Their greatest fear surely is that the workforce might decide to serve its own interests by publishing rival journals that do not presume to profit financially from their labours. Such journals already are in existence and they are becoming quite numerous. In the main, they dispense entirely with printed volumes and rely on the web freely to disseminate their output. Already,

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many of these electronic journals have acquired a status and an esteem that is commensurate with that of many of the time-honoured journals. For that reason, they attract submissions of the highest quality.

In my perception, such journals offer a paradigm of open access. There is open access on both sides. Authors can submit their articles without paying submission fees. Access is also free to any reader. I suggest that there is nothing to prevent the national research councils from taking the unprecedented step of providing small subventions to such journals. The monopoly of commercial journals is under threat from such developments. Also, their monopoly over the legacy of journals is only partial. Many of the journals owned by learned societies have contributed their back issues to JSTOR, which, ostensibly, has impeccable charitable motives.

It is against that backdrop that we must scrutinise the recommendations of the Finch report. Before doing so, we should note that the membership of the committee that produced the report contained representatives from the big commercial academic publishers. Surely, it was they who cautioned that the development of open access should not be allowed to destabilise what, in their estimation, is most valuable in the research communications ecosystem; namely, their own position.

From the committee’s deliberations has emerged a recommendation in favour of the so-called gold option. As we know, this proposes that articles should be made available immediately and free of charge in return for a payment by an author, or by their institution, to the publisher of an article processing charge, an APC. An estimate of £1,750 per article has been mooted, which would provide a very generous income to the commercial publishers, seemingly of an assured nature. Where would this money come from? It is blithely assumed that it would be provided by research councils or by the author’s institution, using a block grant given for the purpose. This would surely deny authors access to journals unless they were in receipt of a research grant, or unless they could prevail upon their institution to support their submission. It would give those institutions powerful control over what has hitherto been regarded as the province of an essential academic freedom: the freedom of authors to submit their articles whenever and wherever they choose.

Clearly, not all journals would merit the submission fee, or APC. Journals would be divided into those that were sanctioned to receive the APC and those that were denied it. It would be difficult to start a new journal, because the APC would not be granted before it had established its reputation. The commercial suppliers of established journals would come to occupy impregnable positions, and they would become even more profitable. This is a nightmare scenario, and I hope it will never materialise. Now is the time to stop the prospect of any such eventuality. However, it is doubtful whether the UK has sufficient leverage over the international market to influence it to any great extent. I hope therefore that this will never materialise.

2.11 pm

Baroness Sharp of Guildford: My Lords, I am a member of the Science and Technology Committee and participated in this short inquiry. I would like to

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thank our chairman, the noble Lord, Lord Krebs, for initiating this inquiry, which I think has been extremely timely. As the noble Earl, Lord Selborne, mentioned, we have already seen some reaction, both from the research councils and from HEFCE, regarding the clarification of their own positions. They have made it clearer that they regard the process of moving to open access as a journey rather than as a one-off, rather disruptive movement.

The report of the working group chaired by Dame Janet Finch was extremely good. It emphasised to a very considerable degree this process of a journey. It noted that it would take time for the world to move towards open access. It said that there was already a very considerable momentum behind that movement, particularly in the world of science journals, but it would be a journey over time. During that period—and indeed for a very considerable time to come—some journals would be published under the gold open-access route and some published under the green open-access route. Under that route, after a period of time, the articles would be placed in a repository and would become available for open access, but with the requirement of an embargo period. Some journals would operate under a hybrid scheme, whereby you could pay upfront to access journals through open access, but the journal would also publish articles for which there was no upfront payment. Those would be put behind a paywall and would be accessible only behind that paywall.

This would mean that, at least in the short run and probably over some period of time, universities would be confronted by a situation in which their libraries would have to continue purchasing the journals concerned as not everybody would be able to use the open access system. Universities would have to pay for their own researchers to make the upfront payment—partly through the research councils or through funders such as Wellcome—if they decided on full gold open access. At the same time they would also have to pay to purchase the journals.

We should bear in mind that the UK publishes only some 6% of the world’s scientific output. Ninety-four per cent of the world’s scientific output comes from other countries. The arguments for gold open access, which in many senses is the best of all worlds—we all acknowledge that it is a very good route to go down—are somewhat similar to the arguments for free trade. If we all indulge in free trade there are very considerable benefits to everybody concerned. On the other hand, if a country moves to open up its markets without other countries also pursuing a free-trade route, then essentially its markets are open to competition but other countries retain protectionism and do not open up their markets. That is a very unsatisfactory situation. It is why the process of opening up towards free trade has been a very long one involving multinational negotiation. The rounds under the General Agreement on Tariffs and Trade and subsequently under WTO took a very long time. Countries sat around the table and essentially traded off particular aspects.

That is not fully taking place in the world of open access. Which way journals are going and which way countries are going is rather arbitrary. As a result of this, we in Britain will be in danger if we move too

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fast. It is quite clear that the initiative came from BIS. The Minister for Universities and Science, David Willetts, was very anxious that we should be the first mover here and that we should to some extent use this to try to kick-start the multinational process that is moving but needs to be accelerated. There is a danger that we will open up our science to access from the rest of the world without the rest of the world opening up theirs to us.

There is a need to consider the time taken here. There is also a need to monitor what is happening and how far the rest of the world is moving. The diagram on page 13 of our report shows that most countries are very much still using the green-gold hybrid system. More countries are going down the green route than the gold route. It is not yet clear that the general move will be towards gold open access. Green open access is a very real option and it is an alternative. There is therefore a need to monitor what other countries do over the course of time and a need for some form of cost benefit analysis.

Partly because I come from a social science background, I have been extremely concerned about the position of the learned societies. They have faced difficulties in relation to the process, both in terms of time and in terms of the preference for gold open access. It is quite clear that many of these societies exist by subscription, but 80% or 90% of their subscriptions come from overseas subscribers. Regarding access to these journal articles without having to pay a subscription, in the social sciences and the humanities you very often have to wait two years for an article to be published. To have to wait another 12 months for others to access it means very little. The consequence is that for many of these learned societies the whole process of publication is not viable. This raises very important issues which need to be considered. As I say, I am delighted with the reaction we have already had from the research councils and from HEFCE. I look forward to seeing further moves in this direction.

2.18 pm

Lord Broers: My Lords, I too congratulate the noble Lord, Lord Krebs, on gaining this debate. I compliment him on his excellent opening speech, which so clearly explained the issues and the reasoning behind our recommendations. I also compliment Christopher Atkinson, our clerk, who once again provided highly professional support to the committee on this inquiry, which was mounted in a very short time. I join other members of the committee in supporting the recommendations of our report, especially that Research Councils UK should include reference to the five-year implementation phase in its requirements documents so that everyone is aware that it is not asking for a precipitous implementation of its rules. I also feel that the long-term aim of migrating entirely to gold access, as has been mentioned by other noble Lords, needs continually to be reviewed. I was particularly troubled by the fact that many of the most important US journals with which I am familiar, and in which I have published, such as Science and the journals of the American Institute of Physics, the American Physical Society and the IEEE, do not seem to have plans to offer gold access. It would significantly reduce the

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impact of some of our most important research if they were not available to our researchers in engineering and the physical sciences. I was, however, reassured by David Willetts’s statement that,

“we will be reviewing implementation in 2014 and that will give us flexibility on timing and everything else”.

I wish now, with your Lordships’ indulgence, to talk about something that is not directly a part of this report. It is the complex situation encountered when considering when and how to publish new science that contains ideas that have potential for commercial application. This was not something we considered, although the noble Lord, Lord Wade, and I asked questions of our witnesses about whether the move to open access would have any effect on patents and commercialisation. We were told that this was a separate matter. This was a correct answer in the context of this inquiry, but this matter is none the less of great importance to the UK economy. Over the past few decades there has been a steady shift of research, as opposed to development—unfortunately, we almost universally elide these two—from industry to universities, with a consequent increase in expectation about the potential commercialisation of ideas emerging from academic research. Much of our applied science and engineering research addresses science that is of interest because it has the potential of benefiting mankind through commercial development. Indeed, on examining the 36 units of assessment in the Research Excellence Framework, I identified at least 15 units in which patents might well be one of the outputs.

It is not always the case that early and wide access to research results is good for our economy. One of our witnesses, Professor Walmsley of Oxford University, referred to this issue, saying:

“Our policies internally at Oxford are to try to capture that IP in a manner that is consistent with UK law—i.e. getting the IP protected before one comes out and publishes”.

I am not aware, however, that this is widely practised and can find no advice on this issue in the description and guidance literature for the Research Excellence Framework. Patents are of course recognised output for the REF, and it is stated that all forms of research will be assessed on a fair and equal basis, but there is always a tension between the wish to publish new results and the need to wait until potentially valuable intellectual property has been protected. In fact, the incentives for academic researchers seem strongly biased towards publishing as early and as widely as possible. I am sure that any formal requirement to ensure that IP was protected before publication was approved would be controversial, as it would be regarded as a constraint on academic freedom. To counter this in industry, many leading technology companies, at least in my experience in the US, directly reward employees for their IP output to compensate them for the loss, for a time, of recognition in the wider world for their advances. I have no specific recommendations to make on this issue, but it is a topic that should be considered in depth by the funding councils, the research councils and by vice-chancellors, with the aim of improving our ability to secure the economic potential of our academic research before we share all our ideas with the entire world over the internet. There has never

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been a time when an increase in our ability to commercialise academic research would be of more benefit to the nation.

2.24 pm

Lord Rees of Ludlow: My Lords, in the early days of the Royal Society, its secretary, Henry Oldenburg, started Philosophical Transactions. This was the world's first scientific journal. It is still going and was the prototype for the tens of thousands of refereed journals that exist today.

Printed academic journals were a real advance in the 1660s and have served us for 300 years, but they are now surely anachronistic: the legacies of Gutenberg and Oldenburg are not optimal in the age of Zuckerberg. Online journals offer vastly greater ease in tracking down published research and accessing all research resources. It is only with the advent of the internet that open access has become feasible.

Among academics, the open access campaign is pushing at an open door. Researchers like their work to be freely available to everyone, including those with no institutional affiliation, but achieving this goal is a bigger challenge in some disciplines than in others. My own field, physics and astronomy, is more or less there already. That is because of a well organised web archive started in the 1990s by Paul Ginsparg in the US. I look at this archive every day and far less often at actual journals. However, we still value the peer review provided by “traditional” journals and want our papers to appear in one as well—for accreditation reasons rather than for increasing the number of readers. In our field, the journals survive. Theoretical physicists have, in effect, green open access with a zero embargo period. If the paper is published, the journal version appears and remains on the archive. However, I realise that other disciplines are less lucky, with a real gap between current practice and the eventual goal. It is rather sad that, thanks to Paul Ginsparg, the educated public can read everything on superstring theory, which will not enlighten them much, but cannot freely access all comprehensible writings in the humanities.

There is a global move towards open access. Indeed, just last Friday, a paper from Dr John Holdren, President Obama’s science adviser, enjoined all government agencies to come up with proposals to implement enhanced open access to the results of all the research that they fund. However, what is not clear is whether the so-called “gold” route will be widely followed globally. Let us remember that we publish less than 10% of the world’s research. Unless other countries follow the gold route, we will be paying twice: foreign scientists will benefit from our decision but we will not get a reciprocal benefit. That is why it is important that BIS should assess the value for money and that RCUK and HEFCE should keep the situation under review in an international context.

The open access issue is in any case being overtaken by new media developments. Traditional journals, even in electronic form, are no longer the sole mode of dissemination of scientific results. Blogs and wikis are playing a growing role. It is not obvious that the traditional scientific paper or monograph will, or should, continue as the prime vehicle for communicating science and codifying the consensus.

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Even the accreditation role of journals may one day be trumped. Learned societies or groups of universities could organise a refereeing or quality control system which could be grafted on to a web archive and could do this more cheaply than traditional publishers—certainly, than commercial publishers.

What needs to be communicated and accessed is no longer just written texts. Huge data sets now exist in physics, genetics, climate science and other areas. Data mining and mashing will offer new routes to discoveries. One would hope that these data can be accessed and downloaded anywhere by anyone.

Despite the widespread support for open access in academia, academia displays undue rigidity in some respects which plays into the hands of commercial publishers. Surely it is far from optimal that the career prospects of young academics depend on a single monograph or on the bibliometric scores of a few papers. It is even worse if there is an “institutionalised” pecking order of journals, with a frustrating and morale-sapping delay while young authors struggle for acceptance in a top-ranked journal. One of the most deplorable remarks that I heard recently was from a professor responding to the question, “How do you decide whether a paper is good?”, with the reply, “By the journal it’s in”.

Even if our committee’s recommendations are taken into account, implementation of the Finch report will still surely lead to a lot of petty accounting and administration in universities, where the funds made available will cover the cost of gold access for only 10% of Russell Group publications, and petty administration within RCUK and HEFCE, where someone is going to have to monitor the embargo policies and APCs of thousands of journals and deal with the issues when there are foreign co-authors, or when the journal of choice is a foreign one that does not meet our access criteria.

The move is superfluous in subjects like mine. It may have unintended downsides in the very different context of the humanities, as the British Academy in particular has been concerned about. I personally doubt that these elaborate regulations will actually allow new ideas to percolate more freely than would have happened anyway, given the pressures from authors and the rapidly changing IT scene. However, as the noble Lord, Lord Krebs, has explained, our report took the Finch committee’s recommendations as its starting point, and we should therefore welcome the positive response that it has elicited from those charged with implementing its intricacies.

2.31 pm

Lord Stevenson of Balmacara: My Lords, I thank the noble Lord, Lord Krebs, for securing this debate, and all noble Lords for the contributions that they have made. This has been a very high-quality discussion.

