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Succession to the Crown Bill

Volume 743: debated on Thursday 28 February 2013


Relevant documents: 14th Report from the Delegated Powers Committee and 11th Report from the Constitution Committee

Clause 1 : Succession to the Crown not to depend on gender

Amendment 1

Moved by

1: Clause 1, page 1, line 3, leave out “28 October 2011” and insert “31 December 2060”

My Lords, my noble friend Lord Trefgarne will hesitate for a moment or two so that colleagues can leave the Chamber. We will then take his Amendment 1.

My Lords, I have never quite understood, and do not now understand, why it is thought so necessary that this Bill should be driven through with such speed. The plain fact is that the arrangements it seeks to change—I do not disagree with all of them—have been in place in some cases for many hundreds of years. Why we need not only to drive the Bill through swiftly but also to backdate one of its provisions is not immediately obvious to me. I therefore propose that, at the end of the first clause, we should provide that it should come into effect in, say, 50 years’ time, which is a very short time in relation to how long these arrangements have been in place. That would be an appropriate change to the Bill and I beg to move.

My Lords, given that we support the Bill, this amendment does sound rather like, “Please make me chaste, but not quite yet”. Some of us have waited, particularly for the first part of it, for many years and we certainly would not want to see any delay. Therefore, we hope that the amendment will not be passed.

My Lords, I want to add a note of concern to that of my noble friend Lord Trefgarne by referring to the report on the Succession to the Crown Bill produced by the Constitution Committee, which holds the strong view that there is no need for haste.

My Lords, the effect of my noble friend’s amendment would be, as he has indicated, to delay the removal of the male gender bias in the line of succession for almost 50 years. Perhaps I may pick up the point made by my noble friend Lord Elton and his reference to the report of your Lordships’ Constitution Committee. It is fair to say that since that committee reported, there has not been any undue haste. The time made available for debate on this Bill in the other place was not even fully used up, and in your Lordships’ House we are proceeding in the normal fashion with the appropriate elapses of time between the different stages. There is certainly no intention to cut short the debate in this House.

My noble friend has asked why we are doing this now and at this speed. The position is that the Prime Ministers of 16 Commonwealth nations, of which Her Majesty is the head of state, agreed during the Commonwealth Heads of Government Conference in Perth in October 2011—that is why the date has been put into the Bill—to work together towards a common approach to amending the rules on the succession to their respective Crowns. It is fair to say that that was the product of considerable work and discussion over many years. Indeed, discussions were ongoing during the previous Administration in this country. All these countries wish to see change in two areas, the first of which is covered by this clause, and that is to end the system of male preference primogeniture, under which a younger son can displace an elder daughter in the line of succession. It is right and appropriate that this clause will remove a piece of long-standing discrimination against women that may well have been acceptable in earlier centuries, to which my noble friend referred. This provision will modernise and affirm the place of our constitutional monarchy.

At Second Reading the noble Lord, Lord Janvrin, said that:

“If in the future within the line of succession a younger son were to take precedence over an older daughter, it would seem to be at least controversial and at worst discriminatory, out of date and out of touch. To make this change now, therefore, strengthens the monarchy because it avoids any risk of such deep controversy”.—[Official Report, 14/2/13; col. 802.]

That is why this is an appropriate time to make the change, because it will be done without affecting anyone who currently would have a prior claim on the throne. If, however, we wait for a situation where there may be a daughter and then a younger brother, and we tried to make the change then, it is inevitable that that would be more controversial.

Perhaps it is also worth reflecting that if the Duke and Duchess of Cambridge have as their first born a son, have only sons or, indeed, have only daughters, the effect of this clause may not bite until the next generation, possibly after 2060. However, as the noble Lord, Lord Janvrin, made clear, it would be controversial and possibly even destabilising to the monarchy to have this kind of debate at that point. We look forward to the birth of the Duke and Duchess of Cambridge’s first child knowing that we can celebrate, when this Bill is passed, that whether the baby is a boy or a girl they will have an equal claim to the Throne. I therefore invite my noble friend to withdraw his amendment.

