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Published online by Cambridge University Press: 06 July 2018
The significant evolution in family law in the last four decades has seen the breaking down of traditional barriers: illegitimacy has been swept away, and children conceived through assisted reproduction are now recognised as the legal children of their parents, even absent a genetic link. Transgender heirs are also fully recognised in their new gender. Yet fundamental exceptions remain in the case of succession to titles, honours, dignities and coats of arms, discriminating against children born out of marriage, or non-genetic children, or transgender children. The decision of the Privy Council in Pringle of Stichill emphasised this divergence, and raised the question of whether law reform is needed. In this article, we explore the rules which govern succession to titles and dignities and the two-tier system which has arisen. By pointing out the inconsistencies and lack of rationale therefor, we make the case for law reform to bring titles and dignities into line with the current understanding of family and succession.
Q.C., Westwater Advocates.
Dr., Senior Lecturer in Family Law.
The authors wish to thank Dr. J. Morrow Q.C., The Lord Lyon; Mrs. Elizabeth Roads, Lyon Clerk and Keeper of the Records; Mr. Grant Bavister, formerly Assistant Registrar of the Peerage and Baronetage, Crown Office; and Professors Emeritus George Gretton and Chris Himsworth of the University of Edinburgh for helpful comments on earlier drafts of this work. The views expressed herein, and any errors, are solely attributable to the authors.
1 In re the Baronetcy of Pringle of Stichill [2016] UKPC 16, 2016 SC (PC) 1 (hereafter, “Pringle”).
2 <http://www.college-of-arms.gov.uk/resources/roll-of-the-peerage> (accessed 2 April 2018).
3 <http://www.baronetage.org/official-roll-of-the-baronets/> (accessed 2 April 2018).
4 In Scotland there were c.10,000 recorded coats of arms at 1972: Sir Balfour, J., Lord Lyon Ordinary of Scottish Arms, 2nd ed. (Edinburgh 1903)Google Scholar; An Ordinary of Arms Vol II 1902–1973 (Edinburgh 1977)Google Scholar.
5 There is a very narrow exception for coats of arms, where there may be a “quartering of affection” outside the bloodline.
6 Erskine, J., An Institute of the Law of Scotland, ed. Nicholson, J. (Edinburgh 1871)Google Scholar, II.ii. 6. See also Section III below.
7 Other children were subsequently born to Sir Norman and his wife, but the dispute centres on the eldest two sons, Norman and Ronald.
8 Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [12]–[15].
9 Ibid., at para. [19].
10 Norman's legal (and social) father was Sir Norman, the eighth baronet, by virtue of the pater est presumption (i.e. the presumption that the man married to the mother at the time of conception or birth is the father), which was not overturned. The evidence cited in the decision pointed to a loving relationship between father and son: Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [21], [23].
11 Simon was the male heir of the ninth and tenth baronets, but of course had no genetic link to the first, let alone the eighth, baronet, as a result of the break in the genetic chain between the eighth and ninth baronets. See also B. Hacker, “Honour Runs in the Blood” (2017) LQR 36, at 37.
12 Discussed below in Section IV. See also ibid., at p. 37.
13 The rules on prescription will be dealt with in Section IV. The data protection defence is beyond the scope of this article: see Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [69]–[79].
14 Ibid., at para. [85], emphasis added.
15 D. Jenkins, “Is the Party Over for Peers?”, Tatler, November 2015, p. 125.
16 Stair Memorial Encyclopaedia, vol. 7, “The Crown”, (4) Officers of the Crown, paras. 811–831 (Edinburgh 1995); J. Ferguson, “The Officers of State in Scotland” (1910/11) Juridical Review.
17 Coats of arms have also been recognised as incorporeal feudal heritage: Maclean of Ardgour v Maclean 1941 S.C. 613, at [683]: “Family arms are admittedly feudal heritage”. Arms and names are indivisible: anyone seeking to inherit arms must also bear the family name, unless the coat of arms is quartered. Moreover, while only the heir can take the undifferenced (that is, the original) arms, other children may inherit a right to matriculate the arms, with an appropriate mark of difference.