In previous debates of this type, I have complained that often the good work done by your Lordships’ House in terms of its committees has often been spoilt by the long delays between the publication of their reports and the time that we have been allocated in this Chamber in order to discuss them. I was therefore rather startled to read that this report was published

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only on 22 February 2013, less than one week ago, and I am puzzled by that. I do not expect an answer from the Minister because I am sure that it is not in his hands, but while I am obviously delighted that we are absolutely at the sharp end regarding this report and its impact—rightly so, because it is very important—it is slightly odd that it seems to have jumped the queue in front of other things that we might have been discussing. Nevertheless, we are where we are.

We have all benefited from the committee’s work in this area in terms of what we have heard today, which has raised issues that are at the very heart of the information society, and in particular has also drawn attention to the interesting tension between the business model currently used for academic publishing, particularly for journals, and the aspirations behind open access that were reflected in the Finch review.

We have also learnt during the debate that there are still some queries about whether the Finch review is the last word in this area; I do not think it is. As the noble Lord, Lord Rees, said, in some senses this must be a transitional moment because so much of what is being talked about seems to be pushing at an open door.

Nevertheless, we are left with some questions for the Government to pick up, particularly with regard to the recommendations and conclusions at the end of the report, starting on page 19, some of which need to be put to the Minister in the hope that he will respond positively—in the first place, the need to ensure the clarification of RCUK’s policies, given the work of the committee, particularly the changes to policy guidance to ensure that this is keeping them going on that. I look forward to hearing what progress has been made there.

The report recommends that there is a need to monitor international developments carefully. We know that they approach barriers right across the globe; while it is obviously moving well in this country, it will be successful only to the extent to which we are able to get progress across the other countries with open access policies. Again, are the Government doing all that they can to co-ordinate with other countries what those policies are?

Mention has been made of the pressure that the changes being discussed will place on the learned societies, which we obviously need to keep a close and careful eye on. I would be grateful if the Minister could update us on what stage the discussions have reached on that point.

As I said, this is perhaps a transitional moment but it is also a phased and developed plan and there is a need to commit to review. The recommendations in the report are for a further review in 2016 and then an end-of-stage assessment in 2018. I would be grateful if the Minister could explain what will take place to put these regulations into effect.

There are two points that the Government themselves need to take control over. The first is the full cost-benefit analysis of the open access policy, particularly given the current economic climate. This needs to be brought forward, and I would be grateful if the Minister could update us on that. The other point, particularly in relation to the history of what we have heard about today, is that there was confusion and different perceptions

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about what RCUK was doing in terms of its consultation process, and we would be grateful if the Minister could comment on that and what progress has been made in making sure that the lessons are learnt about that arrangement.

2.35 pm

Lord Popat: My Lords, I thank all noble Lords who have spoken in today’s debate. This House always benefits from having Peers who can speak with experience about their fields of expertise, and it has been a great privilege to listen to the contributions today from those with such detailed knowledge of our research and academic sectors. I will do my best to answer all the points raised but if I do not have time to cover any specific points, I will ensure that I will write to noble Lords.

The Government’s open access policy for publicly funded published research forms part of the Government’s transparency agenda. It is important that taxpayers should have access to the research that they have funded. Innovation and economic growth stand to benefit if greater utilisation can be made of the results of this research.

The Government’s innovation and research strategy of December 2011 referred to our overarching commitment to transparency and open data. The Government are committed to ensuring that publicly funded published research should be accessible free of charge. Free and open access potentially offers significant social and economic benefits. By spreading knowledge created by the UK’s science base, we will raise the prestige and productivity of UK research and facilitate its even greater use to beneficial effect.

To expand access in such a way that the policy implications would be well understood, the Government facilitated an independent group of stakeholders chaired by Dame Janet Finch. The Finch group concluded in June 2012 that a mixed economy for open access was most appropriate, but with the policy direction set towards “gold open access”. Gold requires payment, by the researcher, of an up-front article processing charge, with the advantage of making the information freely available immediately to all users and without restriction of use. The Government’s open access policy has a strong preference for gold open access but, in keeping with the mixed economy recommended by the Finch group, also accepts “green open access”, which allows the publisher to charge the user a subscription or access fee to reach the published research during an embargo period.

My right honourable friend the Minister of State for Universities and Science recently discussed the Government’s open access policy with the noble Lord, Lord Krebs, during his Science and Technology Committee’s recent inquiry into open access. The committee’s report, published on 22 February, makes clear that it accepted that the Government are committed to the policy reflected in the Finch group’s recommendations. The committee did not challenge the conclusions of the Finch group or the Government’s open access policy. I pay tribute to the noble Lord, Lord Krebs, for his keen interest and contribution in progressing this important matter.

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The Government have also written to the inquiry being held by the Business, Innovation and Skills Committee in another place. The Government have made clear that open access entails a journey, not a step change. Higher education institutions and their researchers will continue to be free to choose their research publication channel, but choice brings responsibility. They will be expected to responsibly strive to comply with RCUK’s stated open access policy—that is, preferably to use gold, or alternatively green, with embargo periods of no more than six or 12 months, for science and technology subjects and arts and humanities subjects respectively.

The policy framework for this transitional process, or journey, is as published by the Government in response to the Finch report and illustrated in the decision tree on the Publishers Association website. This illustrates how longer embargo periods of 12 to 24 months are acceptable for researchers when funds to pay the necessary article processing charges for gold open access are not available to the researcher.

Researchers will therefore be expected, when possible, to publish in journals that comply with RCUK’s policy. As I have said, however, they will remain free to choose which publication best serves their interests and requirements. This allows for a robust policy but one with the necessary degree of flexibility to address the concerns raised by the British Academy and others. The Government’s policy will accommodate the needs of different researchers and their respective disciplines.

Government’s assessment of the implications of RCUK’s open access policy has therefore considered its impact on stakeholders, including researchers and publishers alike, as represented in the Finch group. Indeed, the Government’s open access policy for publicly funded research is more responsive to the needs of all stakeholders than the equivalent policies being proposed in Europe and, as announced on 22 February 2013, by the Office of Science and Technology Policy in the United States. By making funding available through the research councils for gold open access and simultaneously allowing green as an alternative, with longer embargo periods when there is no funding available to the researcher for gold, the Government’s policy is sustainable and well balanced.

A well structured policy is important since open access is expected to strengthen direct and spillover benefits from research to stimulate economic growth. Publicly funded research can lead to important innovations. The internet and global positioning satellite technology both stem from publicly funded research. They now contribute to the global economy and enhance the quality of our lives, producing a significant return on the public investment first made.

By improving access to the results of research, open access could further enhance this process, as observed for the publicly funded human genome programme. The success of the human genome programme—in which a $3.8 billion investment drove $796 billion in economic impact and created 310,000 jobs—was partly attributed to the emphasis placed on open access. We now have an even greater opportunity, by exploiting the internet itself, to further amplify the benefits of publicly funded research. By publishing research papers

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in an open access way, we allow computers to search for results and, particularly for gold open access, to apply those findings without restriction. This improves the productivity of the science base.

Lord Krebs: My Lords, I thank the Minister for his very helpful response. However, will he confirm that RCUK will revise its policy and guidance statement to reflect what he has just said—namely that the research councils will follow the decision tree which has been adopted by BIS and was produced originally by the Publishers Association? The Minister said that that was the Government’s position but I want to be clear that RCUK is following that and is revising its guidelines and policy statement.

Lord Popat: I thank the noble Lord for that question. To the best of the Government’s knowledge, RCUK has accepted the decision tree. However, I will write to the noble Lord once we have the paperwork on the implementation, which I believe will be by the end of this month.

The Finch group’s recommendations achieved a balance between meeting the Government’s transparency agenda objective, preserving the integrity of the peer review process for published research and effecting change in a sustainable way. Even so, a preference for gold access was recognised by the Finch group to have a modest cost. It concluded that there could be a transitional cost of some £50 million to £60 million per annum.

The Government have accepted that the cost of publication is a legitimate cost of research. For a fixed science budget, gold access represents an opportunity cost to some in the science base for research forgone. The Government needed to understand the implication of this and their own independent economic analysis, as already submitted to another place, indicated a cost of some £50 million per annum, or 1% of the science base budget of £4.6 billion per annum.

According to the World Economic Forum, UK universities are second only to Switzerland in terms of university-industry collaboration. UK universities are effectively translating the results of research to business. We can witness how important this is when companies such as Tata make substantial inward investments in the UK’s world-class automotive industry. Companies such as Jaguar Land Rover benefit from their links to the UK’s science base, as exemplified by their collaborative research agreement with the Warwick Manufacturing Group of the noble Lord, Lord Bhattacharyya. Even so, publicly funded research is often difficult to find and expensive to access. This can defeat the original purpose of taxpayer-funded academic research. It limits understanding and innovation. The Government’s open access policy, coupled with the new Gateway to Research being developed by the research councils to directly link small businesses to research results and the people behind them, will open up a new age in the translation of research for innovation. The UK’s economy and its people—the taxpayers who fund research—will be the beneficiaries.

I will now address a number of questions raised by noble Lords. As I said earlier, the decision tree is accepted by RCUK. We accept the view expressed by

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the noble Lord, Lord Krebs, that it is a rapid change, with 2013 being the start of the process. However, it is a journey, not an overnight change. It is feasible to implement policy from 2013 since it is the start of the process of transition over the next five years. All research suggests that it is not disruptive change, but rather reasonable change. Within this five-year period, we will see what we can do to accommodate the concerns of the stakeholders if any difficulties arise in the transition process. Therefore, the noble Lord, Lord Krebs, can rest assured that we will look into and address the concerns of the stakeholders.

The noble Viscount, Lord Hanworth, mentioned a cost of £1,750. This is a broadly based average figure. He was not in favour of what he implied was a monopolistic position. However, the reality is exactly the opposite, as confirmed by the noble Baroness, Lady Sharp. This is very much like free trade. We are taking the lead in this matter compared with our European and American partners.

I may not have covered a number of questions raised by noble Lords but they can rest assured that I will write to them. We will make sure that this policy is implemented as smoothly as possible. Obviously, that process will be reviewed and we will definitely address stakeholders’ concerns.

The noble Baroness, Lady Sharp, talked about other countries. Europe is moving to mandatory open access in the EU framework. The Americans are also now working on this subject. They want to support free access and make sure that free access publicly funded research is fully utilised and benefits the people of the United States.

I hope that I have covered some of the issues raised by the noble Lord, Lord Krebs, and other noble Lords. I will certainly look into this again and make sure that responses are provided as quickly as possible.

Succession to the Crown Bill

Succession to the Crown Bill14th Report from the Delegated Powers CommitteeSuccession to the Crown Bill

Committee (Continued)

2.49 pm

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

Amendment 3A

Moved by Lord True

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

“Royal marriages: heirs of the body

(1) A marriage is a Royal Marriage for the purposes of establishing the claim of any person to succeed to the Crown as heir to the body if that Marriage is a marriage between a man and a woman.

(2) A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage.

(3) This section does not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply.”

Lord True: My Lords, I apologise for not having contributed at Second Reading. I had put my name down to speak but I was unavoidably delayed in coming to the House and rang to withdraw my name.

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However, I did listen to all the very thoughtful debate that I was able to. A core concern from noble Lords on either side of the argument was that succession to the Crown should be removed from controversy. I share that view and it is in that spirit alone that I have raised the issues in this amendment which were only momentarily touched on in another place.

I must also apologise for the lateness in tabling the amendment. This is because I have been involved in discussions with the Public Bill Office until yesterday morning about the most appropriate form of raising this matter. In some respects, the questions raised here and in Clause 2 are the same and that is whether there is an unintended risk, if certain issues are not addressed with clarity and foresight now, of future controversy over the succession and even of a disastrous unintended consequence of dividing the Queen’s various realms.

Two modern social developments lie behind this issue. The first is the techniques and ethics of the procreation of children and social attitudes towards them which have been fast-changing, still are changing and will continue to change. Secondly, at some time in the future a monarch and his or her consort may wish, where no other course is available to them, to seek to procure a child by use of a donor. That child, the first of whom would have been the heir if born naturally, would become a much loved member of the Royal Family and one whom many might wish to see as their monarch. There are clearly seeds of controversy there. The second issue is that it seems likely that the Parliament of the United Kingdom, although not those of all Her Majesty’s realms, will very shortly legislate to allow same-sex marriage. These measures, taken together, will alter for all time the concept of what a family, including, potentially, a Royal Family, could be.

I must make it clear that I take no view on same-sex marriage for the purpose of this issue. In case anyone should think there is an ulterior motive, I should make it clear that I do not believe that all the consequences of that momentous social change have been thought through and I would not have been inclined to take the step without more notice to the public and wider and more open consultation. Be that as it may, I did not want to raise the issue of the Crown, in any circumstances, in our debates on the same-sex marriage Bill, lest it be seen as an attempt to use the monarchy as a device to debate that Bill. That would be deplorable: I would not and will not take such a step. The issue is, none the less, fast upon us. As we are legislating in this Bill to change the laws on royal marriage and succession, it would be wise to reflect on the potential impact on the Bill also now before Parliament on same-sex marriage and how those two Bills might, in future, interrelate.

The governing phrase as to the conveyance of the right of succession in the Bill of Rights, which is reused in Section 1 of the Act of Settlement and is left unchanged by this legislation is that he or she be the “heir of the body” of the Electress Sophia of Hanover and her successors, being Protestants—which we will discuss later. There is surely scope for contentious argument, if not litigation, over what, in the new circumstances of the 21st century, is the definition of those ancient words “heir of the body”. That phrase does not require that the heir should be the heir of two

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specific bodies. Indeed, the originating Act of Settlement includes reference to the body of a monarch and a prospective monarch alone. What then if, in the context of either a different or a same-sex marriage—the question is immaterial—the sperm of a King is used to procure a child of his body on a donor woman or, even more directly, a child is born from the body of a regnant Queen by use of a donor? Some might ask whether the child is the heir of the body of that regnant Queen. This is the only method by which an heir of the body could be procured by a same-sex married monarch, and the human impulse of such a loving couple may well be to seek to procure such an heir. Will some not see that child as a legitimate heir of the monarch’s body if that marriage has been accepted by the British people? Might that child not feel that he or she has, in turn, a human right to expect to succeed to his or her mother or father?