My Lords, I hope that we will not hear too much more about the Commonwealth Heads of Government Conference where it was all said to be agreed. These matters are not agreed by ministerial diktat, however senior and distinguished the Ministers may be, but by the Parliaments of the countries concerned, and in some cases by a referendum as well. When the Heads of Government agreed all this in Perth back in 2010, it was subject to parliamentary approval in the relevant countries. That parliamentary approval has not yet been received, not least in this country. I hope very much that we will be thinking in terms of parliamentary approval rather than ministerial diktat, upon which my noble and learned friend seems to be relying.

I entirely accept what my noble friend says on the importance of the Parliaments; indeed some of the realms do not necessarily feel they need parliamentary approval, but obviously in this country we do. I am sure that he would agree that we needed prior agreement before any measures could go forward to the respective Parliaments.

Yes, but that is not included in this clause. That said, I do not wish to delay your Lordships on this matter. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Clause 1 agreed.

Amendment 3

Moved by

3: After Clause 1, insert the following new Clause—

“Succession to the Duchy of Cornwall not to depend on gender

In determining the succession to the Duchy of Cornwall, the gender of a person born after 28 October 2011 does not give that person, or that person’s decendants, precedence over any other person (whenever born).”

My Lords, I rise to move Amendment 3. If His Royal Highness and the Duchess of Cambridge have a daughter, she may, thanks to the Bill, be able to become queen. However, she cannot as of right become Duchess of Cornwall or Countess of Merioneth. That seems to be an anomaly, particularly with the Prime Minister’s focus on equality. I beg to move.

My Lords, I support the amendment. I do so because many years ago when I was a struggling barrister, I was appointed Attorney-General to the Prince of Wales, which carried with it also being Attorney-General to the Duchy of Cornwall. Therefore, I do have some—albeit from rather long ago—experience of what the Duchy of Cornwall is and how it works.

In his reply to the Second Reading debate, the noble and learned Lord made three points, at column 830, about how the Duchy of Cornwall would be affected if this Bill becomes law, as I hope it will. I very much apologise that I was unable to be present, but I was abroad. First, he pointed out that Princess Elizabeth, when heir to the Throne, did not become the Duke of Cornwall. Secondly, he pointed out that if the Bill becomes law and the heir to the Throne is a daughter, the title would go into abeyance in the ordinary way. Thirdly, he pointed out that if the heir to the Throne is a daughter, she will not suffer financially from the title going into abeyance because of the Sovereign Grants Act 2011, to which the noble Lord, Lord Janvrin, had drawn attention during the debate.

As to the first point, it is of course true that the title fell into abeyance when Princess Elizabeth was heir to the Throne. As to the third point, it is clear that the heir to the Throne will not suffer financially anyway, so to some extent we can disregard that as a relevant point. However, I question the second point, and whether there is any need for the title to go into abeyance. Why, I ask the noble and learned Lord, should it?

It seems to me that to enable the heir to the Throne to become Duke of Cornwall if female is the logical extension of the provisions of this Bill. It is within—if only just—the royal title. Obviously, there is no difficulty in a female heir to the Throne being called the Duke of Cornwall because, as we all know, the Queen is also the Duke of Lancaster. In addition to what I submit is the logical extension of this Bill, there is a practical reason why I support this amendment.

I remember very well meetings of the Duchy council, which the Prince of Wales, then a very young man, would always attend. He took a close interest in the affairs of the Duchy. One must remember that we are not talking about just a paper title but a large estate and what has become a large business in recent years. It is my belief that the Prince of Wales’s experience in chairing the Duchy council and dealing with a large estate and matters of business has served him very well in subsequent years.

That experience, which has served the present Prince of Wales well, should not be denied to a future heir to the Throne if she is a woman. In fact, one might almost say it is all the more important that she should, as heir to the Throne, have the sort of experience that the present Prince of Wales has had. I hope that that experience will become available irrespective of the gender of the heir to the Throne. This may come as a bit of a surprise to the noble and learned Lord, but perhaps he will consider the matter and take advice from the Duchy of Cornwall itself if necessary—I could perhaps give him advice—that this is a sensible extension of the Bill.