18 Erskine, An Institute of the Law of Scotland.
19 Palmer, F.B., Peerage Law in England a Practical Treatise for Lawyers and Laymen, (London 1907), 5Google Scholar.
20 J. Maidment, “Report of Claims Preferred to the House of Lords in the Cases of Cassills etc.”, Edinburgh, 1882, Speech of Lord Mansfield in the Cassills Peerage Claim (1760/4), 30–39.
21 So called because the early Scottish baronets paid 3,000 merks to assist with the colonisation of Nova Scotia and were granted 16,000 acres in the province together with the title of baronet.
22 Pixley, F.W., A History of the Baronetage (London 1900)Google Scholar; Laing, D., Royal Letters, Charters, and Tracts – Relating to the Colonization of New Scotland and the Institution of the Order of Knight Baronets of Nova Scotia, 1621–1630 (Edinburgh 1866)Google Scholar. The Pringle title was one of these baronetcies.
23 Debretts Peerage & Baronetage (London 2015)Google Scholar, “Mountbatten of Burma”.
24 Ruthven of Freeland Petitioner 1977 SLT (Lyon Ct) 2, expert evidence from Sir Iain Moncrieff of that Ilk Bt, Advocate. From discussions with Sir Iain, the first author understands that the evidence was based on doctoral research for “Origins and Background of the Law of Succession to Arms and Dignities in Scotland”, Edinburgh University, 1958, now published as Sir Iain Moncreiffe of that Ilk Bt, The Law of Succession (Edinburgh 2010).
25 Sir Crispin Agnew of Lochnaw Bt, “The Baronets of Nova Scotia” (1979) 1 The Double Tressure, Journal of the Heraldry Society of Scotland 21; Dunbar of Hempriggs, “Baronetess” 1966 SLT (Lyon) 2, at 7 for a discussion re female succession to Nova Scotia baronetcies, which included reference to the grant of a baronetcy to Dame Mary Bolles in 1635.
26 Palmer, Peerage Law, p. 74.
27 Report from the Select Committee on Peerages in Abeyance (London 1927)Google Scholar.
28 Bell, G.J., Principles of the Law of Scotland, 10th ed., rev. Guthrie, W. (Edinburgh 1899)Google Scholar, para. 1083.
29 Stevenson, J.H., Heraldry in Scotland (Glasgow 1914), 336Google Scholar.
30 Maclean of Ardgour 1941 S.C. 613, 681–86.
31 Cuninghame v Cunyngham (1849) 11 D. 1139, 1152. Followed recently by the Lord Lyon in Irving of Bonshaw Petitioner 2015 SLT (Lyon Ct) 11, at [6], [7].
32 Gunn Petitioners 1996 SLT (Lyon Ct) 3.
33 See discussion by Lord Lyon (Learney) in Munro-Lucas-Tooth Petitioner 1965 SLT (Lyon Ct) 2.
34 Mackintosh of Mackintosh 1950 SLT (Lyon Ct) 2; Macpherson of Pitamain 1977 SLT (Lyon Ct) 18.
35 Fox-Davies, A.C., Complete Guide to Heraldry, reprinted in 1951 with revisions by Dr. Franklyn, C.A.H. (London 1951)Google Scholar.
36 Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [27]–[28]; Dunbar of Kilconzie v Lord Advocate 1986 S.C. 1 (HL), 29, per Lord Keith.
37 Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [41].
38 Stevenson, Heraldry in Scotland, p. 336.
39 Bell, Principles, para. 1083.
40 Joint Committee on House of Lords Reform [Session 1962–63] Report (London 1962), Appendix 3 Surrender of Scottish Peerages; Memorandum by the Official Group and Appendix 12 Surrender of Scottish Peerages; Memorandum by the Lord Advocate.
