My Lords, I thank my noble and learned friend and all those who have contributed to this short debate. I fully accept the comments made on subsection (3) of the new clause proposed by my amendment.
As I said at the outset, I do intend to press this matter, although I remain troubled even after what my noble and learned friend has said. I make it clear to him that, although I accept his argument that a marriage is a man and a woman and natural-born child thereof as a matter of common law, my concern arises that, as the law may evolve, that understanding may be challenged. I hoped and thought that I had made that clear to your Lordships. Once same-sex marriage becomes part of the settled life of our kingdom, the law will inevitably evolve in response to that reality. A birth of this kind would not be open to a monarch who was in a same-sex marriage. The question would therefore arise about whether such a monarch could have a legitimate heir of the body.
This may seem fanciful to some; it may seem long in the future. However, I believe that Parliament should reflect on the points made in this debate—I was grateful to hear my noble and learned friend say that he would do so—including on the very important point raised by my noble friend Lord Jopling.
The position as I understand it as a layman is that there are certain defences against a potential claim. One is the common law, which may or may not evolve and which may or may not be challenged in the European courts. I hear what my noble and learned friend said, although I have heard that said about many other things which have come to be challenged in the European courts. Furthermore, as I said, the position may not be challenged absolutely on the question at the moment of succession; it could be a matter that arises within the Royal Family. A right is established, and then a right of family and right of property, and then, by accident, that person at a later stage becomes the heir to the Throne. I remain a little concerned as to whether that is a defence.
I heard what my noble and learned friend said about the Human Fertilisation and Embryology Act. I was extremely grateful for the assurances that he gave and the promise to look at it further. The Crown to my mind is something sui generis; the law of the Crown is something separate. It seems to me, as a humble layman construing that reference to dignity and titles of honour, that that was not intended to refer to the Crown.
Therefore, the question potentially lies open and I submit with respect to your Lordships that, at some stage in the future, the matter should be closed. I do not intend to press my amendment, but I shall watch with interest what my noble friend Lord Elton may do at a later stage. However, I hope that, at some point, any scintilla of uncertainty—and I believe that there is uncertainty—will be removed. I beg leave to withdraw the amendment.