EQUALITY (TITLES) BILL
Opinion & Response - Part One
Sponsored by the elected
hereditary peer Lord Lucas (12th Baron Lucas and 8th Baron Dingwall), The Equality (Titles) Bill is a private
member’s bill that has been introduced to:
"make provision for the succession of female heirs to hereditary titles; for husbands and civil partners of those receiving honours to be allowed to use equivalent honorary titles to those available to wives; and for connected purposes".
The Bill was introduced into the
House of Lords on 14 May 2013 and passed Second Reading on 25 October 2013. The
Bill is now set to enter the Committee stage (the date of which has yet to be
scheduled), where it will undergo a line by line examination before the Committee
of the Whole House.
In summary, the Bill deals with two
issues:
1.
Female
succession to hereditary peerages and baronetcies
2.
The
conferral of titles on the husbands and same-sex married partners of titled
persons.
For many interested parties, the
first issue can be subdivided into two similar but separate issues:
1
(a): Female succession to hereditary peerages
and baronetcies to prevent sex discrimination.
1 (b): Female succession to hereditary peerages and baronetcies to
prevent the extinction
of peerages and baronetcies due to lack of male heirs.
The
Equality (Titles) Bill is clearly well-intentioned, and its proponents, undoubtedly
inspired by the Succession to the Crown
Act 2013 (which, once/if it comes into effect, will change the law of
succession to the British throne from male-preference primogeniture to
gender-neutral absolute primogeniture), were clearly motivated by laudable principles
of fairness and equality. Such motivation is admirable, but it does nothing to
alter the fact that The Equality (Titles)
Bill is fundamentally unsound and suffers from poor drafting and a failure
to comprehend the complexity of the baronetage, the peerage and peerage law.
INCORRECT
DEFINITIONS:
The following terms are used incorrectly
in the Bill and, in three cases, in the Bill’s subtitle:
1.
Civil
Partners / Civil Partnerships:
The Bill
refers to “husbands and civil partners”. This is incorrect. “Civil partners”
are not married and, as explained in this paper, for legal reasons the issue of
hereditary titles only arises for married partners. The Bill should refer to
“husbands and same-sex married partners”.
2.
Courtesy
Titles:
The
drafters of the Bill do not appear to be able to distinguish between courtesy
titles and the legal title borne by the wife of a peer. Although not a peeress
in her own right, the wife of a peer is a peeress who shares a life estate in
her husband’s dignity. She bears a legal title – it is not held by courtesy.
3.
Honorary
Titles:
As
explained in point 2 above, the titles borne by wives of peers are neither
honorary nor courtesy titles.
4.
Hereditary
Titles:
The
drafters have failed to restrictively define “hereditary titles” in “S. 11 Interpretation” in order to
exclude titles such as those borne by hereditary office bearers.
5.
Peerage
of Ireland:
Some
consideration should be given to whether the Peerage of Ireland should be
included in the main body of the Bill. The Peerage of Ireland appears only in “S. 11 Interpretation”, but reference is
made elsewhere in the Bill to the peerages of England, Scotland, Great Britain
and the United Kingdom.
UNINTENDED
CONSEQUENCES:
S.7 (3): “Where an incumbent holds more than one hereditary peerage or hereditary
title, the provisions of this Act shall apply separately to each such peerage
or title.”
As currently phrased, S. 7 (3)
could be read to imply that a peer in possession of more than one peerage, for
example a peer who possesses a dukedom and an earldom, could pass his dukedom to
his son and his earldom to his daughter (or vice-versa) simply by choosing to
petition the Lord Chancellor to alter the succession for one but not the other.
This could potentially lead to a proliferation of titles. I assume that this is
not intended.
SUCCESSION
TO THE CROWN AND THE HUMAN RIGHTS ACT:
As an aside, it is worth stating
that comparisons between the succession to the Crown and succession to hereditary
peerages are unhelpful. The Crown does not follow the rules of peerage
succession law (most peerages are guided by agnatic primogeniture to the
exclusion of females) – if it did, we would not have a Queen on the throne.
More importantly, with only a very small number of hereditary peers remaining
in Parliament, the hereditary peerage has ceased to play any significant role
in national life.
Today, unlike succession to the
Crown, succession to hereditary peerages (and certainly to baronetcies) is a
matter that is really only of relevance to directly involved individuals in the
families concerned. This reality further
underscores the fact that, unlike the Crown, hereditary peerages should not be
treated as matters of public law – it is time to accept that hereditary
peerages and baronetcies belong solely to the world of private law. This must
be our starting point.
We also must not fall into the
trap of accepting or assuming the inevitability of the current system of hereditary
titles falling foul of The Human Rights
Act on the grounds of sex discrimination. Challengers would first need to
demonstrate that the inheritance of a titular dignity is a human right. Hereditary
peerages and baronetcies are dignities granted by the Crown. As they carry no value, are not tied to the
tenure of land, convey no office or position (save for a miniscule number of
exceptions), and cannot be compared with the rights to vote, marry or have an
education, it is far from certain whether the courts would agree that they fall
under human rights legislation.
