My Lords, I thank my noble friends Lord True and Lord Elton for bringing forward these amendments. As my noble friend Lord True said, he brought forward a very similar amendment in Committee and it is important that he has given us an opportunity to debate these issues again. Following on from the Committee stage, I assure my noble friend and the House that I have given this matter thought. It is an important matter. When the phrase “heirs of the body” was incorporated into the Act of Settlement no one could conceivably—possibly—have anticipated the kind of advances that we have seen in the past 50 years, which raise these kind of issues, particularly with regard to human fertilisation and embryology.
As the noble Baroness, Lady Hayter, said, the laws governing succession to the Crown require that the descendant be the natural-born child of a husband and wife. As I indicated in Committee and, indeed, as I said to my noble friend Lord True in the letter from which he quoted:
“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”.—[Official Report, 28/2/13; col. 1217.]
My noble friend Lord Elton raised the important point about Section 48(7) of the Human Fertilisation and Embryology Act 2008 concerning England, Wales and Northern Ireland, which has the effect that nothing in the sections concerning parenthood in cases of artificial reproduction,
“affects the succession to any dignity or title … or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.
Although I acknowledge that the Crown is not expressly mentioned, it is the Government’s view—we have given this considerable thought, and the phrase “the lesser must include the greater” has already been used—that if titles are not affected by this then, a fortiori, neither is the Crown. Therefore, we do not believe that there is a need for this amendment.
The Government also consider it unnecessary to define marriage as is set out in subsection (1) of the proposed new clause under this amendment, as only a natural-born child of a husband and wife can succeed to the Throne. We believe that that is clear as a matter of common law, as I think my noble friend Lord True acknowledged. I do not think that my noble friend referred to this in moving his amendment, but my noble friend Lord Trefgarne did pick up on proposed new subsection (3), on which I was going to reflect, because I think my noble friend Lord True said that the last thing that he wanted to do was engender controversy. I fear that this could become quite a controversial matter if Parliament is asked to pass a resolution on whether proposed new subsections (1) and (2) would apply, but it may be that he was not particularly pressing that leg of his amendment.
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My noble friend also mentioned, as he did in Committee, the issue of a court challenge being brought concerning the meaning of “heirs of the body” in the Act of Settlement, and he inquired whether we were certain that this term in the Act of Settlement would not be widened by the courts. I think perhaps he had in mind a case brought in the domestic courts on the possible application of Section 3 of the Human Rights Act as an aid to interpret the legislation. A claim based on constructive interpretation of the Act of Settlement using Section 3 of the Human Rights Act takes us back to the issue of whether any convention rights would indeed be engaged in these situations.
I reassure both my noble friend and the House that, as the Explanatory Notes to the Bill make clear, it is the Government’s view that the right to succeed to the Crown does not fall within any of the convention rights, not being a property right, a family right or a civil right. Indeed, there is some elaboration on that point in the Explanatory Notes. Rather, it is a public right to the office of head of state and if, as the Government believe, the convention rights are not engaged, the Government also believe that the court would not adopt a constructive interpretation using Section 3 of the Human Rights Act 1998 so as to include a person who is conceived using a donor.
As far as a claim at the European Court of Human Rights is concerned, we do not believe that convention rights are engaged. In any event, we believe that it is clear from the case law of the European Court of Human Rights that decisions on a state’s constitutional arrangements, such as succession to the Throne, are a matter for the state and not for that court.
My noble friend Lord Jopling raised an important point born of his experience as a distinguished Member for Westmoreland, if I remember correctly. I say to him and my noble friends Lord True and Lord Elton that of course these are important issues and I will consider them again. I particularly want to consider the point raised by my noble friend Lord Jopling. I will write to him and others who have contributed to this debate because these points are important.