26th February 2013

This was largely a repeat of the Commons discussions but without the smidgeon of republicanism that was voiced there from Labour back benches. As might be expected, there was in the Lords more concern about the possible implications for peerage descent than changing to gender neutral primogeniture for royal succession. At the outset, the minister, Lord Wallace of Tankerness, uttered dire – for the Lords – warnings that the House should not seek to meddle in any way with a package so painstakingly assembled with the agreement of the fifteen Commonwealth realms also having the UK monarch as head of state.

A shared concern between the two Houses focused on whether permitting heirs to marry Catholics risked collision with church establishment in England. Would the children of such ‘mixed’ marriages have to be brought up as Catholics? The government was unable, as before, to offer cast iron assurances in the case of an issue over which it had no control except to reiterate that no children brought up as Catholics could succeed. In practice, it seems that the Catholic church itself is not in a position to enforce its wishes and the language of its relevant canon is less than definitive on the point.

In a way, the concern over the upbringing of the children of ‘mixed’ marriages is a proxy for perplexity about whether the centuries-old ban on Catholic sovereigns should remain. If the only impediment is an alleged incompatibility with the sovereign’s position as Supreme Governor of the Church of England, then modern sympathies with religious equality (which we do not yet have) – as opposed to religious freedom (which we do have) – are set at odds with the interests of one particular denomination. Does this entail disestablishment or are there ways around the difficulty? The opposition spokesman, Lord Stevenson of Balmacara, outlined some possible approaches, one of which could relieve the sovereign of compulsory membership of the Church of England but leave that Church able to remain as a national church in England. As a Catholic, Lord Deben (better known as John Selwyn Gummer), deplored continued Catholic exclusion and may be expected to table amendments for the bill’s later stages from 28 February much on the lines perhaps of those urged by a fellow Catholic, Jacob Rees-Mogg, in the Commons.

The government will no doubt resist resort to the bill for any larger purposes. It will point out that such changes would entail consulting the other fifteen realms all over again and that, in any case, it has no intention of altering the status of the Church of England. The government will get its way more likely than not. On the other hand, removing only one of the Catholic disqualifications continues to draw attention to the ones that remain not only for Catholics but also for everyone else not ‘in communion with’ the Church of England. In much the same way, hereditary peers’ concern about changing peerage gender rules draws attention to the anomaly that titles may still be inherited and some of their bearers become members of the legislature in that capacity.

As tentatively suggested by the Commons Political and Constitutional Reform Committee in December 2011*, has the moment come for Parliament to take time in one of its committees to think further about the form of church establishment in England? The government’s insistence that no change may be contemplated unless on the initiative of the Church is, on one interpretation, a rather cruel way of putting the onus on that body alone when wider public interests are at stake. Perhaps the minister will not be able to prevent the remaining Lords proceedings from 28 February offering clues on current Parliamentary thinking – that is, if their Lordships and Ladyships care to look at all beyond the immediate and limited religious provisions of the bill.

* ‘Rules of Royal Succession’, 11^th Report, Session 2010-12, paragraph 14.

Written by Bob Morris, formerly Home Office Under Secretary responsible for Constitutional Affairs. Leader of the Unit’s work on Church and State and also expert on FoI.