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DEBATE: PEERAGE SUCCESSION: MAY 2008 -

In the 2008 Newsletter, the Editor raised the subject of whether there should be a move to bring the rules for succession to peerages up to date in the light of anti-discrimination legislation in other fields.  Further contributions to this debate from your Lordships would be welcomed and should be sent to editor@byng.net. They will be added below.

Viscount Torrington:Your Lordships will recall that there have been a number of initiatives over recent years to bring peerage succession more into line with modern thinking on ‘gender equality’. The idea that peerages should be inherited by the eldest child of whatever sex has, however, been opposed as a step too far but there is a feeling that bringing the entire peerage into line with the rules governing peerages of Scotland , i.e. inheritance by the eldest daughter where no immediate male heir exists, might find fairly general favour. We understand that the Baronets are actively pursuing initiatives in this area and the Association would be interested to hear the views of your Lordships on this matter. If there ever is to be any change by legislation, it would seem best that it be initiated while there are still hereditary peers in Parliament. (1.04.08)

The Earl of Cromer: I just wanted to lend my support to the initiative to bring peerage succession into line with 'gender equality' particularly inheritance by the eldest daughter should no son exist. Although it does not affect me or my heirs directly, I do think this is a very good idea and should be encouraged. (9.04.08).

Lord Coleraine: I think this is a case where sleeping dogs are best left to lie. The Scottish rules seem to me to fall awkwardly between Scilla and Charybdis. Whoever proposed them would be seen as attempting to extend the rights of peerage beyond those existing before 1999, solely in order to reduce the number of peerages becoming extinct. This could open the sluice gates to a more politically correct gender-blind primogeniture, the principal of succession through the female line having been accepted. (11.04.98)

 Lord Gisborough: So many peerages have died out for lack of female heirs including the Royal Family.   I would support inheritance of the title through the female, though one problem lies in the title of the husband.  Does he become Lord xx with the wife being the one eligible to sit in the Lords?  Then would extinct titles be able to be rehabilitated through female lines in the past? (12.04.08)

Mr Julian Fellowes: I was present at the debate on Lord Diamond's bill for female succession. The fatal flaw in the wording was that the measure should be voluntary. He, in his innocence, thought this would make it more acceptable but the peers instinctively shied away from the concept of voluntary exclusion or inclusion, since that is directly contrary to the manner and morality of peerage selection, and necessarily so.

The point is there is a fundamental truth underpinning all this which those loyal to the Crown ignore at their peril. When the Government ruled in the early 60s that there were to be no further hereditary peerages outside the Royal Family, thereby eradicating hereditary status as a legitimate ambition for men and women to strive for, they effectively condemned to death the hereditary selection of the Head of State. I am told that the King of Spain refused to abide by such a suggestion ten years later for this very reason. Any Court must employ hereditary peers and peeresses in the great offices, since they have no option but to support the hereditary principle. By having no hereditary peerages given more recently than the 1960s (bar a couple of Mrs. Thatcher's experiments), it inevitably means that the Court would and must drift further and further away from the centre of public life, until, by the time a century had passed, it would have no connection whatever to the great careers and the great events of the previous hundred years. But if they go against this and enrol lifers in their service, in order to get new men and women into Court positions, then they are snubbing and undermining the hereditary principle that has brought the Monarch to the Throne and inevitably suggesting that it is flawed as a method of selection. In other words, it is Catch 22 - as it was intended to be.

In the end, this will have to be addressed. The present situation where the British social pyramid is still topped by a locked group into which nobody may now aspire to enter, will (and should, actually) ultimately prove unacceptable. At the same time, Mr. Blair and Co. have successfully created a new, extremely rich and powerful, aristocracy that is unconnected to the old one and therefore without obligation to either tradition, generally, or the Crown. In former days, this separation didn't happen because the new, successful people of every generation were absorbed into the system which was thereby envigorated and strengthened. Obviously, the present weakening of the whole hereditary structure was a deliberate ploy by the Monarchy's enemies but what is hard to understand is why the friends of the Palace in government went along with it when, in the end, it must carry the seeds of the Throne's destruction. Until that sad day comes, however, the extension of hereditary rights to women can only create a sense of an aristocracy renewing itself, even though it will not really be doing so. There will be a good deal of publicity and the various women who are then promoted will give a new face to the proceedings, This can do nothing but good, and will buy time for those who do not want to see the system die.