My Lords, I, too, support this amendment and will add a small footnote to what the noble and learned Lord, Lord Lloyd, has just said. I understand that an amendment would be needed to the Duchy’s founding charter, drawn up in 1337, to enable a female heir to inherit. As the noble and learned Lord, Lord Lloyd, stressed, this is a Bill that provides for gender equality. If that principle is to be fully and completely embodied in it, action must surely be taken to revise the founding charter of the Duchy of Cornwall so that a female heir to the Crown can succeed to it.

As the noble and learned Lord, Lord Lloyd, so wisely pointed out, there is a further practical consideration. If the Duchy is not held by an individual but placed in abeyance and administered by its council, there is a real risk that its affairs will not be administered with efficiency and skill. There is a strong view held by many that the absence of a Duke of Cornwall between 1936 and 1958 led to a serious decline in the running of its estates and other properties, a decline from which the present Duke, now the Prince of Wales, successfully rescued it. For these reasons, I support this amendment.

My Lords, I, too, support my noble friend’s very important amendment. I was going to make the point that I have heard repeated again and again—which my noble friend Lord Lexden has made very strongly for me—that not only does the Duke of Cornwall need a Duchy but the Duchy needs a Duke. Estates, businesses, or whatever you may choose to call them in the modern day and age, that are run by councils, groups of trustees or boards of directors are all very well but in the case particularly of a large agricultural estate such as the Duchy or Cornwall—and there is none larger or better run—the present Duchy of Cornwall runs so well because the Duke of Cornwall has taken such an interest in it, and if there were not a Duke, regardless of that Duke’s sex, I think that would not happen. My noble friend Lord Lexden’s point is absolutely valid.

Another point that has been made, which I will repeat, is that the splitting apart of ancient titles is unsatisfactory and untidy. In dealing with important constitutional matters, although these are technicalities and perhaps of interest only to historians, politicians and noble Lords who can be bothered to spend their Thursday afternoons in your Lordships’ House, they are important matters and need to be done tidily. I do not think they are done tidily in the Bill.

Lastly, when my noble and learned friend Lord Wallace responds, will he assure the House that the Duke of Cornwall—the Prince of Wales—was consulted over this and that he is comfortable with the way in which the Bill is going forward? I do not wish my noble and learned friend the Minister to breach any confidences or step outside the correct procedures but it would give comfort to the House to know that the Government had consulted His Royal Highness and that the Duchy and the council and the Duke of Cornwall himself were comfortable with the way in which this is proceeding.

My Lords, I do not intend to delay your Lordships on this matter. All I will say is that a number of years ago now I had to deal with His Royal Highness the Prince of Wales in his capacity as the Duke of Cornwall in connection with the use of Dartmoor as a military training area. He dealt with it with enormous skill and understanding and we were grateful to him for that. If this amendment seeks to preserve and encourage those arrangements, I am in favour of it.

My Lords, I support this amendment, but for rather different reasons from those of some other noble Lords who have spoken. It is ironic to me that we are having a debate, quite rightly, about equality between men and women in inheriting titles. I understood from what the noble and learned Lord, Lord Wallace, said at Second Reading that if the next heir to the Throne is a lady, she could be called either the Prince of Wales or the Princess of Wales—heaven knows; I would have thought she would be a princess, but I am no expert. If she can be called the Princess of Wales, why can she not be called the Duchess of Cornwall, or the Duke of Cornwall, or whichever way we want to put it? It seems extraordinary, really.

At Second Reading, I spoke about a number of issues that I had with the current structure of the duchy: whether it is in the private or public sector; what it does with its revenue; and the ability of the Prince of Wales to approve legislation. Frankly, this is one of the few Bills that he and Her Majesty should have a view on because it affects them in their roles. However, there are an awful lot of other issues on which I have not put amendments down because I was advised that they were a bit outside the Long Title, so I shall be looking to prepare and propose a Private Member’s Bill on some of these issues in the next Session, I hope. When the noble and learned Lord, Lord Lloyd, said that he had been Attorney-General to the Duchy of Cornwall, I thought, “Fine, the Duchy is getting free legal advice from some of the best lawyers in the land”. However, it then goes to tribunals and says it is a private organisation. Well, no other private organisations get free legal advice from an attorney-general. There are many other issues to discuss on that, but I support the amendment as a logical extension to the Bill. I look forward to hearing the Government’s response.

