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.
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 these 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
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.
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 meant 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.
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.