I am grateful for the correspondence I have had with my right honourable friend the Attorney-General on this subject. It is not for me to place his opinion before the House but, in essence, I am reminded that the laws governing succession require that the descendant be the natural born child of a husband and wife, that they have been enshrined in our constitution for generations and that they have become part of our common law. Indeed so, but we are about to legislate, specifically and deliberately, to change the law of marriage in this realm. As we are often reminded, what is long enshrined in the common law of England is not necessarily proof against legal challenge, not least in the field of equalities and human rights. I would like to be assured that the common law will continue to be an adequate bulwark against division and controversy.

It has also been put to me that Section 48(7) of the Human Fertilisation and Embryology Act 2008 is worth noting. This Act states that nothing in the Act that relates to parenthood,

“affects the succession to any dignity or title of honour or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.

It may well be that the Crown is encompassed within that definition as a dignity, and the word “dignity” does indeed occur in the 1700 Act. However, it is not so explicitly stated and certainly not in a way that is clear to tens of millions of non-lawyers who are subjects of the Crown. The public rightly see the Crown as separate, distinct, beyond and above. It is, indeed, the fount of all title or dignity of honour. It would be wise to put it beyond all doubt or challenge that the succession to the Crown is engaged by the Human Fertilisation and Embryology Act. Furthermore, are we certain that it is not arguable in a court, in default of a statement to the contrary, that the UK Parliament had decided, in legislating to redefine marriage, to alter the nature of marriage completely and thus that, in the context of a fully lawful same-sex royal marriage, the definition of—I return to the words—an heir of the body in the Act of Settlement might constructively be widened by the courts from the hitherto understood common law definition as it applies to the UK Crown. It might be wise to put the fact that Parliament had no such intention—if it does, indeed, have no such intention—beyond any doubt.

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My right honourable friend the Attorney-General and my noble and learned friend on the Front Bench, who has been saying this again today, have argued that it would not be appropriate to go beyond what was expressly agreed by the realm Heads of Government in Perth. I accept that argument but I am not arguing that we should go beyond that: quite the reverse. I am simply suggesting that we should put in the clearest possible stops and stays to ensure that we can never, in this realm alone, be taken by legal process and challenge, rather than deliberate decision of Parliament, beyond what was agreed and where other realms might wish to go.

Our Queen is monarch of 16 realms, in not all of which is the view embodied in the legislation on marriage now before Parliament shared or likely to be shared. In Canada, gay marriage is already legal, the Australian Parliament has recently rejected it. A divergent view on the legitimacy of a royal marriage might, and a divergent view on the legitimacy of an heir would, break the union of realms. In 1837, the dominions of the Crown were irretrievably separated because of differing rules on the succession. Hanover did not allow female succession, so Queen Victoria could not rule Hanover, which passed to her uncle. It seems inherently unlikely that in the present diverse evolution of social policy in the Queen’s realms that any progeny of a same-sex marriage—even same-sex marriage itself—would be accepted in at least some of the existing kingdoms. Is it not important, therefore, that those realms, at this time of change both in the rules of succession and in the UK in the law of marriage, should all be held explicitly to a common understanding of what a royal marriage and, most importantly, an heir of the body means for the purposes of succession?

3 pm

I do not claim that the words in the amendment, which I obviously do not intend to press today, are right, although they attempt to state the common law as I understand it is intended to be. I ask my noble and learned friend to consider at a later stage of the Bill, either in a formal statement of the existing law or, better, in the Bill to record the fact that Parliament’s intention is, and will remain, that for the purposes of the succession, Section 48(7) of the Human Fertilisation and Embryology Act has and will have force in relation to the Crown, unless and until our Parliament determines otherwise and, further, that for the purpose of determining an heir of the body, the definition of marriage and parenthood does and will remain as it was at the time of the introduction of the Bill, unless the Parliaments of the United Kingdom and the other realms decide otherwise.

All this may seem to be highly remote, but we should consider what might happen in the future. Here, the efforts of, for example, the Duke of Sussex’s son, Sir Augustus D’Este, in the courts and before the Committee of Privileges in the Sussex peerage case in 1844 demonstrate the personal propensity of a person of undoubted royal descent to contest for legitimacy by legal process. How much more are those corridors open today? This could happen one day unless we have and keep total and specific clarity.

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The monarchy and unity of the Queen’s realms must be protected from potential litigation and controversy, not just beyond all reasonable doubt, but beyond even unreasonable doubt. I therefore submit that without prejudice to the decision on same-sex marriage or the evolution of the ethics of childbirth, it would be prudent to put these points for now beyond any doubt and, ideally, in a legal form that reflects the understanding of the law to which all 16 Parliaments of the realms now and will, unless they agree otherwise, continue to ascribe. That is what the amendment attempts to do. I beg to move.

Baroness Hayter of Kentish Town: My Lords, I will be brief. I am sure that the Minister will give good answers to the questions raised. Perhaps he may also, for my clarification, let us know about the implications for adoption in this. I am sure that it is in the noble and learned Lord’s briefing. We agree that the Bill is to change the rules of succession as regards gender and the ability to marry someone of the Catholic faith, rather than open up and perhaps decide on interesting issues. In the words of the noble Lord, Lord True, this issue is remote. We are talking about some years ahead, and perhaps we might leave the matter to our heirs and successors to decide.

Lord Trefgarne: My Lords, I share some of the concerns expressed by my noble friend Lord True. The plain fact is that the single-sex marriage legislation that is on its way through Parliament appears to be generating some unlooked-for consequences—and this issue may well be one of them. I hope that my noble and learned friend can reassure us.

Lord Elton: My Lords, I observe that this matter is outwith the terms of the Long Title. However, the Title has been postponed and it is possible to amend it, if necessary.

The Advocate-General for Scotland (Lord Wallace of Tankerness): I thank my noble friend Lord True for the amendment and for the sensitive and thoughtful way in which he moved it and presented his concerns. Indeed, I seek to reassure him that the amendment is unnecessary.

Subsections (1) and (2) of the proposed new clause state the current position in respect of heirs of the body and adoption or artificial reproduction. I recognise that my noble friend indicated that he was not making any claims as to the drafting of the amendment but he said something that I have previously said—it is important that the succession is removed from controversy and there should be certainty. Subsection (3) could be an opportunity for some controversy if a case had to come before both Houses of Parliament. However, the spirit in which my noble friend moved the amendment was to try to seek some clarity on this matter.

The laws governing succession to the Crown that require that the descendant be the natural-born child of a husband and wife have been enshrined in our constitution for generations. Children who have been adopted may not succeed to the Throne, whether their new parents are of opposite sexes or the same sex. As my noble friend said, it is immaterial; indeed, even without the Bill, the issues he raised are pertinent.

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I repeat that children who have been adopted may not succeed to the Throne, irrespective of whether the parents are of opposite sexes or the same sex.

It was never our intention to codify all aspects of succession to the Throne in the Bill. Rather, as the noble Baroness, Lady Hayter, indicated, the agreement reached among the realms was quite specifically limited to removing the male bias and ending a specific discrimination against Roman Catholics, and it is not appropriate that we go beyond what was expressly agreed.

Although the Adoption Act 1976 and the Family Law Reform Act 1987 refer only to the succession of titles being left unchanged by their reforms, the Lord Chancellor stated at Second Reading of the Bill that became the 1987 Act that there was no intention to alter the rules on the descent of the Crown. It is also worth noting, as my noble friend observed, that the Human Fertilisation and Embryology Act 2008 states that nothing in the Act,

“affects succession to any dignity or title”,


“renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.

The Bill will maintain the position under the Adoption Act and the Human Fertilisation and Embryology Act 2008 referred to above. It will not change the way the Crown, or titles or dignities, descend. We also consider it to be unnecessary to define marriage for the purposes of this proposed new clause as set out in subsection (1). Only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear. I have tried to keep my response brief and concise, and I hope that it provides the reassurance that my noble friend seeks and has properly raised. I invite my noble friend to withdraw the amendment.

Lord Elton: My Lords, I hope that my noble and learned friend on the Front Bench will take time to consider this matter between now and Report, and that my noble friend will also occupy that time. The answer that my noble and learned friend has given does not entirely cover everything because becoming Queen or King is rather more than receiving a dignity or title. The term used in the Bill is “possessing” the Crown, which is different from inheriting a title, and that is surely what we are concerned about.

Lord Wallace of Tankerness: We will certainly reflect on this matter and I can assure my noble friend that considerable consideration has been given to it. However, I take the points that he and my noble friend Lord True made and will give further consideration to them. Nevertheless, I hope that I clearly indicated our view with regard to an “heir of the body”.

Lord Elton: I accept that that is the current position. I hope that we shall be reassured if it remains the same on Report.

Lord True: My Lords, I am grateful to those who have participated in this short debate and apologise for the length of my opening remarks. However, this is an issue of profound potential importance, not only as it affects our country but the Queen’s realms as a

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whole. It is inherent in the Perth agreement that we have an acquis agreed by all the realms, and no door should be left open to the crawling peg of equalities, rights and other challenge by a potential heir who is excluded from the Crown—as they feel, unfairly—against their rights by the existing deposit of the law.

I am not a lawyer, but I am concerned as an historian that the base of the law and the phrase “heir of the body” is a very ancient phrase which is buttressed only by the common law and the doubtful cover, in my view, of the clause from the Human Fertilisation and Embryology Act that I cited. I agree with the interpretation of my noble friend Lord Elton that that Act may be deficient in terms of providing protection for the Crown from the kind of challenge that might arise. My right honourable friend the Attorney-General made this point to me also, but I am afraid that I do not find full comfort in the remarks made by the Lord Chancellor at a time when the developments in the technology and science of birth and reproduction, and certainly the developments in the nature of the law of marriage, were far distant in the future and not necessarily conceived of. I say to the noble Baroness that this might be remote, but perhaps people thought before 1936 that certain things might be remote. It is the duty of Parliament, when legislating on something as grave as the succession to the Crown which Her Majesty holds on our behalf, to think about the future. It may, of course, be no more remote than that the child whom we all so fondly expect may be born gay.

I will return to the matter and would be grateful for further discussion with my noble and learned friend on the Front Bench to see if we cannot find a way of clarifying this. I am not going to go beyond the Perth agreement, but I think it is important that we have “awful clarity”—in the old language—on this very great matter. With that, I beg leave to withdraw the amendment.

Amendment 3A withdrawn.

Clause 2: Removal of disqualification arising from marriage to a Roman Catholic

Amendment 4

Moved by Lord Cormack

4: Clause 2, page 1, line 7, at end insert “provided that agreement has been reached with the Vatican that any children of the union can be brought up as Anglicans”

Lord Cormack: My Lords, with Clause 2 we come to the kernel of the Bill. As your Lordships will know, that clause at the moment reads:

“A person is not disqualified from succeeding to the Crown or from possessing it as a result of marrying a person of the Roman Catholic faith”.

It is a simple, unambiguous statement, but it leaves a lot of questions unanswered. These are questions of profound significance to our constitution. Therefore, I am going to suggest that we add the amendment that I have tabled, which continues that clause by saying,

“provided that agreement has been reached with the Vatican that any children of the union can be brought up as Anglicans”.

We have talked recently about clarity; my noble friend Lord True talked about it in his amendment. We have also talked about certainty. Like my noble

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friend Lord True, I was prevented from taking part in the Second Reading debate. I was sorry that I could not listen to much of the debate, but I was utterly committed to an event that took me away for some two or three hours—otherwise, I would have tried to air this subject then. That is why I put down an amendment which I hope is helpful to your Lordships’ House and will improve the Bill.

We have in England an established church, of which the Queen is the Supreme Governor. That is a fact and it is a constitutional fact of profound significance. I do not in any way wish to discriminate against any person of any faith, but our constitution rests on the fact that the monarch is the Supreme Governor of the established church. We have an established church; we have bishops who sit in this House and I am delighted to see the right reverend Prelate the Bishop of Derby here this afternoon. I hope that he will be able to contribute to this debate. We have an established church, which means that every man, woman and child in England has the right to the services of that church. Every one of us in England lives in a diocese; every one of us lives in a parish and every one of us is entitled to the services of the parish priest, the diocesan bishop and to the other appointed dignitaries. Every week, those of us who are practising Anglicans pray for the Queen as our Supreme Governor.

3.15 pm

I understand the motivations of those who have introduced this Bill. I think it has been rather rushed, and a number of noble Lords have mentioned the words “possible unintended consequences” during the course of our deliberations. We could be facing a very difficult unintended consequence if we do not further clarify the Bill in this particular regard. Therefore, I am suggesting that there should be some proper agreement or concordat—call it what you like—with the Vatican to say that the children of a union with a Roman Catholic partner in the marriage are not obliged, according to the Roman Catholic canon that exists, to be brought up in the Roman Catholic faith. We cannot have a Roman Catholic—in no sense is this casting aspersions on anybody—as Supreme Governor of the Anglican Church; it is just not possible. At the same time, this is such an integral part of our monarch’s role, and the establishment of the Church of England is so bound up with the constitution of our realm, that we need some form of concordat or agreement sanctioned at the highest level of the Roman Catholic Church. That means the Vatican and, ultimately, the Pope.

