Succession to the Crown Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 13th March 2013 Lords Chamber

[The Lord Bishop of Guildford]

My Lords, my contribution to the debate on the amendment in the name of my good friend the noble Lord, Lord Cormack, will be somewhat technical, because I speak as one who has been much involved in the official Anglican-Roman Catholic dialogue since 1974. From time to time the Roman Catholic position on the children of so-called mixed marriages has arisen, and has been discussed in some detail, including the work of a special commission on that subject. I also declare an interest as a patron of the Association of Interchurch Families, and I have some modest understanding of both Anglican and Roman Catholic canon law.

The Government, through the Minister and in other ways, have very fairly, in my considered judgment, set out accurately the Roman Catholic position. We are also helped by the Archbishop of Westminster’s statement in this respect. According to Roman Catholic canon law, giving permission for a so-called mixed marriage is not a Vatican matter but one for what is called the local Ordinary: that is, the local bishop.

At the risk of a little canonical history, I must draw your Lordships’ attention to three documents and practice. In the old rules of the Roman Catholic Church on this subject, in the shape of the Code of Canon Law of 1917, the position was rigid and, I would say, harsh. This is no longer the case. The present code of 1983 speaks of “permission”, not “dispensation”. The old code also required the non-Catholic party in a marriage to promise that the children would be brought up as Roman Catholics. No such promise is required today. The Roman Catholic partner is asked to declare that they will do all in their power to ensure that any children are brought up as Roman Catholics, yet no sanction is applied to the canon, whereas the old code made the bishop’s dispensation for a mixed marriage dependent on the bishop’s moral certainty about the Catholic upbringing of the children. This is not the case now.

I will also touch briefly on practice in a more pragmatic way. Permissions for mixed marriages have been given even where it was foreseen that the promise could not be fulfilled in whole or in part. In making these points, I rely not only on my own past discussions of these questions over many years with officials, bishops, theologians and canonists of the Roman Catholic Church but on the authoritative interpretation of present Roman Catholic canon law offered in a magisterial commentary of no less that 1,952 pages published in 2000 by the Canon Law Society of America. It is the standard textbook in the English-speaking world.

Interestingly, on the question of the upbringing of children in these circumstances, the Roman Catholic canon lawyers quote the official Vatican ecumenical directory of 1993, which clearly indicates that the promise may not be expected to be completely fulfilled, or fulfilled at all, in every case. It states that a Roman Catholic partner can ecumenically fulfil their obligations as a faithful Catholic, short of insisting on the Roman Catholic formation of the children, because the unity of the marriage is more important. The Vatican document, quoted by the canon lawyers, speaks of the Catholic partner as,

“playing an active part in contributing to the Christian atmosphere of the home; doing all that is possible by word and example to enable the other members of the family to appreciate the specific values of the Catholic tradition; taking whatever steps are necessary to be informed about his own faith so as to be able to explain and discuss it with them”,

and–—this is the important bit ecumenically—

“praying with the family for the grace of Christian unity as the Lord wills it”.

In my judgment, this officially bears out the Government’s assurance that the Roman Catholic rules are not a block to the smooth functioning of the proposed succession rules.

I acknowledge that we are all conscious of the importance of avoiding all ambiguity for the future. I think that that ambiguity prompted a number of the amendments that we will debate today. Whether an assurance is given in the Bill, or whether it can be given now by the Minister or at a further stage of the Bill’s proceedings, I am sure that your Lordships’ House would wish all such possible ambiguity to be avoided for the future in the matter of the royal succession.

[Lord Marks of Henley-on-Thames]

My Lords, I oppose my noble friend’s amendment. I fully understand the Government’s decision not to use the Bill to remove the disqualification of a Catholic becoming the sovereign. However, I and others believe that the question should be revisited at some stage in the not too distant future because it is discriminatory and unnecessary. While I understand the arguments put by the noble Baroness, Lady Flather, that the Catholic Church needs further reformation in places, they do not justify a discriminatory provision. I say that even in the context of the established church, for the reasons so eloquently advanced by the noble Lord, Lord Deben, at earlier stages of the Bill.

It is my suggestion that the principle that we should adopt is that the discrimination involved in providing that the sovereign must be an Anglican should be restricted to the absolute minimum. That is why, on principle, I oppose the amendment. But quite apart from the principle, my noble friend’s amendment, and, I suggest, anything like it, would be quite unworkable. The present position is that marriage to a Catholic imposes a disqualification on an heir succeeding to the Crown. That is clear and simple. Clause 2 removes that disqualification entirely. Marriage to a Catholic does not disqualify anyone from succeeding to the Crown. An heir or a monarch can marry a Catholic without losing his right to the succession or to the Crown. That is clear and simple, again. But my noble friend’s amendment would import a proviso into that clear and simple proposal. There would be no disqualification, provided that the statutory requirement that any child of such a marriage is brought up as an Anglican was maintained.

The right reverend Prelate the Bishop of Guildford explained that the statutory or canonical requirement is very much weaker in principle and in practice than my noble friend’s amendment suggests. Furthermore, the amendment poses another problem: how would it be determined that such a requirement, if indeed it were established, was being maintained? Who would decide whether that requirement was being maintained? When, at what point in time, would the requirement need to be maintained, and when would it cease to be maintained? Furthermore, what exactly is meant by being brought up as an Anglican? By what process would a disqualification be imposed on someone in line of succession to the Throne if it were felt that the proviso was not being fulfilled and a given child was ceasing to be brought up as an Anglican? To take an extreme example, what if the child of the heir to the Throne and his or her Catholic spouse, having been brought up as an Anglican, chose to espouse Buddhism while at school?

The problems are endless. I appreciate that my noble friend who moved the amendment did not suggest that it was this wording or nothing, but when you look for an alternative wording, the concepts are so fluid that they necessarily import an uncertainty and ambiguity that would be thoroughly undesirable. For that reason, I suggest that the Bill should remain unamended.

[Lord Fellowes]

My Lords, I find myself in something of a dilemma in speaking briefly to support this amendment. I support both the amendment as presently worded and the measures behind it. I still believe that the sooner that we have greater clarity and more explicit commitment from the Roman Catholic Church as to its determination to respect the rule governing the upbringing of the heir to the Throne, the better. That said, were this amendment to be pressed and passed it might well raise the spectre of the reopening of negotiations with the other 15 Governments of Her Majesty’s realms, and that I believe to be undesirable.

I prefer to regard this as a constructive and helpful probing amendment which makes explicit what is at present implicit in the Bill. As such, it sends the right message even if withdrawn. If it is not withdrawn and comes to a vote, I will support it, with some misgivings.