41 “The Earldom of Selkirk” in Sir Paul, J. Balfour (ed.), The Scots Peerage, vol. VII (Edinburgh 1910)Google Scholar; Earl of Selkirk Petitioner 1985 SLT (Lyon Ct) 2. Whenever a Duke of Hamilton succeeds to the earldom it descends immediately to the Duke's younger brother.
42 “Colquhoun of Luss”, Burkes Peerage & Baronetage, 107th ed. (Northamptonshire 2003)Google Scholar; Grant of Grant, Lord Strathspey 1950 SLT (Lyon Ct) 17 – the first Colquhoun baronetcy passed to the Grant family by resignation and re-grant.
43 The law relating to honours and dignities and the functions of the Lord Lyon so far as relating to the granting of arms is reserved under the Scotland Act 1998, Sch. 5, para. 2(2).
44 Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [24].
45 Riddell, J., Inquiry into the Law and Practice in Scottish Peerages (Edinburgh 1842), 843–44Google Scholar.
46 Lyon Court papers bound volume “Jurisdiction”.
47 Cokayne, G.E., The Complete Baronetage, vol. II (Gloucester 1983), 291Google Scholar.
48 Copy Letters Patent dated 25 July 1776 held by Clan Donald Lands Trust; Repository Code 800001, Reference NRAS3273/5509.
49 Bosville v Lord Madonald 1910 S.C. 597.
50 “Macdonald of Slate, Chief of Macdonald” and “Bosville Macdonald of Sleat, Chief of Macdonald of Sleat”, Burkes Peerage & Baronetage, 107th ed. (Northamptonshire 2003)Google Scholar. Legitimation is discussed in more detail in Section V below.
51 Strathmore Peerage Claim (1821) 6 Paton 645, speeches reported in full (1830) 4 W & Sh App 89.
52 Viscount of Drumlanrig's Tutor 1977 SLT (Lyon Ct) 16; cf. Wright's Trs v Callender 1993 S.C. 13 (HL), which might require Lyon's decision to be reconsidered.
53 Wright's Trs 1993 S.C. 13 (HL), 19.
54 Sinha Peerage Case (Note) [1946] 1 All E.R. 348. See also Wilkinson, A.B. and Norrie, K.McK., The Law of Parent and Child in Scotland, 2nd ed. (Edinburgh, 1999)Google Scholar, para. 1.75.
55 Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [59].
56 Ibid., at para. [64].
57 Riddell, Inquiry, p. 130.
58 Palmer, Peerage Law, p. 167.
59 Ampthill Peerage Case [1977] A.C. 547.
60 Ibid., at p. 601, per Lord Russell.
61 Fullarton v Hamilton (1825) 1 W & S 410, 428.
62 Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [27].
63 Administration of Estates Act 1925, s. 46; Succession (Scotland) Act 1964, s. 2(1)(a).
64 This is therefore a different situation from that of a “social” parent and child relationship, such as a step-parent/ child, where there is no legal parental status at issue.
65 Johnson v Secretary of State for the Home Department [2016] UKSC 26, at [34], per Lady Hale. This case concerned the adverse impact of illegitimacy in the different context of citizenship and deportation.
66 Thus, where the mother has an affair and conceives the child extra-maritally, the child may be brought up as a child of the married “parents” but will be illegitimate in the eyes of the law, even if her husband accepts him as a child of the family – the Pringle situation.
67 Norrie, The Law of Parent and Child in Scotland, ch. 1, especially paras. 1.04, 1.39–1.43.
68 Law Reform (Parent and Child) (Scotland) Act 1986, s. 1, emphasis added.
69 Scottish Parliamentary Corporate Body, “Family Law (Scotland) Bill Revised Explanatory Notes” (2005), para. 35.
70 This exclusion may be because titles are beyond the legislative competence of the Scottish Parliament, in terms of the Scotland Act 1998: the explanatory notes state that the section removes “as far as it is possible and competent” the status of illegitimacy. This suggests the Scottish Parliament thought it was not possible or competent to remove the exclusion re titles (see ibid., at para. 35). However, in such cases, it is open to the Scottish Parliament to seek the consent of the Westminster Parliament, through a section 30 order in terms of the Scotland Act 1998: it is not at all clear that this route was considered.