UNRESOLVED
ISSUES OF EQUALITY:
For a Bill that is clearly motivated by a desire to
achieve equality and justice, a number of significant issues remain unresolved:
1. Why
should it be up to an incumbent to decide whether or not a peerage title will
descend by gender-neutral primogeniture?
2. Where
is the equality for the daughter or female heir of an incumbent who, for
whatever reason, chooses not to change the succession in favour of females?
3. Where
is the justice for the long-standing male heir who is suddenly dispossessed by
the incumbent?
4. Where
is the equality for the sister whose younger brother has already, perhaps even
recently, succeeded to the peerage?
5. Why
should the “oldest surviving child legitimately born” inherit in preference to
an older surviving illegitimate child?
6. Why
should age be a factor in deciding succession rights?
7. Why
should an adopted child be excluded from the succession altogether?
8. Will
the child of a hereditary peer in a same-sex marriage inherit the peerage if
his/her mother was a surrogate mother?
PART
ONE:
HEREDITARY
PEERAGES and PRIVATE LAW:
In England, hereditary peerages
have been held to be inalienable incorporeal hereditaments (intangible
property) the descents of which are governed exclusively by the words of
limitation set out in their original grants (usually by Letters Patent). [Viscountess Rhondda Claim [1922] 2 AC 339]. Only
an Act of Parliament can amend the Letters Patent governing succession to a
peerage.
As hereditary peerages and baronetcies
are items of private law, it seems wholly unjust that the rightful heirs should
be deprived of their lawful inheritance, as stipulated in the terms of the
original grants.
Peerages and baronetcies may not
be willed at the wish of an incumbent and, save for cases of inevitable
extinction, it would be extremely unwise and unfair for Parliament to revisit
historic grants to alter the long-established legal terms of limitation, when
to do so would deprive current and future lawful heirs of their rights of
inheritance. There is certainly a case to be made for altering the succession
to peerages and baronetcies that are on the verge of extinction due to a lack
of heirs – but they must be the exception to the rule. In no other instances
should Parliament revisit historic grants of titles.
As a nation Britain is at the
cutting edge of social progress; we appreciate the need to modernise and evolve
-- but we are also proud of our institutions and our traditions. This country
has a proud legal and cultural heritage, and our citizens still believe in
justice, decency and fair play. To dispossess lawful heirs of their rightful
inheritance by changing the established terms of a legal grant – one that we
must assume was agreed to by the original recipient – flies firmly in the face
of those beliefs.
Of course, there can be little
argument that future grants of hereditary peerages or baronetcies should be
guided by the principle of gender neutrality; but to alter historic grants
would not only challenge their original legal intention, it would also deprive
their rightful living and future heirs of their lawful inheritance. Parliament
should respect our historic tradition of succession to hereditary peerages and baronetcies
and abide by the wording of each grant, save for those titles that are on the
verge of extinction.
Enforcing universal gender equality
on existing hereditary peerages and baronetcies would inevitably lead to the
disastrous family feuds that have afflicted the Spanish nobility in recent
years.
SPANISH
LAW ENFORCING GENDER NEUTRAL SUCCESSION TO TITLES (2006):
In 2006, although Spain’s highest courts had rejected the
claim of 20 Spanish women that the male primogeniture succession laws for
Spanish titles ran contrary to equality laws, the Government of Spain
introduced gender-neutral succession. Spain’s Law 33/2006 stipulates that "men and women
have an equal right of succession to grandeeship titles of nobility in Spain,
and no person may be given preference in the normal order of succession for
reasons of gender".
The abolition of male
primogeniture has split the Spanish nobility, in many cases pitting brother
against sister, father against daughter, wife against husband and even family
branches against each another. The law
has caused a group of nobles to split from their traditional representative
body, the Deputation of Grandees, in
order to form a separate organisation, the Spanish Nobles’ Association, which
they hope will be able to better advocate for their case and challenge the new law.
Quoted
in an English-language newspaper, the Spanish Count of Bilbao stated: “There is a split.
Some of the oldest families are involved…. I don't think it is fair that my
son, who grew up expecting the title, should not get it."
The disastrous mess we see in
Spain arose from the decision to apply absolute primogeniture to existing
titles that already had clear lines of succession with identifiable heirs. The
turmoil could have been avoided if the law had been drafted to apply
exclusively to future grants of noble titles (in other words, to grants made
after the date on which the law came into effect). I’m afraid that many British
families will also be split and torn apart if similar ill-considered blanket legislation
is enacted here.
PREVENTION
OF EXTINCTION OF PEERAGES:
Reading the debate around The Equality (Titles) Bill in Hansard, it is clear that many of the
peers in favour of this Bill are motivated in large part by concern over the
extinction of their own peerages due to the lack of a male heir. Their concern
is real and one can easily see why this concern would lead them to support this
legislation, despite its wider, and less desirable, consequences.
Peers and
baronets have every reason to be proud of their heritage and their ancestors’ contributions
to national life, and it can be distressing for a baronet or peeress to think
that a long-held title (perhaps several centuries old) will be extinguished
upon his/her death.