However, the danger is more immediate than this. Your correspondents do not appear to have grasped the simple fact that the exclusion of women is very possibly already illegal. No one has yet tested it in the European courts but when somebody does, as they will, there is every likelihood that the judges there will rule it contrary to European law. This now states specifically that while people may be discriminated against because of the order of their birth (i.e. an older sibling may still inherit over a younger without breaking the law) or because of skills or physical capacity, it is now against the law to discriminate on the basis of sex, where both sexes may perform whatever function is required. Discriminating against women solely on the basis of their sex where a privilege is concerned is also illegal. The European judges are notoriously tricky when dealing with England and, were this to be challenged and were they to rule against the old custom, they would almost certainly implement primogeniture irresepective of sex, which already exists in law in Europe, with the new succession to the Swedish Throne among other examples. These include the Spanish aristocracy, where the government has attempted to implement the principle. This change imposed on England would cause havoc in a great many families, not least because of measures that have been put in place to avoid inheritance tax, and might result in many cases in the splitting of the title from the land. Nor would any English court allow the time or space to appeal.

Even before that test, the recent Harman Equality Bill and the proposed change to the Royal succession, the latter creating the legal concept of primogeniture irrespective of sex, as well as female primogenture among sisters, neither of which previously existed in English law, will almost certainly result in a situation where the practice of passing over women is outside the law in any context, and leave the peerage open to attack.

The other danger is that, at any moment, the government might respond to the inequality of the peerage laws by abolishing the peerage altogether as a legal rank, which many of them would love to do. This was the measure adopted by the French government in a similar philosophical climate. For a time, the dukes remained legal when the others were not but that was so clearly illogical that they too were swept away in the end. Now, in France, whatever people may call each other in private, no legal document, no appointment, no passport, nothing, may bear a title. The Labour government may well use the excuse of inequality between the sexes to do this, and it would be hard to get a politician of any party to argue against it.

That said, there is a chance that if, while there are still hereditary peers in Parliament to push it through, a measure is taken which gives some rights to women, then the Powers may leave it alone. If the plan is to give women succession rights after their brothers, even those who would prefer to see primogeniture irrespective of sex would be forced to concede it was an improvement. No distant, male heir would have a realistic expectation of winning a case against a female heiress more closely related to the present peer and nobody else would have an interest in taking it to Court. There is always this issue of the disappointed expectations, but, quite frankly, when it comes to that in a few cases or the whole thing going under, surely it could not be sensible to argue for the latter. As it is, these days not many peers have the disicipline of their ancestors in leaving their possessions to the cousin or nephew who inherits their title instead of to their own daughters. The result is that family after family finds that their rank and their possessions are travelling down two different lines of descent, something the old Scottish/Spanish custom avoided.

People will tell you how difficult it would be and how it would involve re-creating all the peerages from new. I have often heard this but it is completely untrue. When the Duke of Marlborough was needed for another campaign and his only son was dead, a bill was introduced into Parliament granting a new remainder allowing a unique form of female descent to the existing title, without recreating it. The dukedom still dates from its first creation, despite the later, altered, female-friendly remainder. One also hears how hard it would be to trace the new, correct descent, given that women will have been passed over in the past who would, under the new legislation, now have rights. Again the solution is simple. Once the decision is made, all peers would be confirmed in their titles at such-and-such a date (which would more sensibly be one that has already passed), then, using the Marlborough Bill as a basis, all remainders would be made to apply to the descendants male and female, from those men included in the first remainder of the title (i.e. usually in descent from the first holder but there are exceptions), the difference being that the female siblings would be included in the computation. After that, the College of Arms would work out the line of inheritance but, crucially, making the present holder the starting point. So his daughters and then sisters and nieces would come into play, and his female first cousins as well as his male ones, etc., all the women taking second place to their brothers. Once each title had an order of five successors, that would take care of it in 99% of cases. And that would be that.

The only thing I personally would add to this would be to invite applications for succession to any titles which have become extinct since the day of Her Majesty's accession or D-Day or something (i.e. some specific date and not too far back) as this would (a) take the hysteria out of the process, and (b) guarantee a batch of new peeresses, making the peerage look refreshed and modern from the first moment of the change, as opposed to having to wait years for any alteration really to show.