My Lords, we are dealing with anomalies here and seeking to remove them. One reason we are doing that is because it sends a very clear signal about the attitude of the state towards certain issues. That is why so many of us are such supporters of the removal of gender discrimination in this way.

I genuinely find it difficult to understand why, if we are going to do that, we have not thought through one or two other things that are also signals. The concept of the heir to the Throne having this remarkable opportunity, which history has given them, of running a significant estate and dealing with significant matters of business is something that has characterised the monarchy for a long time and has given the present heir a remarkable opportunity, which he has used to huge effect.

I do not think it right to put before the House a Bill that specifically denies a female heir that opportunity. I know what will happen. She will in effect be the Duchess of Cornwall. I have no doubt that she will be asked to take the chair. I have no doubt that all this will happen. But what I find so difficult—I rise on this point only because it is a continuing concern of mine—is that we do not understand that when you decide you are going to deal with an anomaly, you have to deal with it. You cannot say, “I am going to deal with this bit of it, but I have a particular concern that it would mean changing something that happened in 13-something”. What a good opportunity to remind people of the great length of our history and of the fact that at this moment something has changed and we want to put it right.

So far I have found the Government at their least compelling when they have found it impossible to recognise that these things hang together. I hope that the noble and learned Lord, Lord Wallace, can accept that this will not make any difference in the other countries of the Commonwealth. No one will say, “I am frightfully sorry, I cannot vote for this because I am not prepared to give the Duchy of Cornwall to a female”. Surely this is something we can sort out properly. If the argument is that this might affect the issue of primogeniture with regard to your Lordships’ House and those who were once in it, then the answer is simple: this whole Bill is about the monarchy. We are talking about the monarchy. We are not talking about anybody else. Nothing inevitably comes from this, except possibly a spirit of change. There is nothing that is a precedent.

On this occasion, could we please see that this is a sensible thing to do? Would it not be good to do a sensible thing because it is sensible, rather than to argue about it because there is another argument?

My Lords, my noble friend Lord Deben has been singing from the same song sheet as my noble friend Lord Trefgarne. In effect, he is saying that this is too complicated to rush and we need more time on much more detail. We are on only the third amendment and already we are looking at a series of complexities which have not so far been considered. This Bill is riddled with the potential for unintended consequences of the type we are talking about. We need much more thought and much more time. In the two weeks since Second Reading I have had a great many communications from your Lordships, mostly disagreeing with something I said on that occasion. I have a shortlist of what the principle points are and they are not really addressed in the process today.

First is the point that no Parliament may bind its successors. One of my contentions is that the deed of rights does effectively bind its successors, as does the Act of Settlement. The question of entrenchment was not considered at all, yet it is fundamental to that issue. There is the issue of the sovereignty of Parliament and of the Crown. The Crown in Parliament is a special factor and an expression which needs to be redefined in that context. There is also the question of the limitations that the Bill seeks to avoid and thus whether the constraints which normally apply do not apply to the limitations of power. Amazingly, one of your Lordships accused me of committing “desuetude”. I do not have a clue what desuetude is, but I assure you that it has nothing to do with what has been going on in the Liberal Democrat party.

If the tabloids think they have a new story, I wish to make the point that this Tory Peer has never done desuetude in his life as far as he is aware and if he did, it was an accident and he was lured into it unawares. I found that desuetude is not recognised under British law and does not apply, so we can kick it into touch. On all the other issues, particularly the right of this House to accept the delegation of the royal prerogative, I stand firmly in my belief that we do not have the right to act accordingly and we have been ill advised and inadequately advised about our proper role and authority.

We do not have time available for all these great issues. My concern is that although we could go into them individually now or at some other time, at the rate we can process with this, we do not have enough days or months available to consider this important Bill. I am not opposed to it, but I will leave your Lordships with two thoughts. There are two awful, unintended consequences which we have not thought of. First, if we pass this Bill we have effectively done away with the need for a Scottish referendum because we have driven a coach and horses through the 1707 Act of Union. It no longer exists because you cannot pass this Bill compatibly with the separate proclamation and coronation oaths required by the 1707 Act.

