of what I have said my noble friend Lord Dubs will not press the Bill to a Second Reading.

1.53 p.m.

Lord Dubs

My Lords, I thank all noble Lords who have contributed to a very interesting debate. It has confirmed my view that there are depths of knowledge in this House about all sorts of issues which only surface when debates of this kind take place.

I have to read the speech of the noble Earl, Lord Mar and Kellie, to convince myself that it is not all his fault, or that of his forefathers. I am left with less than enthusiasm about the reply of my noble and learned friend the Lord Chancellor. He did not fill me with the sense that the Government will do anything about it, even after the election. I had assumed that the present legislative pressures were such that there would not be any progress at the moment, but in the fullness of time I had hoped that the Government would think again.

The difficulty is that when the day comes that the issue of succession is before us, legislation will then seem to be discriminatory as against the man about to succeed compared with the woman who might succeed. Then it is much more difficult to legislate. The easiest time to legislate is when there are no personal implications for individual members of the Royal Family. That is why there is an argument for legislating before that happens. Of course there is a little bit of time. I assure my noble friend that if the Government are willing to come forward in the next Parliament with such legislation, most of us will be very interested and consider giving it their support.

Perhaps I may just briefly say that I am humbled by the knowledge and the historical sense of many Members of this House. It makes me feel that two or three years' homework might have been appropriate for me. But, there we are; it is not given to us to spend quite so much time on a single issue.

Of course some of the opposition is based upon what I call the utter "conservative"—with a small "c"— opposition to change. Running through some of the speeches has been the thread that this is too difficult, that we may not need to do anything and that we need not bother when the present arrangement is working not too badly. There is such an innate conservatism, not just in this House, but I have heard it in some of today's speeches.

I think that the right reverend Prelate put his finger on the other thread running against change. He said that people use the argument, "Where will it all end?". In a more basic manual labour sort of sense is it not the "thin end of the wedge" argument? The argument that if we make some changes we shall lose control of it is an argument against any change, any time and about anything. Surely, we do not subscribe to that.

On the point made by the noble Lord, Lord Strathclyde, on the Royal Marriages Act, I would refer him only to the fact that the Abdication Act enabled the government of the day to take action which determined the succession. I have quoted what Harold Wilson said when the Cabinet advised the Queen about a royal marriage and the Queen gave her consent to the views of the Cabinet. So one does not need archaic legislation to achieve the particular end as regards the suitability of the marriage by the successor to the throne. I think that there are simpler ways of doing it and that the Harold Wilson government showed that it could be done.

I am left with a slight feeling of disappointment. This has not quite ended on the high note that I had hoped. I am sorry that the Government feel the way they do. I hope that after the election the Government—they will of course be the same government—will look at this again. We should make some progress. We cannot for ever keep saying that we cannot change things because it is too difficult or that we do not believe enough in change. I do not wish to prejudice in any way the similar Bill that my right honourable friend Ann Taylor is going to introduce into the Commons on 4 March, and I hope that it will not be seen in that sense.

I shall withdraw the Motion for Second Reading, simply because the Bill is too difficult for a Back-Bencher to get through. It requires, as the noble Lord, Lord Campbell of Alloway, said, a lot of consultation and negotiations with the Commonwealth governments, all of which only the Government can do. For that reason, and not because I have lost interest in the Bill, I beg leave to withdraw the Motion for Second Reading.

Motion for Second Reading, by leave, withdrawn.