My Lords, I came to Second Reading with one major concern in my mind. By Committee I had two and now I have three. Perhaps I should stop coming to these debates because my list will only grow. It leads me to wonder whether we are here with unreasonable haste on something that should not have great haste: namely, an important and challenging constitutional issue.
We all know that there will be a happy event around midsummer this year. I hope that we are not being overinfluenced by that, because it is not the gender of the unborn baby that should guide us at this moment but the continuity of the lady on the Throne, whom we should not seek to embarrass or put in any predicament that could be adverse to the continuity into the future of her glorious 60 years. It is possible that in time, having made a full recovery now, she will exceed her mother’s years—and may she reign for all of those years, too. In that case, what is the haste that we are looking at? We have had many instances in our history when the succession has fallen on an individual who has been born long before they came to the throne. Whatever happens in June or July this year, we do not need to make any commitment.
By the way, I can assure the House emphatically that the Duchess of Cambridge did not intend to use the “d” word and say that she was going to have a daughter. It is a very important point. In my earlier career I was the recipient of a great deal of training in
lip-reading. It is one of the few things at which I can claim to be an expert, so I ask noble Lords not to mock me. I have watched the five-second clip of the incident many times. The Duchess never had her tongue out of the roof of her mouth. That enabled her to say the “d” very emphatically. From there she could have gone either to an “au” sound for “daughter”, a “u” for “duke”—but she would not use twee language and say, “I will give it to my duke”—or to an “o” sound to say that she would give it to her dog. She brought herself up on the spot because she realised how hurtful that would be to the kindly donor of the little dog. She had to change direction, and in order to avoid one brick she stubbed her toe on another. Unless the Deputy Prime Minister has plans to so overhaul our constitution that we have a dog on the throne, I cannot see that there is anything here about which we should be concerned. The more we look at constitutional issues, the more it appears that Mr Clegg may have misidentified them and that he is in fact Mr Baldrick Clegg, creator of some very cunning plans.
As I said, I have three major concerns. The first is the one that I began with: namely, that we are putting the Crown in an impossible position. We expect to receive a delegation of the prerogative of consent, which I do not believe the Crown is entitled to delegate to us. Secondly, because of those factors, we should look very closely at the issues of entrenchment and the laws that are being changed. We have heard that one Parliament cannot bind another, but this occurs frequently and in this case it is emphatically there. The third factor is that without any doubt the Bill, in particular Clause 4, virtually wipes out the Act of Settlement with Scotland and renders unnecessary a referendum. If this Bill were passed, Scotland would float off towards the Arctic and a very cold economic future. We should be very concerned not to create these appalling outcomes.
The matter of entrenchment is something that we need to think about very hard. When my noble friend Lord Marks and I had our dialogue in the debate at Second Reading, we were misleading each other and were both under a very big misapprehension. We were talking about alterations to the declaration of rights. In the half hour the Minister was kind enough to give me last week to discuss this, he and his team made the same mistake. The declaration of rights is not the issue here; it is the Bill of Rights. We are confusing them because of the interregnum. There was no monarch at the time. Therefore, there was no way that there could be a Bill leading to an Act, as happens at the moment. There was a declaration of the complaints of the citizens of this country, which was answered by a Bill that eventually became an Act. The Bill of Rights that was presented to William and Mary repeated word for word the declaration of rights. However, it ended at the word “accordingly”, whereupon Joe Browne, the Clerk of the Parliaments, signed his name. A space was left for William to sign, but in fact he signed a separate piece of vellum that was stitched into the Bill. This was perhaps the first instance in England of a political stitch-up.
The document sets out the suggested oaths that could be sworn by future monarchs. However, they are only suggestions and not part of the Bill. As such, my noble friend Lord Marks was wrong, and the Minister
remains wrong, because the alterations to the oaths that occurred in the past do not constitute a precedent by which one can alter the Bill; one cannot. I will read two phrases that sum up how far the entrenchment goes. First, the two Houses of Parliament should,
“with royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this Kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly … to the same in all times to come”.
There is not much wiggle room there.
Towards the end, the document states that the provisions are,
“enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever”.
That is what we are asking to pass back to Her Majesty, with the request that she should forgo her coronation oath by altering something that was put into the laws of this land for ever and is, I submit, incapable of being changed. I return to my objection on Second Reading. We do not have the authority to accept delegation of the prerogative to this House, and any noble Lord who voted for it would be in breach of their oath on joining your Lordships’ House. I have raised this with many Members on these Benches. No one will give me an answer. They all say: “I’m sure it’s all right but I don’t know why”. I want to know why. I cannot vote for this and I suggest that no noble Lord should vote for it unless we are assured that we are not forcing Her Majesty into an impossible predicament by so doing.
The situation is very straightforward. We have a constitutional monarchy that is committed, first, by its commitment to the oaths of proclamation. There is a very different wording for England and for Scotland, whereby it is much tougher for Scotland. Then we have the coronation oaths, which bind the Crown to abide by what is in effect the entrenched law of the land, which we are now proposing significantly to change. The legal bounds of the Crown’s authority of governance are breached if the Crown’s constitutional limitation is exceeded. This defines the point at which a constitutionally limited monarchy has a duty arising from the commands of the law and constitution to refuse assent to a measure. If a measure is demonstrated to require removal of the constitutional law defining the duty to enforce, it is a breach of that duty, and constitutionally must be disallowed. We in this House can have no authority to pass a measure that collides headlong with the existing rules of our constitution. The limitations of the Crown would need to be breached to remove those duties, and this is an impossible and intolerable situation to place the Crown within.
In allowing the Bill, we would violate principles emanating from these enactments, which limit the Crown and the constraints imposed by the oath of office. At that moment, we would place the Crown in breach of its solemn and sworn duty, a duty undertaken as a reign-long obligation by Her Majesty. We cannot do that. Furthermore, we can hold no authority whatever to seek to do it.
I want to hear the answers to these points. I am very happy at what this Bill tries to achieve and would oppose none of it, but I am wholly opposed to the
process by which we seek to do it. The advice that we have had on our legal position is undercooked, and I want to know a great deal more.