71 United Nations Convention on the Rights of the Child, Art. 2.
72 Council of Europe, European Convention on the Legal Status of Children born out of Wedlock, Treaty No. 085, available at <https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/085> (accessed 2 April 2018).
73 Johnson [2016] UKSC 26, at [34], per Lady Hale.
74 Scottish Family Law Legislation, annotations to the 1986 Act, by Dr. D. Nichols, p. A268/27, para. A.711.5.
75 Scottish Law Commission, Report on Family Law, 1992, para. 17.11, available at <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235744/0004.pdf> (accessed 2 April 2018).
76 The Douglas Cause demonstrates how difficult it could be to overturn a presumption of legitimacy: Douglas v Duke of Hamilton (1769) 2 Pat 143, discussed in Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [33]–[35]. See also Macfarlane, L.B., “A Noise All Over Europe: Douglas v Duke of Hamilton”, in Grant, J.P. and Sutherland, E.E. (eds.), Pronounced for Doom (Edinburgh 2013)Google Scholar.
77 Russell v Russell [1924] A.C. 687.
78 Ampthill Peerage Case [1977] A.C. 547.
79 Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [31].
80 Norrie, The Law of Parent and Child in Scotland, para. 1.55.
81 See “Macdonald of Sleat Baronetcy”.
82 Viscount of Drumlanrig's Tutor 1977 SLT (Lyon Ct) 16; Dunbar of Kilconzie 1986 S.C. 1 (HL), where it was held that where the title had already descended to a junior stirps that the legitimation of a senior stirps did not displace the title holder who had already succeeded to the title.
83 Viscount of Drumlanrig's Tutor 1977 SLT (Lyon Ct) 16.
84 D. Pannick Q.C., “Hereditary Peers Must Get Their House in Order and End Discrimination”, The Times, 29 June 2017.
85 Palmer, Peerage Law, p. 97.
86 Succession (Scotland) Act 1964, s. 2(1)(a); Administration of Estates Act 1925, s. 46.
87 (Applications no. 4127/98, 41503/98, 41717/98 and 45726/98) Judgment of 28 October 1998, unreported.
88 Ibid., per concluding paragraph. Spain subsequently passed a law so that the eldest born child of either sex would succeed: 18869 LLEI 33/2006, de 30 d'octubre, sobre igualtat de l'home i la dona en l'ordre de successió dels títols nobiliaris: <https://www.boe.es/boe_catalan/dias/2006/11/01/pdfs/A02794-02795.pdf> (accessed 2 April 2018).
89 For example, the Equality (Titles) Bill 2012–13 introduced by Lord Lucas of Crudwell on 14 May 2013; the Honours (Equality of Titles for Partners) Bill 2012–13; and the Succession to Peerages Bill [HL] 2015–16.
90 Adoption of Children Act 1926; Adoption of Children (Scotland) Act 1930. For a history of adoption in Scots law, see A.B. Wilkinson and K.McK. Norrie, The Law Relating to Parent and Child in Scotland, 3rd ed. (Edinburgh, 2013), paras. 21.01–21.07, and in particular the comment at para. 21.03 that it was not until the Succession (Scotland) Act 1964 that a “total legal transplant” approach was adopted.
91 Donor sperm, donor eggs, or “double donation” where both eggs and sperm are donated.
92 The 2008 Act amends the Human Fertilisation and Embryology Act 1990 in parts, but the relevant sections for this article are contained in the newer act.