I think the majority of the members of both Houses
of Parliament would be able to understand the worry of baronets, peers and
peeresses who face this unpleasant situation. I strongly believe that
Parliament should deal with the issue of extinction – however, the remedy is
not found in this Bill, nor does it lie with the universal introduction of
absolute primogeniture into the succession to hereditary peerages and baronetcies.
Titles that are on the verge of extinction due to an
absence of males in the line of succession can and should be altered by
Parliament, either by special remainder to the existing Letters Patent (as for
the Marlborough dukedom in 1706) or, alternatively, by granting a new title of
the same name but with a new remainder (as for the Fife dukedom in 1900). In
both cases, I would expect that the new remainder would be based upon absolute
primogeniture.
Given the lack of new hereditary peerages and baronetcies,
this remedy for individual titles on the verge of extinction would strengthen
the hereditary peerage and baronetage as a whole (which would otherwise face
the real risk of withering into insignificance). Extinctions can be prevented without opening
up the entire system of hereditary peerages and baronetcies to absolute
primogeniture.
PETITION
BY INCUMBENT TO ALTER SUCCESSION:
A bizarre novelty of this Bill, which distinguishes
it from the recent Spanish legislation, is the proposal to permit an incumbent,
at his/her discretion, to petition the Lord Chancellor to approve his/her
request to alter the succession to a title. Such an arrangement seems very odd
and has the potential to be monumentally destructive.
A peer may disclaim his peerage for himself under
the Peerage Act, 1963 but he does not
have the power to abolish it or disclaim it for his legal heirs and successors.
A peerage may not be willed and it is not for a peer to do with as he/she
wishes. An incumbent should not have the power to decide succession issues at
his/her own whim – particularly when the issue is as fundamental as gender
rights.
Whilst it is clear that this Bill would bring about
the same family feuds and splits that have so terribly afflicted the Spanish
nobility in recent years, by giving the incumbent the discretionary power to
decide whether or not to petition the Lord Chancellor to change the succession
to his/her peerage, this Bill could potentially have even more destructive
consequences.
The drafters of the Bill appear to assume that all
incumbents are chivalrous and decent, and that they naturally have the best
interests of their heirs (and titles) at heart. Obviously this is unrealistic.
It does not take a dramatist to conjure up all sorts of scenarios in which
families are torn apart by bitterness, jealousy and envy.
Human nature being
what it is, some heirs would conspire against their “competitor” and engage in
reputation sabotage in order to court the incumbent’s affections. An incumbent
could also easily play one heir off against another, dangling the peerage in
front of their noses in order to have his/her bidding done and advance his/her
own personal agenda.
The proposal advocated in this section of the Bill
would lead to unfairness, inequality, lack of consistency, bitterness and
crippling uncertainty for heirs and potential heirs.
Even in a very unexciting family situation, one can
easily see how unfair and unsatisfactory the effects of this Bill would be. Imagine
the scenario of two cousins, an earl and a duke, each of whom has 2 children, a
daughter (both aged 55) and a son (both aged 52). On the day the new law is enacted, the earl chooses
to petition the Lord Chancellor to alter the succession to his earldom in
favour of his daughter. The earl gets
his wish. The duke does nothing (he may have disapproved of changing the
succession or he may simply have intended to deal with the matter at a later
date, both situations are equally relevant). Tragically, both the duke and the
earl die in a hunting accident a few months later. The earl’s daughter succeeds
him and the duke’s son succeeds him.
At least two people seem to have been unjustly
treated in this scenario. Has the duke’s daughter received fair and equal
treatment? Her cousin is now a peeress simply because their fathers acted
differently. Has the earl’s son received
fair and equal treatment? After all, the earl’s son has been waiting, and preparing,
to take over from his father for over 50 years. He has been trained in estate
management but has no estate to manage and no other career option.
If we add the earl’s illegitimate 57 year old son to
the scenario, what then? Can this Bill really claim to stand for equality when
it restricts the succession to the “oldest surviving legitimate child”? Would Parliamentarians not agree that, in the
21st century, favouring legitimacy over illegitimacy is as
discriminatory as favouring men over women?
Similarly, is age discrimination not as relevant as sex discrimination?
Why shouldn’t younger children succeed?
What about equality for adopted children? Currently
adopted children may not inherit a peerage but, following a Royal Warrant of
2004, they have been able to use a courtesy title. Should we regard this as a
step on the road to true equality for adopted children? If not, why not? What
is Parliament implying about adopted children by denying them the same
inheritance rights as biological children? In the scenario above, for example, if
the earl also had an adopted daughter of 59 years of age, is it fair, on the
grounds of equality, that she should be prevented from succeeding to his peerage?
What are the implications of this legislation for
the children of a hereditary peer or baronet in a same-sex marriage? The child
may be adopted or may be born to a surrogate mother. Will a distinction be
drawn between the two? Would either be eligible to succeed? If not, why not? If
we believe in true equality, surely we would draw no distinction.
I raise these unresolved questions of equality not
to offer any solution but to point out that “equality” is a complicated concept
that is open to numerous interpretations. Imposing one contemporary notion of
equality on to an historic institution can lead to unintended consequences of a
far more unfair, unjust and unequal nature than is currently the case. (TO BE CONTINUED in PART TWO)