As I have referred to the Pope, perhaps noble Lords will forgive me if I digress for half a moment to express the warmest good wishes to His Holiness as he retires this very day from active service. He is a man for whom I have the highest possible regard, and many of us in the Chamber—and many in the House who are not in the Chamber this afternoon—were greatly moved when he addressed us in Westminster Hall a couple of years ago. I very much hope that the new Pope will be held in similar regard.

First, we need to talk formally with the Roman Catholic hierarchy in this country—with Vincent Nichols, the Archbishop of Westminster, and his senior colleagues. Then we need to make an approach to the Vatican, so

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that there is no ambiguity or doubt that any children of such a union could be brought up as Anglicans. My proposition to noble Lords is very simple, but it is one of considerable importance and significance.

I do not claim that the words of my amendment, which is kindly supported by my noble friend Lord Freeman, are perfect—of course they are not. I am more than happy to talk to anybody, in any part of the House—with my noble friend the Minister and others—about different wording if that seems more appropriate. However, I feel completely convinced that there must be some reference along these lines in the Bill. If we pass the Bill into law and it becomes an Act with no such reference in it, we may be building up problems for the future that we do not want.

Some have suggested that in the event of our having a Roman Catholic sovereign, there could be some form of regency arrangement. That may sound superficially attractive, but a regency can last a very long time. Our beloved Queen has now been on the throne for 61 years. Had she been a Roman Catholic and had there been a regency, we might have gone through two or three regents in the time, so I do not think that that is an answer.

The only sensible—I will rephrase that—the only watertight answer is to have something in the Bill that makes it plain that an agreement has been reached with the highest authorities in the Roman Catholic Church that should such a union take place, the children of that union could be brought up as Anglicans and could therefore properly take on the very real and weighty task and obligation of being Supreme Governor of the Church of England. This is a responsibility that Her Majesty has taken extremely seriously throughout her reign, and that she has discharged with infinite wisdom and grace, and in a way of which we can all be proud, whatever our personal faith or lack of it. With those few words, I beg to move.

Lord Deben: My Lords, I associate myself with the final few words of my noble friend Lord Cormack about the nature of Her Majesty and the way in which she has discharged her duties. Not only has it been remarkable but it has been so remarkable that it may have blinded us to the nature of the discussion that we are having today. In the past, the Supreme Governor of the Church of England was a Calvinist and a Lutheran. The only reason they were able so to be was that they were prepared to say, of their own volition, that although they were Calvinist or Lutheran, for this purpose they would be a member of the Church of England. I make no comment on them; I merely say that it was possible. Indeed, before the Act of Supremacy, James II was both a Catholic and Supreme Governor of the Church of England. Therefore, the idea that this is impossible is factually wrong. I start with that. I do not think that my noble friend needs to interrupt me because he will have other things about which to interrupt me when I get to them.

I say to the Minister that I accept that this is a very anomalous circumstance. I will now say something very carefully because I do not want it to sound hurtful. I mentioned the remarkable role that Her Majesty had played. There is no doubt that, as Supreme Governor of the Church of England, she has brought

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something to the religious life of this land that has been unique and remarkable. However, there are few theologians who can easily argue that this position has a serious theological basis today. We all know that the reason we have it is that the state decided to nationalise the church—that is what happened—in order to get its hands on money and power. It is no good ignoring that. It is not a prejudiced comment. I used to believe it when I was an Anglican, so I cannot be criticised for saying it. That is what happened. The arrangement today arises from an attempt to bring together the facts of history with the perfectly reasonable desires of religious people to make the establishment work. I am in favour of the establishment; I do not want the Church of England disestablished. I pray that, one day, the Church of England and the Catholic Church will again become one. However, I have to say that this proposal is ridiculous.

First, we will put something into the Bill which we have not done since the Act of Settlement. We will allow a foreign potentate, the Pope, to influence the way in which our future Queen or King will be decided. I am a Roman Catholic and I am proud of my allegiance to the Pope. I find this allegiance in no way contradicts my allegiance to the Queen of England. She is the Queen of England as far as I am concerned because I am English, but I realise that she is also the Queen of Britain. I defer to my noble friend. I see no contradiction between those allegiances any more than I see a contradiction with my pride of being a citizen of the European Union. These are citizenships and relationships which we can hold together. This is important as each one contributes to the strength of the other. However, will this House suggest that, for the first time, the Pope shall become a constitutional figure? I find that an impossible answer.

Secondly, in what position does this amendment put His Holiness? Must he say, “The Church’s teaching is this; canonical teaching is this; but, in order that we might do a deal with the British Crown, we will say something quite different about the heir to the Throne”? That looks to me precisely the sort of deal, a political deal, about which many reformers complained. I cannot possibly put my name to something which proceeds in that manner. Then, one has to ask His Holiness to say something most remarkable; that, despite the Church’s teaching, children of the union can be brought up as Anglicans. Therefore, the Pope says that, they get married and they say, “The Pope may say that the children can be brought up as Anglicans but we do not want that”. What, then, do we say in this constitutional arrangement? Do we say, “You better listen to the Pope. We have now brought him into the constitution so we must do so again to sort this out”?

What happens if they bring the child up as an Anglican and he does not think much of it? In fact, I was brought up as an Anglican and I was a member of the Synod of the Church of England. I became increasingly clear that the Anglican Church had moved from being part of the Catholic Church to being a sect because it had decided that it had its own rights to make its own decisions about the teachings and the doctrines of the Catholic Church. Once it did that, it seemed to me to change its position. Therefore, I

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ceased to be an Anglican and I became a Catholic. What happens if the Pope has said that the heir to the Throne may be brought up as an Anglican, he is brought up as an Anglican and he says to himself, “In truth, I think that the Pope is right—with the exception that he has done a deal with the British authorities. I have therefore decided that I will become a Catholic”? What do we do as a society then? Do we say, “We are frightfully sorry, you are not allowed to decide that”? That is precisely the situation which will arise under this particular amendment.

There may be many ways of dealing with this. I have my own particular way, with which I shall not bother the House as I know very well that the Government are determined not to take it seriously. It seems to me perfectly right that the Church of England should have a Supreme Governor. In normal circumstances, the Supreme Governor should be the monarch where the monarch is an Anglican. But where the monarch is not an Anglican, the monarch should nominate as Supreme Governor someone from the family who is an Anglican. That seems to me to be a perfectly reasonable way forward. It would stop us having a special arrangement for Roman Catholics in this insulting way.

We do not have an arrangement whereby the heir to the Throne can marry a Muslim as long as the Muslim authorities agree that the children are brought up as Anglicans. The Muslim authorities are in exactly the same position in terms of this issue, although I think on very little else, as His Holiness. They are not going to agree to it either. What I would say to all Members of the House is this. It is insulting to the largest church in the United Kingdom—the Catholic Church. It is insulting to isolate Catholics as if there is still something about them today—in 2013.

I want to end with a comment to my noble friend. On Sundays, Anglicans do not pray for the Queen as the Supreme Governor of the Church of England, they pray for the Queen. At exactly the same time, although in larger numbers and with greater enthusiasm, Catholics pray for the Queen. There is no distinction between our prayers. The fact of the supreme governorship does not relate to the way in which subjects pray for their Queen. The only reason I raise this is because on these occasions there is always just a little hark back towards a feeling that there is a position before the Almighty that makes the Church of England special. The Church of England has an important history and its evensong is in many ways one of the finest services produced by any church of any kind. However, let us remember that we live in a pluralist society and that much of this anomaly is something that most people cannot and do not want to understand. To introduce an amendment that would enshrine the very things that historically we have sought not to have in Britain seems to me to be preposterous.

3.30 pm

Lord Luce: My Lords, I support the objective of the amendment moved by the noble Lord, Lord Cormack, although I have reservations about its wording. I should say hastily that I am speaking for myself and not as a former member of the Royal Household. The House may have noticed that earlier there was a small cluster

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of former members of the Royal Household, but we have now widened the gaps between each other.

My view is based on the limited scope of this Bill and the assumption that we are not talking about the establishment of the church or about changing the position of the monarch being the Supreme Governor of the Church of England, and thus the requirement that the Supreme Governor should join in communion with the Church of England. That, to my mind, is not the issue, rather it is much more limited to the proposal in the Bill. At Second Reading, I asked the Minister whether we could seek greater clarity on the requirement that those in the line of succession must be brought up within the Anglican faith. All I am seeking to do is to minimise misunderstandings that otherwise could arise from the passing of this Bill in connection with Clause 2.

There is a disparity between what the then Archbishop of Canterbury, Rowan Williams, said, and what the Archbishop of Westminster said at the time of the Perth agreement in October 2011. Archbishop Rowan Williams said that,

“there needs to be a clear understanding that the heir is brought up in”,

the Church of England environment. The Roman Catholic Archbishop of Westminster said:

“I fully recognise the importance of the position of the established church … in protecting and fostering the role of faith in our society today”.

That is a helpful message, but the two are not clearly in line, and in my view there is something of a lack of clarity in this. Of course, this is something that may never happen in our lifetime, but nevertheless it could happen. It is in order to minimise the risk of misunderstanding that I believe the noble Lord, Lord Cormack, is moving the amendment.

In my Second Reading speech I suggested that the Minister should agree to have some further discussions with the Roman Catholic leadership in this country to see whether we cannot get a clearer understanding, and I would be grateful if, when he comes to respond to the debate, he would let us know if he has anything to report at this stage.

Lord Forsyth of Drumlean: My Lords, I apologise for being unable to be here earlier, as I had a long-standing engagement, and also for not being able to participate in the earlier stages of this Bill. I am afraid that unusually, because I have the highest regard for my noble friend, I do not feel able to support this amendment at all.

I have some history on this matter. I believe that the provisions contained in the 18th century legislation with quite vile language about Roman Catholics should be removed from the statute book. As Secretary of State, I think I described it as the constitution’s grubby little secret. When I first came to this House, I was unwise enough to bring forward a Private Member’s Bill to deal with this issue. I was ambushed at the very first stage by my late and much missed friend, Lord St. John of Fawsley, who by use of procedure, prevented me from even being able to speak to my Bill or to introduce it again for a year. As a result, I realised that this was a much more complex issue which required considerable discussion and was not suitable for Private Members’ Bills.

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It is therefore a great disappointment that this legislation has been rushed through the House of Commons as it has, without proper debate, on a timetable which we normally reserve for Bills concerned with terrorism or some immediate national interest. For the life of me, I do not see why these matters have been dealt with so quickly. In opposing this amendment, for the reasons that my noble friend Lord Deben spelled out so clearly—I will not repeat the arguments—I would like to say as a member of the Church of Scotland, although I worship in the Episcopal Church of Scotland, so I am a kind of hybrid, I find it extraordinary that the opportunity was not taken in this legislation to remove the prohibition on the monarch themselves being a Catholic.

I have a specific question for the Minister to deal with, on which my noble friend Lord Deben touched. As I understand it, the role of the monarch as head of the Church of England is not a canonical role, and therefore there is no reason, as my noble friend said, why the monarch has to be a member of the Church of England. There may be other issues that arise from that, and I appreciate that the example of James VII or James II—depending on your perspective—may not have been an entirely happy one. However, it did not end in tears because he was a Catholic and head of the Church of England; some other issues resulted in it ending in tears.

The Deputy Prime Minister has brought forward this legislation on the basis of extending equality, although it is rather ironic that we should be talking about equality in the context of the monarchy. It seems to me quite extraordinary that we have not been able to take that further step and remove the prohibition on the monarch being a Catholic. In the 18th century, there were very good reasons for having this language; it was about the security of the nation. Indeed, the very Act of Union itself occurred as a deal; the Scots were bailed out from the huge losses which had been created by the Darien scheme, and in return the Protestant succession was secured. That was what it was about. Therefore, to leave on our statute book words which cause great offence to many Catholics and non-Catholics in our country is shocking and it is sad that the Bill does not deal with it.

In support of his amendment, my noble friend Lord Cormack has suggested that some deal would be done with the Vatican. Of course, we have to have regard to our constitutional history but, as my noble friend Lord Deben pointed out, the independence of the monarchy is fundamental to our constitution. Although the Vatican is no longer a foreign power which will encourage the French or anyone else to usurp the Throne—those days are long since past—it would be totally inappropriate to have an amendment of this kind. However, I agree with my noble friend in so far as moving this amendment highlights the anomalous position of this legislation.

I should just make it clear that I would not want to see the Church of England cease to be the established church. My goodness me, secularism is rampant in our country at the moment; this is not the moment for something of that kind and I would not support it. The heir to the Throne has talked about being “Defender of Faiths”, and it is a mistake for the Church of

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England to appear to take a position that has the unfortunate effect of making people believe that it cannot continue to be an established church while removing that discriminatory language from our statute and constitution.

Lord Trefgarne: My Lords, I have some sympathy with the objective of my noble friend Lord Cormack’s amendment, but I have considerable doubt as to whether it will achieve what he seeks.

I rather doubt whether the Vatican would be willing to give the sort of undertaking that my noble friend suggests. It sounds as though that would be very difficult indeed for it. Whether or not our sovereign might be of some different faith, not of the Church of England and perhaps even Roman Catholic, is a wholly different but of course crucial issue. I have tabled subsequent amendments that touch upon that, although I suspect that we have discussed it pretty fully under this amendment. I think that my noble friend’s amendment will not achieve what he desires and I hope, therefore, that he will not press it.

Lord Fellowes: My Lords, I, too, much regret that I was unavoidably prevented from attending Second Reading but I hope that I may none the less speak briefly to this amendment.