The question is when would you ever be allowed time for the bill. Once you manage to get a vote on it, you may be past the worst. Even with this government, the argument against helping peerages to survive being used against female inclusion would be a thin one, especially as the political element is gone out of it. Most of the older titles are going to survive anyway, as long as the peerage survives that is, with or without the measure. It's just they will almost all be held by men, something the Socialists would find it awkward to support, if the speeches at the debate are correctly written. Their real resistance would, of course be because of anger at seeing the peerage renew itself and seem more modern and less fuddy duddy, which is the main reason they would not allow current hereditary peers in Parliament to retire. I believe the intention was to make the majority look ancient and out of date. But my guess is they would mostly abstain or avoid the vote altogether. The hereditary peerage, itself, has nothing to lose and everything to gain if the change is allowed. Otherwise, I am fairly sure that within ten years, you will see a challenge in Europe that will risk blowing it to bits or a Labour measure that could destroy its legal status and make it into a sort of Neapolitan joke.

The Earl of Cranbrook: Is it not the case that, except in the more ancient instances, each peerage was created by letters patent? Although in general based on a common model, there have been exceptions to the terms, of which Kitchener was one. However, if each creation was a separate and unique event, could all collectively be amended retrospectively? (4.08.08)

Professor Noel Cox: The Human Rights Act, with its general prohibition on discrimination on the basis of sex, could be seen as requiring that peerage succession law be changed. However, as with all human rights laws, there are limits to its effect. It must also be recalled that peerages are not offices, nor are they equivalent to access to housing, jobs or any other “human right”.

Lord Wrenbury observed in the Viscountess Rhondda Claim [1922] 2 A.C. 339 that:

"A peerage is an inalienable incorporeal hereditament created by the act of the Sovereign in which, if and when he creates it, carries with it certain attributes which attach to it not by reason of any grant of those attributes by the Crown, but as essentially existing at common law by reason of the ennoblement created by grant of the peerage."

  Thus a peerage is descendible as an estate in fee tail (a form of real property), and an incorporeal and impartible hereditament (property which has no physical existence), inalienable and descendible according to the words of limitation in the grant, if any. The key elements here, I would argue, are that the peerage is a form of property, and that its descent is controlled by the original grant. It is possible for property laws to change – as seen, for instance, in the abolition of primogeniture for real property in 1925 (Administration of Estates Act 1925 (15 & 16 Geo V c 25)). However, to do so can also result in the current heir being deprived of their legal right to the “property”. This would also be a retrospective piece of legislation, which is generally regarded as being bad practice.

Another key point is that the property is inalienable and descendible according to the words of limitation in the grant. Thus the descent of a peerage can only be altered by Act of Parliament (though there have been examples, in Scotland , of a grant being surrendered to the Crown and a new, altered, grant, being made. This would most likely create a new peerage in England , (and now the peerage of Great Britain and the United Kingdom ), but not necessarily in Scotland . Changing the succession of peerages be complicated by the fact that the letters patent of the original grant do differ, and there a thus a number of different modes of succession – quite apart from the special limitations which exist.

Thirdly, there is the danger that any legislative intervention would go rather further than would be desirable. It could be taken as an opportunity to abolish the peerage altogether. The collateral effect on the law of succession to the Crown is also something to keep in mind. That question is also much more complex than is often thought, not least in its international aspects (The Queen is sovereign of almost a score of countries). (5.08.08)

Lord Revelstoke: I am entirely in favour of inheritance by the eldest daughter where no immediate male heir exists or claims, for the reasons already explained by others. I am not sure Julian Fellowes is right when he says "...the extension of hereditary rights to women can only create a sense of an aristocracy renewing itself, even though it will not really be doing so." The aristocracy has always renewed itself in the usual way by marrying 'outside', also internationally and inter racially. Extending hereditary rights can add to the possibilities. (5.08.08)

Viscount Torrington: I would simply comment on Lord Revelstoke's observation that while the 'existing' aristocracy, or rather, peerage, may have renewed itself by marrying 'outside', the institution was renewed by the regular creation of fresh hereditary peers from those who people who were the 'peers' of their generation. This is no longer happening. (5.08.08)  

Mr Julian Fellowes: There is certainly something in Professor Cox's argument, but I'm afraid it will ultimately only lead to abolition. Once a custom is unacceptable to a society its days are numbered, whatever the justification. It is also worth remembering that the basis of entail law has been completely subverted, and now barely holds water when challenged, because people felt it infringed on their liberty. The other key element which the public is often unaware of is that European law is not based on precedent, as British law has always been. It is simply based on the opinion of the sitting judges. So they are in effect creating new law every time they open their mouths. If they decide our peerage law is wrong, all the precedent and entail in the world will not necessarily affect them. Of course, in that case, someone might try to appeal back in Britain against their judgment but others would wish to abide by it, and the ensuing chaos would sink us all. (5.08.08)

Lady Saltoun of Abernethy:  I would like to address Lord Torrington’s and Mr. Julian Fellowes’ contributions to this debate. I note that Mr. Fellowes did not declare his interest in the subject,  which is that his wife is the lady who would succeed Lord Kitchener,  should the law of succession be changed in accordance with their wishes!    I am afraid that my contribution may rival Mr. Fellowes’ in length. My views on the wisdom of attempting such changes are similar to Lord Coleraine’s, but I should like to explain how the Scottish situation arose – not through anyone’s proposals.