93 For a full account of the legal criteria to be fulfilled in each case, see Wilkinson and Norrie, The Law Relating to Parent and Child in Scotland, 3rd ed. ch. 4.
94 HFEA 2008, s. 33.
95 Ibid., at s. 35.
96 Ibid., at s. 36.
97 Ibid., at s. 42.
98 Ibid., at s. 42.
99 Ibid., at s. 43.
100 Ibid., at s. 54, which allows a couple to apply for a parental order, transferring legal parental status from the surrogate (and her spouse) to the commissioning couple.
101 See e.g. Barton, C. and Douglas, G., Law and Parenthood (London, 1995)Google Scholar, ch. 3; Shapiro, J., “Changing Ways, New Technologies and the Devaluation of the Genetic Connection to Children” in McLean, M. (ed.), Family Law and Family Values (Oxford, 2005)Google Scholar; T. Callus, “A New Parenthood Paradigm for Twenty-First Century Family Law in England and Wales?” (2012) 32 L.S. 347; Vonk, M., Children and Their Parents: A Comparative Study of the Legal Position of Children with Regard to Their Intentional and Biological Parents in English and Dutch Law (Antwerp, 2007)Google Scholar.
102 In the case of coats of arms, the adopted child could only take the birth parents’ arms if he or she also re-took the birth parents’ name, since arms and name are indivisible. Moreover, an adopted child could inherit the right to matriculate arms from their adopted parents, but with a mark of difference – in Scotland, a voided canton.
103 Emphasis added.
104 HFEA 2008, s. 48(8) for Scotland; s. 48(7) for comparable provisions for England, Wales and Northern Ireland.
105 Formerly HFEA 1990, s. 29, now HFEA 2008, s. 48.
106 Hansard, vol. 513, col. 1089, Lady Saltoun of Abernethy in 2nd Reading, available at <http://hansard.millbanksystems.com/lords/1989/dec/07/human-fertilisation-and-embroyology-bill> (accessed 18 March 2018).
107 If the parents are unmarried, then the child will be illegitimate and thus barred from inheriting titles anyway, as per Section V(A) above.
108 HFEA 2008, s. 41 makes it clear that a sperm donor is not the legal father and the egg donor is not the legal mother, by s. 47.
109 A genetic connection alone may not be enough: a sperm donor will have a genetic connection but no legal connection (in terms of HFEA 2008, s. 48(1)), and any genetic descendant would not inherit from the donor.
110 HFEA 2008, s. 33.
111 In re G [2006] UKHL 43, at [34], per Lady Hale.
112 This is subject to meeting a number of statutory criteria, including that the child is genetically related to at least one of the applicants, namely the commissioning couple.
113 SI 2010/985, Sch. 4, which provides that the Succession (Scotland) Act 1964, s. 37(1)(a) shall apply to the Adoption and Children (Scotland) Act 2007 as modified by these Regulations.
114 Corbett v Corbett [1971] 83, 104D; Forbes of Brux, Lyon Court decision unreported Lyon Register, vol. 47, folio 87 (Bound Process) following Sheriff Court Interlocutor of 21 August 1952 authorising the petitioner's change of name from Elizabeth to Ewan and sex on a birth certificate and recognising him as heir presumptive to the Baronetcy of Forbes of Craigievar to which he subsequently succeeded.
115 See the 2004 Act, ss. 1–4. The consequences of the issue of a gender recognition certificate are set out in ss. 9–21.
116 Incorporated into the law of Scotland by Union with England Act 1707.
117 Halsbury's Laws of England, 5th ed., R. Blackburn, Crown and Crown Proceedings, para. 10.
118 319 HC Official Report (5th Series), col. 1055.