First, I support the Bill wholeheartedly. Furthermore, I understand and agree with the motives behind the amendment. Both the Bill and the amendment are timely and necessary. I fear, however, that I cannot support the amendment as drafted. More clarity and public commitment from the Roman Catholic Church on the subject of the upbringing of an heir to the Throne would indeed be most welcome, but I think that that desired outcome would be more likely to be achieved by quiet negotiation than by ultimatum. The amendment has a ring of ultimatum about it, at least to me. For that reason I cannot give it my support. None the less, I hope that we can find a satisfactory form of words that carries perhaps less threat and more promise, both to the Church of England and the Roman Catholic Church.

Lord James of Blackheath: The noble Lords, Lord Forsyth and Lord Deben, have both got very close to being the first Peers in this debate to mention that here we are addressing the concern of whether we can alter the Bill of Rights. Sooner or later, that issue will have to be debated in much more detail than allowed for by today’s agenda.

I have one technical question for the noble Lord, Lord Cormack: does he believe that the papacy is able to commit its successors any more than, as he no doubt believes, one Parliament can commit another?

Lord Stevenson of Balmacara: My Lords, this has been a very good debate and, has just been mentioned, will inform a number of the amendments that we are due to discuss. Maybe we will be able to move a little faster as a result.

The amendment, in the names of the noble Lords, Lord Freeman and Lord Cormack, makes abolition of the Catholic marriage ban conditional on an agreement with the Vatican that children of such marriages should

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be brought up as Anglicans. As for preserving the Protestant succession, the amendment is unnecessary because under the present rules no Catholic will be able to succeed. As we have heard, it seems highly unlikely that the Vatican is in any position to make children of mixed marriages be brought up as Anglicans, should we require it to. In any case, we understand that this is a matter already delegated to the Catholic hierarchy in the UK.

However, as several noble Lords have suggested, this issue raises the question of whether any religious test should be preserved as one of the rules for succession. As we will hear from the noble and learned Lord, that will perhaps be a matter for another time, but I will come back to it in later amendments.

3.45 pm

Lord Wallace of Tankerness: My Lords, I thank my noble friend Lord Cormack for introducing this amendment. It has generated a passionate debate and raised important issues, not least ones also reflected in our Second Reading debate about the upbringing of children should there be a mixed marriage. The noble Lord, Lord Luce, quite properly indicated that this Bill is limited in its scope and does not deal with the established church or the monarch as Supreme Governor. I know the passion with which my noble friend Lord Forsyth takes a view—which I share—on the wording of some 17th century legislation. That wording is offensive, but as the noble Lord recognised from his early attempts with a Private Member’s Bill, these matters are hugely complex and I do not believe that this Bill is the appropriate place to deal with them.

As the noble Lord, Lord Luce, indicated, at Second Reading he and the noble Lord, Lord Janvrin, asked if I would meet representatives of the Catholic Church. I did so earlier this week. I can inform the House that I came away with a clear message that in the instance of mixed marriages the approach of the Roman Catholic Church is a pastoral one. It was considerably stressed to me that the Catholic Church will always look to provide guidance that supports and strengthens the unity of the partnership and the indissolubility of marriage. It is in this context that the Catholic Church expects Catholic spouses sincerely to undertake to do all they can to raise their children within the Catholic Church.

However, where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, it has been drawn to my attention that the Catholic parent does not fall subject to the censure of canon law. The clear signal was that the overriding concern in Catholic pastoral guidance to couples in mixed marriages—it was drawn to my attention that there are many mixed marriages today in England and Wales—is the unity and indissolubility of the marriage. I assure the House that it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith.

It is also important to note the important concept within the Catholic Church of subsidiarity. As a Presbyterian I do not pretend to understand it, but it is one that I have certainly heard associated with the Catholic Church. We perhaps debate the word in another context, but within the organisation of the

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Catholic Church, subsidiarity is an important concept and much decision-making is devolved to a local level, including decisions relating to mixed marriages. Quite simply, the Vatican does not get involved. My noble friend Lord Deben highlighted both the constitutional implications and significance if the amendment moved by my noble friend Lord Cormack were to be carried. It would raise constitutional issues and would put the Pope in a very difficult position, one that I suspect the Vatican does not aspire to have thrust upon it. In its recent letter to Members of your Lordships’ House on this issue, the Church of England stated:

“The present prohibition…is not necessary to support the requirement that the Sovereign join in communion with the Church of England”—

that is, the prohibition on marrying a Catholic—and therefore:

“Its proposed removal is a welcome symbolic and practical measure consistent with respect for the principle of religious liberty”.

The Archbishop of Westminster, as quoted by the noble Lord, Lord Luce, welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic, and recognised the importance of the position of the established church in protecting and fostering the role of faith in our society today.

Lord Forsyth of Drumlean: What was the Government’s motivation in removing the prohibition on the heir to the Throne marrying a Catholic? Was it to enable the heir to the Throne to marry a Catholic, or was it to remove the discrimination against Catholics?

Lord Wallace of Tankerness: My Lords, it was both. It was to allow someone in the line of succession to the Throne to marry a Catholic and to remove that discrimination. I know that the noble Lord’s subsequent question would be, “Why don’t you remove the ultimate discrimination?”. However, as he acknowledged, from his own efforts to do something, this is a much more complex issue. He says that he does not wish to disestablish the Church of England. Many would argue that if we went down that road, it possibly would lead to the disestablishment of the Church of England. There is a proper debate to be had there, but this emphasises that that is not the purpose of this Bill. However, where an opportunity has arisen to remove at least one area of discrimination, it has properly been seized.

My noble friend Lord Deben made the point that, if this genuinely is an issue, it already exists in another context. My noble friend Lady Falkner of Margravine raised the point at Second Reading which my noble friend Lord Deben made about Islam. My noble friend Lady Falkner asked whether the perceived,

“constraints on the children of Catholics being bought up—and the Catholic Church’s perspective on that—would be different if the monarch was married to a Muslim, as is currently permissible? Muslim children are, likewise, expected to be brought up in mixed marriages as Muslims. So the anomaly exists in the case of other faiths, but perhaps not in the case of Catholics”.—[

Official Report

, 14/2/13; col. 805.]

That was the point that my noble friend was making. Therefore, the amendment of my noble friend Lord Cormack seeks to address one problem but does not

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extend to include every faith that currently exists. It is certainly not the Government’s plan that we should do so.

We will obviously return to this issue of establishment and whether the sovereign could be a Catholic in some of the later amendments. However, I readily appreciate the very human concerns. When you are dealing with affairs of state and issues of the constitution, you must remember that you are also talking about two people who want to get married. That is why it is appropriate that there is a pastoral dimension to this and that it is done at a pastoral level. I hope that, with these reassurances, my noble friend will withdraw his amendment.

Lord Cormack: My Lords, I am grateful to my noble and learned friend the Minister for his response, but not entirely convinced. We have had an interesting short debate. Some of the language used by my noble friend Lord Deben was reminiscent of the 18th century pamphlet at its best. He could be a little more careful about his use of the words “insulting” and “preposterous” merely because he does not happen to agree with the arguments advanced.

The fact is that many people in this country are concerned. Parliament has a duty to address this issue. Mentioning a foreign power in legislation is by no means unprecedented. However, I take the point of my noble friend Lord Fellowes; indeed, I made it obliquely myself in my introductory remarks when I said that I was not wedded to the words of the amendment. I wanted to have a debate on the subject. This we have had. I would be glad to talk to my noble friend Lord Fellowes and others before deciding whether to pursue this, which I may well do on Report. The issue deserves mature and thoughtful debate. It is of importance for we do not know how long. There may be no problem in the next century; there may be one within a very few years. One just does not know. However, when we are legislating in good faith for a long time—in spite of the fact that no Parliament can bind its successors; we can repeal whatever we like tomorrow—we have to do our best to make it as clear, precise and right as we possibly can. This is why my noble friend Lord True was wise to introduce his debate. We need to try to anticipate the sort of problems that may exist, if only to answer them and have them answered by Ministers and others before we move on to see the Bill on the statute book, which it assuredly will be before too much longer.

While expressing the hope of discussions with my noble and learned friend the Minister and others before Report stage, and reserving the right to introduce an amendment on Report—certainly not in the same words, but along similar lines—I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5

Tabled by Lord Trefgarne

5: Clause 2, page 1, line 8, leave out subsection (2)

Lord Trefgarne: My Lords, this amendment, together with Amendments 6 to 9, go to the very heart of the issue we have just been discussing. Together they provide

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for a fundamental change in the present prevention which applies to our sovereign being a member of the Roman Catholic faith. This is a huge issue. I do not think it would be right to deal with it rapidly in the course of the swift passage of this legislation. I therefore will not proceed with these amendments.

Amendment 5 not moved.

Amendments 6 to 9 not moved.

Amendment 10

Moved by Lord Trefgarne

10: Clause 2, page 1, line 10, at end insert—

“(6) In the event of a person of the Roman Catholic faith succeeding to the Crown by virtue of subsection (5), the title of Defender of the Faith and the function of Supreme Governor of the Church of England shall pass to a regent qualifying with the provisions of section 3 of the Regency Act 1937.”

Lord Trefgarne: My noble friend Lord Northbrook has attached his name to the amendment. It raises a slightly different issue. It is another way of dealing with the matter touched on by the noble Lord, Lord Cormack, in his Amendment 4. It is a way of dealing with this matter by way of a regency. Your Lordships have considered and discussed this possibility on previous amendments and I ask your Lordships to consider it again now. I beg to move.

Lord Northbrook: My Lords, I support my noble friend Lord Trefgarne in his amendment. I first raised the issue in my speech at Second Reading, so I claim a little credit for the idea. As my noble friend has said, it sidesteps a key problem if the heir is a Catholic and keeps a link between church and Crown.

Lord Forsyth of Drumlean: My Lords, I shall speak briefly to this amendment and pick up a point which my noble and learned friend Lord Wallace made in his response to the previous amendment when, with typical skill, he used something I said as an argument against me. I had said that the issue was too complex to be dealt with by a Private Member’s Bill. I was persuaded by the late Lord St John of Fawsley that this was not a matter suitable for being dealt with by a Private Member’s Bill and was best left to the Government to deal with. It is not really good enough for the Government to say that this is a very complicated area and it would mean having to deal with the whole issue of maintaining an established church and therefore we have gone for half a loaf. In my speech on the previous amendment I asked my noble and learned friend Lord Wallace to explain why it is not possible to devise a basis on which the monarch can remain head of the Church of England but not actually be of the Anglican faith. This amendment, moved by my noble friend Lord Trefgarne and supported by my noble friend Lord Northbrook, is a particular approach.

I do not think it is necessary to create a regency in order to do so. We did not have the opportunity to hear the view of the Church of England in respect of

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the previous amendment. Even if the Government’s position is that they will not do it in this Bill, it is disappointing that they are not able to explain what the options and difficulties are about it. My noble and learned friend did not fall into the trap when I intervened in his speech and asked him what the Government are trying to do here. Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic? I would be horrified if it is the latter. Of course, that is a good thing to do—if two people want to get married they should be able to do so—but I thought that this was part of a wider agenda of ending discrimination against Catholics. We need to understand why the Bill has not provided for that and why the idea contained in the amendment could not provide a way forward.

4 pm

Lord Stevenson of Balmacara: These amendments go to the heart of whether the present Anglican establishment in England can or even should remain in its present form. They raise issues which it would be irresponsible to dismiss out of hand. Therefore, I suggest that all parties come together sooner rather than later to ensure that the subject remains a topic for further parliamentary consideration. That might be by way of using the existing committee structure—perhaps the Constitution Committees in both Houses might wish to take this on—or even through the facility in your Lordships’ House for setting up a committee for this very purpose. It seems to us that the spirit of change, referred to by the noble Lord, Lord Deben, and the points just made by the noble Lord, Lord Forsyth, are too important to be left on the table. They need to be addressed, otherwise they will rancour, come back and hit us in places that we do not necessarily understand at this time.

I sense in the debates that we have had so far a willingness to engage at a level which is not possible within this Bill because of its particular purposes and focus but which would help to create a better understanding at least and possibly an opportunity for a road map for change. It would be important to take that up.

Lord Wallace of Tankerness: My Lords, as my noble friend Lord Trefgarne indicated in moving this amendment, this is one of the key issues raised by this Bill. Certainly, his Amendments 10 and 11 and the consequential ones to the schedules are interesting and were flagged up at Second Reading. They are an interesting way of addressing what has been seen as a dilemma: if the sovereign was to be a Roman Catholic, how could that person also be the Supreme Governor of the Church of England?

When I tried to answer my noble friend Lord Forsyth’s question as to whether the proposal was to allow the heir to the Throne to marry a Roman Catholic or to remove discrimination, I think I said that it was both, and it is. Clause 2 is of symbolic importance because it removes a discrimination which I believe does not have a place in our society today. As I think I also indicated, and as has been accepted across the Chamber,

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these issues with regard to the sovereign being a Roman Catholic go much wider than the person who may ascend to the Throne being married to a Roman Catholic. The Government are committed to the Church of England as the established church in England with the sovereign as its Supreme Governor. I note what the noble Lord, Lord Stevenson, says about a possible further examination. Certainly, the Government have no plans to do so. Indeed, the Government suggesting to Select Committees what they may or may not do probably is not good form. But he has made his proposal and there will be others who will have heard it. It may be that a Select Committee will choose to do that but I do not think that it would be appropriate for the Government to take that initiative.

I now turn to the idea of separation of the roles of sovereign and Supreme Governor.

Lord Maclennan of Rogart: Before my noble and learned friend leaves that point, will he indicate whether the Government are ready to enable such work to be done given the compression of time that we have had in discussing these matters? Would they be prepared to permit the Bill to proceed at a pace which would allow a Select Committee, such as the Constitution Committee, to consider these matters?