In Scotland in early times, all titles were tied to fiefs or freeholds of land, held of the Crown in chief, in return for military service. The right to sit in Parliament was tied to the fief, not to any specific person. Whoever owned the fief had the right, unelected, to sit in Parliament. The Barons were the holders of those fiefs which had been erected by Charter from the Crown into a Barony or Regality, which gave the owner, among other things, the right and duty to hold Barony or Regality Courts to administer justice.

Every freeholder of a fief, held of the Crown in chief, however small,  whether it was Barony or not,  as well as the holders of Baronies and Earldoms,  had a seat unelected,  of right,  in Parliament. The right to sit in Parliament went with the fief, the Barony or the Earldom,  and passed on the death of the holder,  to whomsoever inherited the land,  as a rule to the heir general or heir of the body. If the fief were sold the right passed to the purchaser, even in the case of an Earldom (The reader will understand how it is that I find it difficult to get very worked up about the purchase of Peerages – it has been with us for centuries!). The destination might be varied, when, as frequently happened, the holder resigned his holding to the Crown, in return for a new charter, which might, for instance, erect a freeholding into a Barony, or a Barony into a Regality or Lordship;  and a revised destination might then be incorporated into that charter.

Women were never deemed incapable in Scotland of holding or succeeding to land, and where the heir was a female,  she took without division. They could not of course sit in Parliament themselves, but it was customary for their husbands to do so on their behalf, and to take their titles.

Attendance at Parliament was no joy and privilege then, but a burden, and it was compulsory. Frequently it involved long journeys, at considerable expense, in bad weather, over almost impassable roads, with no inns, and with the danger of attack by hostile tribes, bandits or even wolves, so fines had to be imposed on those who absented themselves. If you were a very small freeholder you really couldn’t afford it, and there was no claiming expenses for attending in those days!

When James I returned to Scotland in 1427 after his long imprisonment in England , in the course of which he had received an excellent education and acquired modern ideas on the promotion of trade and agriculture, he was horrified at the poverty and ignorance he found, and resolved to introduce legislation to improve matters. This would involve holding frequent Parliaments and he realised that in order to secure adequate attendance at these Parliaments from the smaller freeholders to balance the power of the greater Barons, reform would be necessary. The Earls and the larger Barons were appointed to be summoned to Parliament by a precept directed to each of them, which they were required to obey (“waiving all excuses”!).The smaller Barons and freeholder were not excluded, but their attendance was dispensed with on condition that they appointed 2 proxies per shire or county to attend in their stead, whose expenses they would defray.

The creation of some of these Barons into Lords in Parliament dates from the reign of his son, James II. These Lords, of which my ancestor was one, received no writ nor letters patent. They merely received the usual summons to attend Parliament, and were created by investiture only, analogous to feudal investiture. An entry would be made in the journals of Parliament, and might or might not be followed by a charter specifying the destination. Copies were not always kept of the records (no back-up discs!) and many of the records were lost,  some at sea,  stolen or sunk in a watery grave.

In 1457 unconditional dispensation was given to all whose estates were under 20 merks that were not Barons or persons who should be specifically required to attend. In 1503 this was raised to 100 merks on condition they sent proxies. But they still all retained the right to sit in Parliament without election until 1587. In that year, James VI abolished the right which the tenure of land had given to a seat in Parliament, and thenceforth no commoner had a seat unless elected. Two freeholders were to be chosen from each county to attend at the expense of all. Lords and Earls still had to attend, and,  moreover, could not vote in the election of freeholders,  just like members of the House of Lords to-day. From then on, all Peerages were personal and ceased to be dependent on the ownership of the Lordship or Earldom. Impoverished Peers had become a possibility! Peerages were mostly created by letters patent, and were not transferable, but strictly entailed. In many cases the entail was limited to the heirs male of the body, because only men could sit in Parliament,  but in instances where there was no heir male of the body, other arrangements were made.

