Response to Gender and Same-Sex Equality Legislation for the Peerage, Baronetage and Knightage -- Opinion Piece PART ONE

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 21^st 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)