Lord Wallace of Tankerness: My Lords, I am afraid that I will have to disappoint my noble friend in my answer. I do not believe that this is the appropriate Bill for taking this forward. This Bill seeks to deliver on three particular issues and I do not believe that that would be appropriate. I do not diminish the importance of the issues. It is very obvious that some people see this Bill as a Trojan horse for disestablishment and some are frightened in the opposite direction. I do not believe that this Bill is appropriate for that. Therefore, I cannot give my noble friend the encouragement or the assurance that he seeks with regard to allowing such a discussion. I do not believe that the noble Lord, Lord Stevenson, was suggesting that it should be done in a timescale that would affect this Bill.

On the idea of separating the roles of sovereign and Supreme Governor of the Church of England, obviously it is self evident that that would represent a very major change to the role of the monarch in relation to the established church and undoubtedly would require extensive consultation. It is a significant diversion from the traditional role of the monarchy over recent centuries. The Government consider that the change in the law effected by Clause 2 is a valuable one but we do not believe that it is necessary for the Bill to go beyond that and to delve into the significant wider issues that this amendment raises.

The proposed amendments also open up a series of extremely difficult questions about the relationship between the sovereign and the Supreme Governor of the Church of England, and indeed whether such an arrangement could support the continued established place of the Church of England. For example, how would the coronation and accession oaths be taken? The oath of accession includes a promise to maintain and preserve the Protestant religion and Presbyterian

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Church Government. Who would take this oath? Presumably it would not be appropriate for a regent who is a Supreme Governor of the Church of England to give any oath in respect of the Church of Scotland, and therefore would not be sovereign to make that statement. That one issue shows the host of different issues that would come up when the issue is examined in more detail.

As I have indicated, the Government have no intention of introducing any change in this matter. Given that both the Catholic Church and the Church of England have been very supportive of the changes that are actually in the Bill, I believe that we have found an appropriate balance through the legislation as drafted. I therefore invite my noble friend to withdraw his amendment.

The Earl of Erroll: Before the Minister sits down, perhaps I could help him on the Presbyterian Church of Scotland. Every year, at the opening of the General Assembly of the Church of Scotland, the monarch promises to defend the Presbyterian Church Government in Scotland—I will not get the words exactly right. I think that she does that in a personal capacity, not as head of the Anglican Church. She promises to defend it, so there is no reason why a Catholic monarch could not still promise to defend the Presbyterian Church Government in Scotland. To confuse that with Presbyterianism in England would be different.

Lord Wallace of Tankerness: I apologise if I did not make myself clear. I did not mean to suggest that it was as Supreme Governor of the Church of England that she made the oath with regard to the Presbyterian Church Government in Scotland. I was in fact suggesting the opposite; it would not be appropriate for someone who was appointed as a regent—a Supreme Governor—to make that oath. I think that that would be wholly inappropriate. It raises the question of whether a monarch who was indeed a member of the Roman Catholic Church would be in a position to make any commitment regarding the maintenance of the Protestant religion and the system of Presbyterian Church Government.

Lord Forsyth of Drumlean:Why?

Lord Wallace of Tankerness: My noble friend Lord Forsyth asks why. I think that it raises some very interesting issues that have not been thought through. This is why I say that we should not go down this road. I do not propose to go down this road; I suggest that there is a host of issues, and that is why we should not go down the road proposed by the amendment.

Lord Trefgarne: My Lords, the problem is that the noble and learned Lord says this opens up greatly different avenues. However, frankly, the Government ought to have thought about these avenues before they brought in the Bill.

Lord Wallace of Tankerness: With all respect to my noble friend, that is the reason why the Government have not gone down this road. The Government have actually sought to do three very clear things: remove the male bias in succession; remove the current prohibition

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on someone in the line of succession marrying a Catholic; and repeal the prohibitions in the Royal Marriages Act 1772 and replace them with others. Those are three very precise points. I made the point that to go wider than that raises the kind of issues I highlighted. That is one reason why the Government have not gone down this road.

Lord Northbrook: My Lords, by ignoring the amendments of the noble Lords, Lord Cormack and Lord Trefgarne, it seems that the Government are just leaving everything to chance, in the case of there being a Catholic heir.

Lord Wallace of Tankerness: This is not leaving it to chance. The law as it stands at the moment is quite clear that a Catholic cannot ascend the throne.

Lord True: My Lords, the problem was articulated at Second Reading, and I do not wish to extend this debate too much. The problem ultimately will be a human problem, as it was in 1936. That human problem, if it arises, will concern a child who is an heir, either the heir presumptive or a child who by some accident becomes the next in line, a popular expectant heir to the throne, who, whether from birth or by proximity to the Catholic faith when being brought up, believes that they cannot take up the duties of a monarch without the support of the church that they love. That might well be the Catholic Church.

The problem with the halfway house that we have before us is that it opens the door to such a crisis without resolving all the complexities that my noble friend quite rightly said lie at the end of that path. That human drama will be played out in the 21st century through all eyes of the media and television as almost a piece of spectacle—it was in 1936. That is the danger that many Peers sought to point out at Second Reading. I could not support the amendment of my noble friend Lord Cormack; equally, I think that the amendment of my noble friend Lord Trefgarne is flawed, because I agree with my noble and learned friend on the Front Bench that there are things that a regent could not undertake.

There is a danger in the lack of clarity inherent in this Bill, for well meaning reasons, opening a door to a place we know not where. Not all discrimination in this matter lies on the Anglican side—I speak as one who lives the most happy of mixed marriages but who is never permitted to go to the altar table to share communion with my wife. Let us go forward with caution. It is not right for the Government so readily to detach the opening of the door by the legitimisation of a marriage from a proper and serious contemplation of the potential consequences if a human drama comes to be played out when an heir believes that they can proceed only with the support of the Catholic faith, whether they professed it previously or profess it at the time when they become heir to the Throne.

Lord Wallace of Tankerness: My Lords, before my noble friend Lord Trefgarne replies, perhaps I may pick up on a point where I do not believe that the argument of my noble friend Lord True holds. Under the law as it stands—and there is no proposal here, nor

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do the Government have any proposals to change the law—the sovereign may not be, nor have been, a Roman Catholic. Therefore, the situation which my noble friend Lord True suggested, where the sovereign comes to the Throne having to agonise as to whether to renounce the Catholic religion, just would not arise, because, having been a Catholic, he or she would not be eligible to ascend to the Throne.

I entirely concur with my noble friend’s opening remarks: these are very much human matters at the end of the day. There is a human dimension to it, and that is why, in response to the earlier debate, I sought to reflect the discussions which I had with representatives of the Bishops’ Conference of England and Wales so that this is looked at at a pastoral, human level, which seeks to reflect the importance of the union of a partnership and the indissolubility of marriage. It is against that background that decisions should be made and advice given with regard to the upbringing of a family. I accept that there is a human dimension to this, but I should perhaps clarify that the dilemma that my noble friend was suggesting cannot occur because the position is that the sovereign must not be, or have been, a member of the Roman Catholic Church.

Lord Forsyth of Drumlean: My Lords, I had not appreciated this until my noble and learned friend said it: he said that not only would a Catholic not be able to ascend to the Throne but that someone who had been a Catholic but had then converted to be an Anglican could not ascend to the Throne. That has nothing whatever to do with the position of being Supreme Governor of the Church of England. That is a simple discrimination against Catholics. My noble and learned friend said, “Oh, the reason that we have made this Bill focus on just these three areas is because the issues are so complex”. It is clear that he will not accept the amendment, and I accept some of his arguments for that—but, in listening to this debate, can he not see that there are a number of issues? The noble Lord, Lord Stevenson, suggested that we should have a Select Committee, or some kind of body to look at these issues, and park the Bill while that is going on. What is the rush here? What is the reason for our needing to rush forward with this legislation at this pace?

Perhaps at the end of the day, it might be concluded that it was impossible to reconcile maintaining an established Church with removing this discrimination against Catholics. However, if the Government say, “Oh well, this is just a Bill that’s dealing with these matters”, bear in mind that this legislation has to be approved by all the other Parliaments around the world. Would they not think it very odd if we came forward with this Bill now and then a short while later came forward with the other bit of it? Or is the proposition that this is just too difficult? If it is too difficult, why on earth did the Government embark on this journey in the first place?

4.15 pm

Lord Cormack: I would like to add a word. There is a real danger that we are treating exceptionally complex matters far too simplistically. The constitution of our country, which is not written, has often been compared to a beautifully constructed watch—take away one

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ostensibly tiny piece of the mechanism and the whole thing falls apart. Some fairly unpleasant things were said about my amendment earlier on, but there we are; that is the rough and tumble of debate. However, I really believe that those of us who are concerned about this issue—coming from slightly different points of view, I accept—are on to something that the Government have not bothered to think through. They have said, “Oh look, this is so complex that we’ll just concentrate on these things”, which is equivalent to saying, “This watch is beautifully constructed; we’ll just look at the hands in the face and forget the bit behind”. There is merit in the interesting suggestion from the noble Lord, Lord Stevenson—if I may have his attention for a moment—or at least in the Minister calling a meeting in his room for people who are concerned, and possibly in going forward to a special committee. This is not really the ideal forum for a detailed discussion of these exceptionally important and complex matters, which reach out we know not where.

Lord Wallace of Tankerness: My Lords, I have already responded to the point from the noble Lord, Lord Stevenson, and indicated that I am not in a position on behalf of the Government to commit to establishing a committee to look at these matters. It is clear that there are committees of this House and indeed of the other place that could do so. Obviously the Government would contribute to any such committee that we had invited to do this, but I do not believe that that is a pathway that is inconsistent—nor did the noble Lord suggest this—with proceeding with the relatively straightforward, although constitutionally important, issues that are in the Bill.

Lord Trefgarne: My Lords, at the end of Second Reading a week or so ago, when the noble and learned Lord, Lord Wallace, moved to refer this Bill to a Committee of the Whole House, I suggested then to your Lordships that it would have been much better considered by a Select Committee of the House to which witnesses could have been called and had their evidence taken—perhaps even a Joint Select Committee involving Members of the other place. However, the Minister refused to agree to that; oh no, we would go to a Committee of the Whole House, as we are now doing.

If ever there was a case of unlooked-for consequences, this Bill is certainly it. There are a number of aspects of this matter that quite clearly the Government have simply not considered or, if they have, they have chosen to disregard. That is really not good enough, and we are going to have to return to this issue at the next stage for sure. In the mean time, I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Clause 2 agreed.

Amendment 11

Moved by Lord Trefgarne

11: After Clause 2, insert the following new Clause—

“Removal of disqualification arising from individual’s religion

(1) A person is not disqualified from succeeding to the Crown or from possessing it as a result of that person not joining in

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communion with the Church of England as by law established; and all provisions to the contrary in the Bill of Rights and the Act of Settlement are accordingly superseded.

(2) Where a person who succeeds to the Crown or possesses it declares to the Privy Council that he or she is not in communion with the Church of England as by law established, the person who is next in line of succession to the Crown and who is in communion with the Church of England shall perform the functions of Supreme Governor of the Church of England in the name of and on behalf of the Sovereign.

(3) The provisions in subsections (3) to (5) of section 3 of the Regency Act 1937 apply to such a person who is Supreme Governor, with the substitution for references to the Regent of references to the Supreme Governor.”

Lord Trefgarne: I do not intend to speak to this amendment at any length. We have covered some of its detail, although by no means all of it, in recent discussions, but I would like to hear what the Minister’s response to it would be. Without wishing to detain your Lordships, therefore, I beg to move.

Lord Wallace of Tankerness: My Lords, the position with regard to this amendment is very similar. It is a different structure for having, as it were, a divergence between the person who is the sovereign and the person who is the Supreme Governor of the Church of England. Some of the difficulties and arguments which were expressed with regard to the regency are also applicable to the slightly different structure proposed in Amendment 11. I am not sure that I can elaborate on that much further as I think that the arguments are very similar.

Lord Trefgarne: I understand what my noble and learned friend is saying. However, the amendment that I now propose does not confine itself to the Roman Catholic faith, or the possibility of the sovereign or the heir to the Throne being Roman Catholic, but deals with all other possible faiths. At the moment, many legal restrictions apply to the Roman Catholic faith in this regard but none applies to Muslims, the Jewish faith or any faith other than the Anglican and Roman Catholic faiths. Therefore, that matter certainly bears additional consideration, but perhaps not today. In the meanwhile, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Clause 3 : Consent of Sovereign required to certain Royal Marriages

Amendment 12

Moved by Lord Lang of Monkton

12: Clause 3, page 1, line 12, leave out “6” and insert “12”

Lord Lang of Monkton: My Lords, from the deep and turbulent waters of Clause 2, we move to the only slightly less troubled waters of Clause 3. This amendment, which stands in my name, also has the support of the noble Lord, Lord Thomas of Swynnerton, who is unavoidably prevented being here today, and of my noble friends Lord Lexden and Lord True.

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This is a simple, modest and practical amendment, which seeks to increase from six to 12 the number of persons in line of succession to the Crown who would be required by the Bill to seek the consent of the monarch before marrying. The existence of that provision in the Bill is to my mind a tacit admission of the potential for turbulence created by Clause 2 and that part of Clause 3 which repeals the Royal Marriages Act 1772, the Bill pitting, as it does, a relaxation over the entry of Catholics into the royal line against the absolute ban on their reaching the Throne. There is a real tension there, which the clause as it stands makes at least some effort to modify.

The 1772 Act had the draconian effect of voiding a marriage that lacked the monarch’s consent and it had become unworkable because of its extent, but it did have the virtue of certainty, which was needed then, as now. King George III’s seven sons between them entered into nine marriages—a case of nine brides for seven brothers. Three of them were in contravention of the recently enacted Royal Marriages Act and were therefore void, thus keeping the line of succession relatively tidy, if nothing else. I wish we could say the same for the new provision, but I fear that it could lead to great untidiness. The only argument that my noble and learned friend could offer in favour of exchanging the open-ended control of the 1772 Act for a list of just six, was that when Queen Victoria was born, she was fifth in line of succession and no sovereign had come to the Throne from further out than that. However, he chose a bad example and I would like to use that example to answer his case.