Having said all this,  and although I think our Scottish system is much better than the English system of abeyance which only leads to a lawyers bonanza,  I think it would be very unwise to attempt to interfere with the devolution of Peerages created in the past.    To do so is to introduce retrospective legislation, and it seems to me similar to overturning the wills of long deceased persons, both royal and otherwise, and every instinct tells me that once that cat is out of the bag, a whole lot of other cats, which we hadn’t realised were there, will follow. I agree with Professor Noel Cox that the introduction of any Bill gives the Government a golden opportunity to tack on other things which we do not want, including the abolition of all Peerages, although I think they themselves enjoy being Lords too much to be in a great hurry to do that!

I think the Baronets are being very unwise. Sniffing the air, I smell the wind of change on the feminist front. I think that women are beginning to realise that the storming of all male citadels has had the unwanted consequence of landing them with doing two jobs for one wage, and all the stress that involves,  besides depriving them of the right to any female citadels such as single sex wards in hospitals and dedicated ladies’loos!     

My advice is keep quiet, do nothing, say nothing, and hope that no-one notices you! (6.08.08)  

Mr Charles Shirkey: I'm an American friend of Tim Torrington.  Questions aside as to how I made it on the circulation list, I wish to comment.  Although I come from a country founded on the proposition that "all men are created equal", I appreciate the indispensable role the hereditary peerage has played in the making of Britain .  I read Churchill's "A History of the English Speaking Peoples" when I was 13 and wrote a research paper in high school on "The French Influence on England" -- the lasting impact the Normans had on England and beyond.  While a student at Oxford , I studied your political history beginning in 1800.  During my summer vac, my father and mother and I put 5,000 miles on my old Vauxhall touring the British Isles for 7 weeks.  While my father was learned in English literature, my mother was steeped in English history.  We visited the sites where very many notables of English history and literature were born and buried.  I am familiar with the role and value of the hereditary peerage for England , its former colonies, its allies, and its fellow members in the European Union.

There is no question the institution of hereditary peerage is under siege, perhaps increasingly so.  It began with the changes effectively terminating the creation of inherited titles in the early 1960's.  As changes progressed, I became aware of the personal impact they have when my friend Tim Torrington was removed from his hereditary seat in the House of Lords and his position of responsibility in the chamber. 

The matter immediately before you involves finding a way to prolong peerage lines that otherwise would come to an end.  But there is a broader matter at stake.  It is how the institution of the peerage will evolve. 

Mr. Julian Fellowes raises the prospect that "By having no hereditary peerages . . . inevitably means that the Court would and must drift further and further away from the centre of public life, until, by the time a century had passed, it would have no connection whatever to the great careers and the great events of the previous hundred years."  The challenge before you is how to reverse that.  It is twofold:  First, is how to sustain the family and social ties that nurture and retain the tested values and noble traditions and that long-range view of history and lessons learned.   Second, is how your heirs will respond in decades ahead, regardless of how the political winds blow.  To what lengths will they go to retain the respect of their countrymen and take their earned place in the nation's leadership.  For certain, it will not be easy.  Worst would be if many in new generations withdraw from the "great events" that lie ahead.

Once again, Britain is needed and so are you.  The former Soviet republics, the EU as a whole, NATO, the United States and the Western Alliance are being tested once again by the crisis in Georgia .  How will you respond?  

Viscount Torrington: It seems appropriate to bring this debate to an end at a moment when (3rd February, 2009) the House of Lords is yet again the subject of heated debate in the media, following revelations or rather allegations that certain life peers have been attempting to influence legislation for reward. I am sure, sadly, that such a practice was not altogether unknown when the House was comprised solely of hereditary peers. Some might allege however that in the old days it was the other way round. Lloyd George's party accepted payments from peers to get into the House to influence legislation.....or was it just to get in?

I would like to thank noble Lords and others who have contributed to the debate. I have a suspicion that there will be attempts to change the rules of succession to peerages and that these may or may not succeed in broadening the franchise. If, however, the current furore leads to the usual knee-jerk over-reaction then Britain may have an elected senate in the quite near future. At the same time, hereditary peerages will become yet further divorced from their original parliamentary role, and be seen even more perhaps as an anachronism. Presumably, no more peerages, life or hereditary will then be created. Peerages will the tend inevitably to die out, but the process would be slower if women could succeed where no direct male heir exists. We may perhaps return to this debate in the future.

The Debate closed on 3rd February, 2009

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