1. Alan Smith considers proposed changes to inherited titles


In July 2018 a case was lodged in the European Court of Human Rights in Strasbourg by five women, each the daughter of a hereditary peer, to remove the bias in the inheritance of peerages that, with very few exceptions, can be inherited only by males and only through the direct male line. There is an arguable case for hereditary titles and there are arguable cases in many areas of activity for equality of opportunity between the sexes for appointments to particular posts. Nevertheless, attempts to combine the two will almost invariably end in hilarity.

However, I should like to examine the question and see whether any changes can usefully be made by looking at three areas: titles that have become extinct in the direct male line; titles where the present holder has only daughters but there is an heir; and future hereditary titles. Before I start on the detail I should state that, as far as I know, I have no claim to any hereditary title under the present system or any proposed change to the present system. The conditional clause, ‘as far as I know,’ is prompted by the fact that those who have worked in information systems, like lawyers, like to distinguish between the highly unlikely and the absolutely impossible.

Where an existing title has died out in the direct male line, there is a reasonable case for changing the rules of inheritance so that the title may be inherited by females and through females lines. This would benefit those who would inherit under the new rules and would not take away existing rights from anyone. However, it would be difficult to establish a general rule that would apply to all cases. Consider the following example.

Arthur has two children: the elder, Barbara, a girl, and the younger, Charles, a boy. Arthur is made a hereditary peer. Arthur dies and Charles inherits the title. Charles has only two children, both girls: the elder is Dorothy and the younger is Erica. In order to preserve the title, Charles campaigns for the law to be changed so that the eldest daughter, by whom he means Dorothy, should inherit the title. But should the title not pass to Barbara and her descendants? Once the law is changed to pass the title to the eldest child regardless of sex, then Barbara would appear to have an equal claim. Meanwhile Erica is left to wonder what is meant by ‘equality of opportunity.’ It seems to me that it would not be possible to specify a general rule that is fair in every case and that each case should be resolved by a private bill in Parliament.

It is understandable that the holder of a hereditary title who has daughters but no sons may support the suggested change, but would the previous holders of the title who were direct ancestors of both the present holder and the current heir agree? Moreover, would the present holder of the title have inherited it had the proposed changes applied in the past? Where the existing holder of a title has only daughters and the heir is a nephew or distant cousin, there seems to be no justification for taking the right to succeed to the title from the existing heir and giving it to the eldest daughter of the current holder.

Suppose that the current Earl of Emsworth had only daughters, the eldest of whom was Lady Jane Threepwood. Lady Jane may well say: ‘It’s not fair. I want to be the hereditary Countess of Emsworth, inheriting also the entailed estate of Blandings Castle.’ This would take away the rights of the existing heir and may well provoke others to say, ‘I should also like to inherit the title and the estate. Why should she be privileged just because she is related to the current holder?’

Rather than tinker with the rules for existing hereditary titles where there is an existing heir, I suggest that the efforts of reformers should be concentrated on establishing rules that would apply to new creations only. When a new hereditary title is created I suggest that the first holder should be able to choose one of the following three possible rules of inheritance. The first option would be the existing system, applicable only when the first holder is male, of inheritance by males only through the direct male line. The second option, applicable only when the first holder is female, of inheritance by females only through the direct female line. The third option, applicable whether the first holder was male or female, of inheritance by the eldest, either male or female. In the light of current opinion, a peer who chose the first option would probably qualify, also, for a bravery award.