The remarkable thing about Queen Victoria’s circumstances was not that she started life so far out in the line but that she did not start much further out. After all, King George III had 12 surviving children, seven of them sons, so the succession must have looked pretty secure as they grew up. Of course, only six of them would have been in what one could call the “club of six” under the clause we are now considering. Indeed, half the King’s children would have been outside it, just as a third of Queen Victoria’s children would also have been outside it. I ask the House to consider how this club of six would have worked at that time.

In 1817, two years before Victoria was born, Princess Charlotte, daughter of the Prince of Wales and second in line to the Throne, died tragically in childbirth, along with her baby, who would have been third in line. King George’s sixth son, Prince Augustus Frederick, who would have left the club of six at her birth, would now have rejoined it. At the time, only three of the Prince’s brothers were married within the terms of the Act. They were all middle-aged and had no legitimate children. It suddenly became apparent that the succession was at risk. Within a year, three more of the brothers hurried into marriage, including Prince William, Duke of Clarence and St Andrews, and his younger brother, Prince Edward, Duke of Kent and Strathearn, who was then aged 50.

A year later, in 1819, Prince Edward’s daughter, Victoria, was born and at once become fifth in line to the throne. She would have been a member of the club of six, pushing her uncle, Prince Augustus Frederick,

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back out of the club. Eight months later, Prince Edward died suddenly; his daughter Victoria moved up to fourth in line and Prince Augustus Frederick would again have rejoined the club of six. Six days after that, King George III died, Princess Victoria moved up to third place and her youngest uncle, Prince Adolphus Frederick, who would have left the club of six at the age of 21, rejoined it at the age of 45. Eleven months later he was out of it again as his brother, Prince William, became father to a daughter, Princess Elizabeth. She took third position in line and his niece Victoria moved back down to fourth position. Less than three months after that, the infant Princess Elizabeth tragically died. Those below her, including Victoria, moved back up the line and Prince Adolphus Frederick—not to be confused with his brother Prince Augustus Frederick, still less with his other brother Prince Frederick Augustus—would have been back for the third time in today’s club of six. Fortunately for him, he had married in 1818 during one of his gaps in membership.

Within two years, Princess Victoria’s place in the succession had changed upwards and downwards four times. I recite all this simply to show that the line of succession to the Crown can easily involve an almost random element. The unexpected often happens, as my noble friend Lady Thatcher almost said. The highly improbable can quickly become the near certain. It also shows that the succession can move in both directions, up as well as down, and between late middle-age and infancy. Queen Victoria was 18 when she came to the throne, her predecessor was 64 and her successor was 59. Her circumstances were unlike any other before or afterwards but they demonstrate the unpredictability of the line of succession and therefore the need to provide for that when we legislate on the matter. We cannot predict what future circumstances will be, so we should leave a margin for error.

To my noble and learned friend, who attempts to justify six with the repeated argument that Princess Victoria was fifth in line at her birth, I point out that, in the terms of Clause 3, it is not her birth that is relevant or requires the sovereign’s consent but her marriage. By the time she married and would therefore have become subject to this clause, Victoria was already Queen herself. I venture to suggest that that indicates a bit of a design fault in the clause which might merit some attention.

The choice of Queen Victoria as a case to strengthen the Government’s case is, to say the least, unfortunate. Her example is, at best, irrelevant and it demolishes any rationale the Government have for confining the number in this clause to 6. As for the other explanation, that the choice of six was, as the Deputy Prime Minister admitted, arbitrary and pragmatic, that is not an argument but an apology. At Second Reading, I suggested that we should not think of the line of succession as a straight line of descent but rather in family groupings, and that is particularly so as life expectancy lengthens. All six places covered by this clause could be within the family of one son or daughter of the sovereign, which leaves other sons or daughters exposed in the event of a tragedy befalling the family of the heir apparent. The search for heirs might then need to move outwards, possibly encountering families who, for religious or other reasons, had to be leapfrogged to

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find heirs that fitted. A club of 12 would be more likely to avoid that. One could argue for more but I accept that 12 should be enough to put matters beyond a reasonable doubt, which six does not.

With or without my amendment, where there is a specified limit there will always be the possibility of those in the line of succession going on and off the nominated list like poor Prince Adolphus Frederick and not forgetting Prince Augustus Frederick. However, this amendment would move such comings and goings further away from the immediate line of succession and offer a better chance that the monarch’s immediate family would all be on the list, at least until they had passed the normal marrying age. I chose to table this amendment as it covered the one area of the Bill that could be improved quite easily and with little controversy. It does not frustrate the Bill’s purpose but is simply an amendment of detail. This detail does not, I gather, feature in the Perth agreement: perhaps my noble and learned friend can enlighten us on that. It could probably be quickly accepted by the Commonwealth realms without demur and it would show that this revising Chamber had done its job and not simply been a rubber stamp to a measure agreed over our heads.

It is an important change which addresses the danger of unintended consequences. As it stands, the list of six acknowledges a problem. I believe I have demonstrated that a list of six could be woefully inadequate. The amendment offers greater stability and less uncertainty in a matter where certainty is vital. I beg to move.

4.30 pm

Lord Northbrook: My Lords, my Amendment 13 is in this group. I apologise to my noble friend Lord Lang of Monkton for moving in the opposite direction—whereby the number of persons in line to the Throne would be decreased, rather than increased—particularly after his wonderful history lesson.

I want to reduce the impact of Clause 3 on Clause 2, and I worry that the current number of six is likely to be in contravention of the European Convention on Human Rights, which, under Article 12, provides for the freedom of marriage. Amendment 14, which states that,

“Any provision of the common law requiring any person to seek the consent of Her Majesty before marrying is abolished”,

has been brought to my attention by the eminent lawyer, Graham McBain, with whom the Minister is familiar through contact with the noble Lord, Lord Carlile. This point was referred to by my noble friend Lord Carlile at Second Reading. Even before the Royal Marriages Act 1772, the sovereign had a right, and exercised it, not under statute but under the common law, to prevent marriages of other members of the Royal Family—for example, to prevent the Queen Mother from remarrying. This right, as I understand it, still applies, whereby under the common law the sovereign could enforce his or her consent to the marriages of brothers, sisters, cousins and so on. Therefore, as the noble Lord, Lord Carlile, said at Second Reading, this right should be abolished. That is the purport of my amendment.

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Lord Elton: My Lords, I have tabled Amendment 13A. I apologise for tabling it so late that it had to be added to the supplementary list, which is always a bad thing to do and is particularly disgraceful for an ex-Minister who knows the strain that it puts on the Bill team. I have apologised to them already. Although my amendment is in this group, it does not belong there, and I therefore believe that I am allowed to unbundle it. I shall do so and move it briefly after this debate.

Lord Lexden: My Lords, I strongly support the amendment that my noble friend Lord Lang has explained so fully and convincingly, leaving very little further to be said. Today, we expect families to be of modest size and assume that the future will closely resemble the present. That is surely an arrogant and misconceived assumption. Historically, the monarch’s immediate family has often been extremely large in number, and the Bill ought to provide for a recurrence of a substantial number in their immediate family by extending to 12 the members of the Royal Family for whose marriages royal approval will be required.

How hard it is in any family to secure the triumph of good behaviour. It has been said of George III’s abundant offspring that that they inspired the nation about as much as a procession of Banquo’s descendants inspired Macbeth. The strength of the Crown in those days rested wholly on the character of King George III himself. We should also remember the fragility and impermanence of the world’s order. Reference was tellingly made by my noble friend Lord Lang to the position of Queen Victoria, who was fifth in line of succession at the time of her birth—a position that then oscillated considerably, as my noble friend amusingly told us. However, Queen Victoria very nearly did not inherit. A boy named Hook, out shooting sparrows, sent a shower of pellets through the window of the house in Sidmouth where the future Queen and Empress had been taken shortly after her birth. She narrowly escaped some of the pellets, tearing the sleeve of her nightgown. If the boy Hook had, by terrible mischance, removed Queen Victoria, that game of musical chairs over the succession that my noble friend described would have begun all over again.

I do not believe that six is enough. The number should be extended to 12, although, at the same time—turning to my noble friend Lord Northbrook’s amendment—a strong argument can be made for removing the need for approval altogether. The worldly Lord Melbourne put it in conversation with Queen Victoria. Referring to her disreputable uncles, he said that,

“though the Marriage Act may have been a very good thing in many ways, still it sent them, like so many wild beasts, into society, making love wherever they went and then saying they were very sorry, but they could not marry because their father would not give permission”.

Nevertheless, I do not favour the complete disappearance of the monarchical duty. Unsuitable marriages need to be prevented and 12 is the right number for the monarch’s approval.

Lord Lyell: My Lords, perhaps I may chuck a very small pebble into this debate. My noble friend Lord Lang gave the most marvellous dissertation, but I

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would advise your Lordships to take care to skip along to the Library to take a glance at either Burke’s or Debrett’s Peerage. Your Lordships should look, above all, at the consanguinity and the very long chance of the arm of the blood relationship. Your Lordships may not be aware that Queen Elizabeth the Queen Mother was the ninth child of the Earl of Strathmore. The eighth child was the grandfather of the current Earl of Strathmore. In that bloodline, it shows that there is a very long list of candidates, which might even rival that of my noble friend Lord Lang. I do not think that six is enough and perhaps one day, my noble and learned friend will be able to explain to me what I seem to remember from my earlier studies of Scottish law, when women come into the law of succession, which may have been changed. Would my noble and learned friend, let alone my noble friend Lord Lang, please take note that six is not enough?

Lord Forsyth of Drumlean: My Lords, briefly, I support my noble friend Lord Lang, who has proposed a perfectly sensible amendment. I am sure that my noble and learned friend will be able to accept it if for no other reason than that his right honourable friend the Deputy Prime Minister has indicated that the choice of six was purely arbitrary. My noble friend has made a strong and powerful case and what struck me most about his speech was the sheer serendipity of this matter. If this Bill had been in place—as someone in the other place pointed out during the somewhat truncated debate on the matter—the Kaiser would have ended up sharing the throne of the United Kingdom. These changes are unpredictable; the only difference I have with my noble friend Lord Lang is why he chose 12, not six.

I hope that my noble and learned friend Lord Wallace of Tankerness will not resort to the usual trick of saying, “Well, on the one hand, there is an amendment that says it should be fewer and on the other there is an amendment that says it should be more; I think it’s probably right that we got it somewhere in between”. I hope I have not taken his speech from him, because that would be a disgraceful response to what was a very well argued case, which demolished the basis on which the Government had reached their conclusion. If, however, my noble and learned friend finds that he cannot accept the number 12, it makes the case even stronger for having a special committee to look at these matters and consider them more carefully, so that we can get a number which actually makes sense.

Lord Trefgarne: My Lords, I would like to make a short intervention at this point; it is a serious point. We are not approving marriages: we are saying whether the people who marry can remain in line to the Throne. There are some categories of marriage that we might consider would make it inappropriate for the person concerned to remain in line to the Throne. Others have mentioned the single-sex marriage legislation that is going through Parliament. It might well be that a future sovereign would feel disinclined to approve a marriage of that kind, lawful though it might otherwise

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be. I put that serious proposition to the Minister. Like my noble friend Lord Lang, I favour an increase in the proposed number.

Baroness Hayter of Kentish Town: My Lords, I start by thanking the noble Lord, Lord Lang, for his historical insight. As a mere contemporary historian, I think more in months than decades. However, I note that in the period I have studied, families have become rather smaller; having two or four children seems to be slightly more normal now. If it is true that the Deputy Prime Minister took six as a purely arbitrary figure, perhaps it is connected to his belief that 600 is an appropriate number for MPs in the House along the way. However, I am sure that that was not the case.

The purpose of the need for consent is to recognise the interests of the Crown, as advised by the Privy Council, and to acknowledge the public interest in the question of the potential consort to our head of state. We do not imagine that any likely heir would seek marriage with the head of state of another country with whom perhaps we have less than friendly relations, but clearly there is a public interest, and an interest to the body politic, as well as to the lovebirds concerned, in such a matter. Therefore, there is reason to consider the matter of such an intended marriage in this way, with the consent of the monarch, because we know that that means that those wider considerations will be brought to bear—I assume with due advice from Ministers. At Second Reading, my noble friend Lord Stevenson asked about the sort of advice that might be proffered in cases where consent might not be given. The Minister might like to suggest some of those scenarios, if thought has been given to them.

There is no indication that any such need for consent—perhaps the case of the late Princess Margaret disproves this—has ever caused a problem. I refer to the need for consent rather than consent being given. Of course, I am sure that if there were such cases in the past, they were kept fairly discreet.

Despite the concerns of the noble Lord, Lord Lang, the figure of six appears fairly sensible. It is one more than has ever been needed, but not so large that those whose chances of succession frankly are tiny need to take the time of the monarch and his or her advisers by requiring their consent. We look forward to any further comments from the Minister.

The Earl of Erroll: My Lords, the noble Baroness, Lady Hayter, pointed out that families tend to be smaller, but we live longer. For instance, the reigning monarch is about to become a great-grandmother. Taking an average of two to four children, which is three, when there are three children in the first generation and three sets of three children in the second generation, we have already reached our figure of 12. The next generation will go beyond 12, yet we are still looking at the first line. It would be only too easy for a disaster to happen to one line, so the noble Baroness proved the case that six is too few, and we should forget about longevity.