119 See note 117 above, para. 22.
120 Ibid., at para. 6, citing Co Inst 7; Abr, Prerogative, A.
121 Ampthill Peerage Case [1977] A.C. 547.
122 Hacker, “Honour Runs in the Blood”, p. 41.
123 This is primarily a scientific question, but has been addressed by legal academics, especially in the context of the importance (or otherwise) of knowing genetic origins. See e.g. J. Herring and C. Foster, “Please Don't Tell Me”, 21(1) Cambridge Quarterly of Healthcare Ethics (2012) 20, at 25; R.J. Blauwhoff, “Tracing Down the Historical Development of the Legal Concept of the Right to Know One's Origins: Has ‘to Know or Not to Know’ Ever Been the Legal Question?”, (2008) 4 Utrecht Law Review 99.
124 For examples of societies where kinship is viewed very differently, see Barton and Douglas, Law and Parenthood; and I.G. Leon, “Adoption Losses: Naturally Occurring or Socially Constructed?” (Mar–Apr 2002) 73 Child Development 52.
125 Challenging legal parental status in France, for example, is limited because there is a prohibition on DNA testing without the prior consent of the court, and it is illegal to buy or use a DNA test without consent: French Penal Code, Art. 226–28. German law also limits the class of persons who can challenge paternity (s. 1600 BGB), such as when there is an existing person actively filling the role of the father. Further developments are expected in the Netherlands, where a government report has recommended the legal recognition of multi-parent families, namely more than two legal parents: Child and Parents in the 21 st Century (The Hague, 2016), para. 11.2.5. These all indicate that genetics is not the touchstone for ascribing legal parental status in these jurisdictions.
126 Under Scots Law pre-Treaty of Union 1707 the title holder could nominate a different child from the eldest to succeed to the title, with the consent of the Crown; e.g. Earldom of Breadalbane granted 1677 with power to nominate any younger son as successor and title passed to 2nd son as the eldest son was incapax: Sir Paul, J. Balfour (ed.), The Scots Peerage, vol. 2 (Edinburgh 1905), 203Google Scholar.
127 Contra the Continental model, which has not been adopted here.
128 The heir apparent is a male child whose right of succession cannot be displaced except by death, in contrast to an heir presumptive, where the right of succession can be displaced by the birth of a nearer heir. A daughter is an heir presumptive, because the birth of a later born son displaces the daughter. Walker, D.M., The Oxford Companion to Law (Oxford 1980)Google Scholar, “Heir”.
129 Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [85].
130 Kershaw, S., “Fifty Years On: The Hereditary Peerage since 1965”, Debrett's Peerage and Baronetage, 2015 ed. (London, 2015), 4–13Google Scholar; Colinp, “Baronetage Decline since 1965”, Google Groups, Peerage News, available at <https://groups.google.com/forum/#!topic/peerage-news/NCaywWTirWw> (accessed 2 April 2018).
131 Such concerns were noted in Pringle [2016] UKPC 16, 2016 SC (PC) 1, at [22], [85], although it was accepted that a defence framed in terms of mora, taciturnity and acquiescence could not succeed in this case at least: paras. [62]–[64].
132 Blauwhoff, “Tracing Down the Historical Development”, p. 110.
133 Jaggi v Switzerland (Application no. 58757/00) [2010] ECHR 1815.
134 Bürgerliches Gesetzbuch (BGB), s. 1600, subs. 1.
135 BGB, s. 1600, subs. 4.
136 Thereby benefiting stability within family relationships: Hacker, “Honour Runs in the Blood”, p. 41.
137 Ibid., at p. 40.
138 There is a proposal in Germany for a “solely informational” procedure, whereby either party could seek genetic information without displacing the established parent relationship: Blauwhoff, “Tracing Down the Historical Development”, p. 113. A proposal for UK birth certificates to contain information about the genetic parents and the legal parents in cases of assisted reproduction has been advanced by A. Bainham, “Arguments about Parentage” [2008] C.L.J. 322, 336. See also G. Black, “Identifying the legal parent/child relationship and the biological prerogative: who then is my parent?”, 2018 Juridical Review 22.