Secondly—and I hate to say this—I fear that if we pass this Bill we have in effect created what will amount to the accidental and unintended abdication Bill. I cannot see how this Bill can be given Royal Assent, and without it, it cannot pass. In those circumstances, the only way it could ever be passed is during an interregnum, which can happen only with the death of a monarch or an abdication. There would then have to be an interval of several days before the proclamation of the new monarch in which this Bill could be passed. I cannot see that it could be done in any other way. We are in an area of total ignorance and floundering. We need more time and more guidance.

My Lords, I support the amendment of the noble Lord, Lord Northbrook. In particular I endorse everything said by my noble friends Lord Lexden and Lord Mancroft. One point to make by way of modest qualification is that I understand there are a number of other dukedoms and titles held by the Prince of Wales which might also need to be changed and modified to bring them into the needs of this Bill. As long as this does not delay action on the Duchy of Cornwall, I hope that the Duchy of Lancaster and any other such duchies should be looked at quickly as well. It would be better to have one composite solution to the problem rather than a piecemeal one.

My Lords, I have a question for the noble Lord, Lord James. As far as I recall, he spoke at Second Reading about the House committing collective treason. Why has he not put down some amendments in Committee to take these arguments forward, so we do not all commit treason?

My Lords, I sought guidance on this. I did not get adequate guidance to enable me to formulate a wording which I could see was appropriate. I wholly agree that it is required. Given time it can be done, but we do not have time.

My Lords, as the noble Lord, Lord Deben, says, the issue is a sensible one. I then break with the tradition of everyone else who has spoken by saying it may be a sensible issue, but the issue is about property, the ownership of an estate, about title—as reflected in the words of the noble Lord, Lord Lang—or about a business, in the words of the noble and learned Lord, Lord Lloyd of Berwick. While it may be an important issue, it is not about the constitution of this country and therefore not really appropriate to what is an important and, in our view, welcome change in our laws of succession. That is what this Bill is really about.

It is quite possible that the founding charter governing the Duchy of Cornwall may need changing—I had not realised that it was in 1337. Interestingly, 600 years after that, from 1937 to 1952, the title fell into abeyance. Our present monarch seems to have done a fantastic job without the benefit of being the Duke of Cornwall in that period, so I am not certain that this needs to be done. If it does, it should be done by another way and not in this Bill, which is about our rules of succession. I hope that this is what your Lordships’ House will address itself to.

My Lords, I thank my noble friend Lord Northbrook for introducing this amendment, which has generated a considerable amount of debate and discussion. I understand where he and other noble Lords who contributed to the debate are coming from as they seek to remove gender bias in the descent of the Duchy of Cornwall. I will try to clarify the current situation. The title can pass only to the eldest son and heir of the monarch. Thus—as has been indicated—when she was heir presumptive to the throne, Her Majesty, as Princess Elizabeth, did not hold the title of Duke of Cornwall.

As has been said, the title and inheritance of the Duchy were created by King Edward III in 1337, and vested in the Black Prince by a charter having the authority of Parliament. My noble friend Lord Deben said that this was an opportunity seek to remove anomalies. It is fair to say that this one is perhaps even slightly more anomalous than it might appear on the surface. The mode of descent specified by the charter is unusual, and differs from that which commonly occurs in respect of hereditary titles. The monarch’s eldest son is automatically Duke of Cornwall immediately that he becomes heir apparent. However, if the monarch has a son who is the heir apparent and that son dies before the monarch, leaving a son of his own—a grandson of the monarch—the grandson would become heir apparent but would not be Duke of Cornwall because he is not the son of the monarch. It is not just a question of daughters not inheriting the title; it would be that grandsons did not, either.

With the Duchy of Cornwall we therefore have an unusual and interesting piece of English history that does not conform to the standard rules of descent for hereditary titles. However, it is exactly that: a piece of English history and not an issue that is of direct relevance to the succession to the Crown—as the noble Baroness, Lady Hayter, indicated—nor to the other realms of the Commonwealth. I made it clear at Second Reading that it is not the Government’s intention to deal in this legislation with UK-specific matters. This amendment very much falls into that category.