Lord True: My Lords, my name is on the amendment but all the arguments were made in a compelling speech by my noble friend. The remarks of my noble

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friend Lord Forsyth were also conclusive. Perhaps the Minister will consider the following: once the child for whom we are rushing out this legislation is born, how will the Deputy Prime Minister explain to one of the daughters of the Duke of York that she will have to seek permission but her sister will not?

4.45 pm

Lord Wallace of Tankerness: My Lords, I thank my noble friend Lord Lang for this amendment, and not least for the way in which he moved it. Although it was entertaining in many respects, I fully recognise his points. I am not being disparaging—I enjoyed his speech. It was a very good speech and his points were interesting. It is important to point out that none of the people who were in and out actually ascended the Throne. I take his point, which is a pertinent one. Reference has been made on more than one occasion—in another place, too—to the issue of Princess Victoria, as she was known when she was born, being fifth in line to the Throne. There has not been a monarch since the 1772 Act who has been any further out at birth.

Perhaps my mind was working along similar lines to that of my noble friend because I also asked whether it is worth considering when the provision actually bites—which, of course, is at the point of marriage. Since the 1772 Act came on to the statute book, the person who was furthest away from the Throne at the time of consent to a marriage being sought and given was, indeed, around the same time as my noble friend was talking about: King William IV was third in line to the Throne when he married and when he sought and was given consent for his marriage under the 1772 Act. So, in the 240 years since the Act was passed, William IV has been the furthest away from the Throne at the time of his marriage. Again, I am not pretending that there is perfection in this, and I do not believe that a Select Committee could attain perfection in this either. The proposal for six therefore still allows a considerable amount of leeway—which is probably not the right word, but it is the most appropriate word that comes to mind at the moment.

It is important to remind ourselves that a balance needs to be found between mitigating against catastrophic but remote hypothetical events of a line being wiped out and the risk of impinging unnecessarily upon the lives of those who are distant from the Throne. Clearly, my noble friend Lord Lang would prefer to give greater weight to the former; my noble friend Lord Northbrook gives greater weight to the other end of the spectrum. I will not found my argument on that. As three is the farthest away from the Throne at the time of marriage, I believe that six is reasonable. This is bearing in mind that, on the other side of the coin, it can impinge unnecessarily upon the lives of those who are that much more distant from the Throne.

Lord Forsyth of Drumlean: My Lords, what representations have the Government had from anyone about their lives being impinged unnecessarily in this matter?

Lord Wallace of Tankerness: We have not had the representations that one would expect to receive. I suspect that under the present law there are people who, understandably, do not know that, as a descendant

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of King George II, they are expected to get consent from the sovereign if they wish to marry. Indeed, we seek in this Bill to address the issue of those who have, as it were, unwittingly married.

The other important point perhaps addresses the point made by my noble friend about the European Convention on Human Rights. There are two issues here. First, the European Court of Human Rights has generally been very reluctant to engage in issues which go to the heart of a nation’s constitution and who should be their head of state. Secondly, unlike the 1772 Act, which made a marriage void if the consent of the Sovereign was not forthcoming, this does nothing so significant. It simply removes the person from the line of succession and the marriage will still be valid. It means only that the person who had not received consent would not take their place in the line of succession.

My noble friend Lord Lang asked where the number six arose from. Ahead of the Perth agreement my right honourable friend the Prime Minister wrote to each realm Government proposing changes to the law of succession principally with regard to the removal of male bias and the bar on the heir marrying a Catholic. At that point the realm Governments were also made aware of the issues surrounding the Royal Marriages Act and the view of this Government that it was outdated. Subsequent discussions with the realm Governments were led by New Zealand which concluded that it was in the public interest and reasonable and proportionate for those who are genuinely close to the Throne to seek consent to marry. To avoid the same problems presented by the Royal Marriages Act in attaching a monarchical consent requirement to the descendants of a specific monarch—at Second Reading I think that someone suggested that we could make it the descendants of George VI rather than George II; that was thought to store up problems for the future—the number six was proposed and agreed. My right honourable friend the Prime Minister then wrote to each of the realm Prime Ministers to confirm their consent to this provision.

I apologise that I was unable to respond to my noble friend Lord Trefgarne at Second Reading when he asked whether consent had ever actually been refused under the 1772 Act. So far as the Government are aware, there has been no instance when the sovereign’s consent to a royal marriage has been refused. My noble friend Lord Northbrook asked in relation to Amendment 14 whether the common law still applies to monarchical consent in cases such as the remarriage of a dowager queen. There is a good argument that the 1772 Act replaced all common law provisions on royal consent to marriages, but it also could be argued that because the 1772 Act applies to the descendants of George II, the common law requirement might conceivably still apply to members of the Royal Family who are not descendants of George II, for example in the remarriage of a dowager queen or a prince consort. But these instances would not affect the line of succession and it is important to recognise that what we are doing here relates only to that. The Bill is concerned with people who may become the sovereign, not with members of the wider Royal Family. It has a specific purpose.

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As I say, no number will be perfect, but if one considers that, in the 240 years since the 1772 Act went on to the statute book, the furthest away in line from the Throne at the time when consent for marriage was sought was three; we are allowing for three more. I believe that the figure is a rational one and I would invite my noble friend to withdraw his amendment.

Lord Lang of Monkton: My Lords, I know that my noble and learned friend has a job to do, and that is to get this Bill through intact. I have no doubt that those are the orders he has been given and that the word “Resist” is printed on every page of his brief. The fact remains, however, that he must have heard the almost unanimous voices in this Chamber expressing their support for an expansion of the number from six. My noble friend Lord Northbrook offered an alternative of either four or zero. I would live with zero, but only if the provisions that still require the sovereign to be a member of the Church of England were withdrawn. That would remove the tension that this Bill otherwise builds into the royal succession; that is, between those who are allowed to marry Catholics and those who cannot inherit the Throne unless they are members of the Church of England.

My noble friends Lord Lexden, Lord Lyell, Lord Forsyth and Lord True gave some fine additional historical examples of the sort of problem that can arise in these circumstances. My noble friend Lord Lexden mentioned in particular the history of the gun pellets through the window at Sidmouth and that house in the rainstorm during which Prince Edward contracted an illness from which he died a week later, thus precipitating Princess Victoria up the line. There was another incident, I believe, when a pony and trap bearing the princess panicked and sped off, and she very nearly died. In answer to the question put by my noble friend Lord Lexden, if she had died, my belief is that Prince Ernest Augustus, the Duke of Cumberland and Teviotdale, would have inherited the Throne. He subsequently went on to become the King of Hanover where male primogeniture still predominated, when King George IV, I suppose it would have been, could not have inherited that Throne when it became vacant.

My noble and learned friend said some very kind things about what I have proposed and the arguments I advanced, but then proceeded to reject them without going further than talking about “arbitrary” and “pragmatic”. If I heard him correctly, he said that none of the historical characters I mentioned had reached the Throne. Queen Victoria reached the Throne, and he has not risen to that point.

Lord Wallace of Tankerness: My Lords—

Lord Lang of Monkton: Perhaps I may finish my argument before he denounces or deals with it. Queen Victoria would then have had to give consent to herself before she could have married Prince Albert. My noble and learned friend will argue, “Ah, but she would have been guided by Ministers”. Lord Melbourne was a pussycat who doted on Queen Victoria and he

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would not have said no. He had enough problems already with Lady Caroline Lamb. I shall give way to my noble and learned friend.

Lord Wallace of Tankerness: I apologise if my noble friend misunderstood me; I said that no one whom he mentioned, who had gone into the list of six, come out of the list and then gone back into it, had actually gone on to inherit the Throne. That was my point. Of course, Queen Victoria as Princess Victoria inherited the Throne, but I think that the idea of the sovereign giving consent to him or herself is one that has possibly arisen on other cases too. I cannot immediately think of what they were, but that is not even an anomaly; one cannot give consent to oneself.

Lord Lang of Monkton: If I burned the night oil I might be able to find an example. What my noble friend says simply underlines the fact that he did not answer the point about Queen Victoria having to give consent to her own marriage. That must be a fault in the Bill, and I ask him to consider it further before we reach Report.

My noble and learned friend concluded by saying that no number is perfect. I agree, but six is demonstrably imperfect. So much of this Bill has been shown to be ill considered and imperfect, creating anomalies and potential for long-term difficulties of a very considerable nature. When we legislate in a Bill of this kind, we are legislating not just for decades, but for centuries, and so many points have been made today that require further thought. I will withdraw the amendment, but I will consider whether I should bring it forward again on Report. I hope that my noble and learned friend will give very serious thought to what most people in this House—and, I believe, in the other place as well—consider to be an ongoing problem. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendment 13 not moved.

Amendment 13A

Moved by Lord Elton

13A: Clause 3, page 1, line 20, leave out “from the marriage”

Lord Elton: My Lords, my attention was drawn to the subject of my amendment by my interest in the apparent haste in which the Bill was introduced in the other place and spirited through it in such a short time, since when our Select Committee commented on that and the Government have changed the pace of the legislation. My anxiety about this is reawakened by the resolute rejection by my noble and learned friend of even the best argued, most cogent and simple cases that have been put to him. I begin to wonder what it is that makes it so important not to change any part of the Bill.

When I was preparing for this debate, I thought that I would see whether the Bill had been amended already. I was surprised to find that it had in the House of Commons. The words which my amendment

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seeks to delete from line 20 are the words “from the marriage”. Until Committee on the Floor of the House of Commons took place, the subsection read:

“The effect of a person’s failure to comply with subsection (1) is that the person and the person’s descendants are disqualified from succeeding to the Crown”.

One would think that that was perfectly straightforward. These people are the people who are brought into the Bill for consideration by subsection (4), which is the subsection abolishing the provisions in the 1772 Act, and subsections (1) and (2) then proceed to substitute other provisions for a smaller number of people—we have just been debating what number.

As far as I can see, the effect of adding to the words “the person’s descendants” the words “from the marriage” would be to eliminate from the provisions of this clause the illegitimate progeny of a number of people. Therefore, when I looked in the House of Commons to look at the Minister’s arguments in favour of it, I found that in total, the whole of her argument was:

“Clause 3 is, as a Member put it earlier, one of the more arcane provisions in the Bill. The Royal Marriages Act 1772 currently requires, subject to some very limited exceptions, the descendants of George II to seek the consent of the monarch before marrying”.

So it did, but, as I have demonstrated, subsection (4) deals with that. We are now looking at those who remain, the descendants of the six—or 12 or four, whatever we finally put in—who have or have not got the consent of the monarch to marry. That, she said,

“probably affects hundreds of people”.

They must be a prolific bunch if there are going to be hundreds of them, or else we are talking about somebody else. I find that quite extraordinary. She then said that,

“we do not think that such a sweeping provision continues to serve a useful purpose today”.—[

Official Report

, Commons, 22/1/13; col. 273.]

Actually, I do not think that relates to the insertion of those words at all; one has to look for a different reason.

5 pm

It may be that what struck the draftsmen rather late in the day, too late for Second Reading, was that if a person who had had to apply for consent from Her Majesty to marry married without it, and then divorced or was widowed and then married again and got consent, those children would be legitimised whereas the others would not. Some explanation is required because of the confusing nature of the explanation we have already had.

The second issue, which again has come to the front of my mind because of the way in which the Bill has been handled this afternoon, is to seek the mechanism by which the realms and territories come into conformity with what we finally do, because that appears to be the timetable that we are marching to. Can my noble and learned friend tell us the intended date for the actual bringing into effect of this Bill, because that is the deadline, I presume? Is it so set in stone that in fact we cannot alter a jot or tittle of what is before us? Obviously not, because it has been done in the House of Commons already, so can my noble and learned friend tell us what was the mechanism by which that became acceptable and did not delay the Bill so long that we could not tolerate it, and why this same

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procedure cannot be used with the amendments that we are dealing with now and, more particularly, to which we shall return on Report? I beg to move.

Lord Wallace of Tankerness: My Lords, I thank my noble friend Lord Elton for his amendment, which gives me a welcome opportunity to explain why the amendment that he is seeking to delete was inserted in Committee in the House of Commons.

The effect of the Bill as originally presented, as indeed would be the effect of my noble friend’s amendment, would be to disqualify all descendants from any marriage of a person when a marriage of that person was not consented to. For example—and in fact the other way round from what my noble friend suggested—if a person in the line of succession married with consent and had children, their spouse died and they remarried without consent and had children, the children of the first marriage, which had been consented to, could be disqualified.

The intention of subsection (4) is to disqualify from the line of succession any royal descendants from a marriage not approved by the sovereign. It would go too far also to disqualify descendants from a previous marriage for which consent had been obtained. For these reasons, the amendment to include the words “from the marriage” was tabled and accepted in another place. That is entirely consistent with the agreement that was reached with the other realms and removes a possible ambiguity. The other realms were fully informed of this drafting change before it was proposed.

We will come later to an amendment in the name of my noble friend Lord Trefgarne that relates to the bringing into effect of the Bill. There is no date set. I do not want to pre-empt that amendment and that discussion, but if my noble friend Lord Elton looks at Clause 5, “Commencement and short title”, he will see that provision is made for it to come into force,

“on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint”.

The purpose of that is so these measures can all come in together on the same date and, I think, at the same time, in the 16 different realms.

Some realms are dealing with this in different ways. Some, such as New Zealand and Canada, will legislate to ensure that the changes take effect in their country. I believe that the Bill was brought into the New Zealand Parliament last week. Other realms, such as Papua New Guinea and Jamaica, have found that they do not need to legislate. The intention is that when all realms have done what is necessary regarding their arrangements, the measures will be brought into effect at the same time. There is no date set.

It has been said that the Bill was rushed through the other place. As I have said on more than one occasion, the Bill did not even take up the time allocated to it in the other place, so I am not sure what could have been done if more time was allocated. It is a simple fact that the time was not taken up.