My noble friend Lord Lang referred to other titles, to which the same arguments apply. I tried during my reply at Second Reading to set out what would happen to these. I am happy to write to my noble friend to outline the cases in these situations.

My Lords, when the Minister writes to our noble friend Lord Lang on the various other titles, would he include an answer to the point I raised at Second Reading: whether the Princedom of Wales can be passed to a female if the sovereign of the day so decides? He was not able to give me an answer to that at Second Reading, as I recall. If he could touch on the matter in his letter to our noble friend Lord Lang, I would be greatly obliged.

My Lords, I understand that the creation of the Princedom of Wales, let along the matter of it going to a daughter, is very much a matter for the personal decision of the sovereign. The current Prince of Wales did not automatically become Prince of Wales upon Her Majesty’s accession in 1952; that did not happen until 1958. It is a matter for the sovereign, and I will seek to set that out in a letter which I will copy to others who contribute to this debate.

The noble and learned Lord, Lord Lloyd, raised a query about the efficient running of the estate between 1936 and 1952. There have of course throughout history been stretches when there has been no Duke of Cornwall, and the Duchy continues to today. I pay tribute to the leadership which the present Duke of Cornwall has given. When I was in the other place, my constituency, Orkney and Shetland, could not have been more remote from Cornwall. Even in Orkney and Shetland, however, we were aware of the work of the Duke of Cornwall on his estate. I see my noble friend Lord Maclennan of Rogart in his place. Certainly, closer to home, I know of the work of the Duke of Rothesay in respect of the Castle of Mey estates since he inherited them from his late grandmother. Those tributes were rightly paid.

As a footnote, I also commend the Duke of Cornwall for the work that he has done in setting up the North Highland Initiative: three separate charitable companies to promote the well-being of the area.

Indeed. I certainly am aware of that and the contribution that my noble friend has also played in these developments.

As was perhaps surmised by my noble friend Lord Deben, there is of course nothing to stop a female heir having an active role in the running of the Duchy, but that would be a matter for the sovereign to decide at the appropriate time. As has already been recognised, a female heir apparent will not find herself at a financial disadvantage. The Sovereign Grant Act 2011 broadly ensures that financial provision equivalent to the income from the Duchy is made for the heir apparent.

As was indicated by the noble Baroness, Lady Hayter, the Bill seeks to achieve three things set out in the first three clauses. It is about succession to the Crown. It is relevant to the other realms of which Her Majesty is Queen and head of state. I do not believe that this is the legislative vehicle in which to address a number of the other issues which have been raised. For these reasons I invite my noble friend to withdraw his amendment.

My Lords, I am grateful to all noble Lords who have taken part in this debate—to the noble and learned Lord, Lord Lloyd of Berwick, for his useful contribution on legal aspects; and to the noble Lord, Lord Lexden, for his observation that the Duchy’s founding charter would have to be changed and his comment about the serious decline in the fortunes of the Duchy when there was no Duke of Cornwall. My noble friend Lord Mancroft made a good point about whether there has been consultation with His Royal Highness the Prince of Wales. I also noted the comment of the noble Lord, Lord Deben, about denying a female heir the opportunity of being Duchess of Cornwall.

I am still not entirely familiar with my noble friend Lord James of Blackheath’s meaning of “desuetude”. I took note of the comments of my noble friend Lord Lang of Monkton about other changes that might be necessary. What the noble and learned Lord, Lord Wallace of Tankerness, said about a grandson not automatically inheriting was interesting. I am concerned that when you open the box and the genie of unintended consequences comes out on this Bill, all these issues need to be looked at.

There has been a lot of interest in this amendment. I will seek further discussions with the Minister before Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

My Lords, I beg to move that the House do resume. In doing so, I draw the attention of noble Lords to the debate that follows, on which the timing is very tight. I invite noble Lords to keep to their allocated time.

House resumed. Committee to begin again not before 2.48 pm.