The Society is very grateful to Professor Gillian Black for the final lecture of the 2022 series, on Succession to Titles, Honours and Coats of Arms: is there a case for law reform?
Gillian Black is Professor of Scots Private Law at the University of Edinburgh and a specialist in family law. Additionally, she is Linlithgow Pursuivant Extraordinary at the Court of the Lord Lyon King of Arms, and a member of the Scottish Law Commission. She has done extensive work on her particular field of interest in matters of succession, where heirs have been omitted from legislation on equality over the last 40 years or so, notably that relating to titles, arms and offices of state.
Professor Black discussed her subject under six headings: Gender; Illegitimacy; Assisted conception; Surrogacy; Gender reassignment; and Adoption. In each of these instances, the law demands equality in every respect, except that relating to the subject in hand.
In matters of gender Scotland has always been ahead of the game in that, while male line primogeniture has been preferred, flexibility has been exercised in that a daughter will often succeed in preference to a distant, male-line cousin. Some of the older Scottish peerages, unlike almost all of their English counterparts, have always been able to descend through the female line, but only in the absence of male heir who was equally close.
Illegitimacy is always a bar to succession, with a very limited handful of exceptions from the distant past. This is despite the fact that the status of illegitimacy itself was entirely abolished in Scotland in 2006. However, as in every other respect Professor Black discussed, an exemption was made for titles, honours and coats of arms.
Formal adoption came to Scotland as recently as 1930, although there are many cases of adoption on a purely informal basis before then. Once again, the law today makes an adopted child the legal offspring of its adoptive parents in every respect – except in the one under discussion.
The remaining circumstances are of much more recent origin and again the law forbids discrimination in every respect except insofar as it relates to matters of arms and titles. For these purposes, and for these only, someone who has changed gender retains the one shown on their birth certificate, and where assisted conception is concerned, the child must be the genetic offspring of both parents, who must be married to each other.
Leaving aside the obvious unfairness involved, and the changes of attitude we have seen in recent decades, 21st century science has thrown the problem into sharp relief. The recent case of the Pringle of Stichill baronetcy saw the succession dramatically redirected, which not only prevented the late baronet’s legitimately born son from succeeding his father, but also saw the two most recent baronets excised from the family’s history altogether, with their removal from the Roll of the Baronetage.
A Pringle family DNA project had revealed that the deceased baronet, General Sir Steuart Pringle, the 10th of his line, did not belong to the same male line kindred as others who had had taken part. The conclusion was that his father, the ninth baronet, was not the biological son of his grandfather. When the succession opened on Sir Steuart’s death, his son’s claim was challenged by a cousin on the basis of that DNA evidence. The Privy Council’s decision was clear: the title was remaindered to the heirs male of the body of the first baronet. Neither Sir Steuart, nor his son, nor his father fitted that criterion, so their claim on the title was invalid.
It is an old cliché that while maternity is a matter of fact, paternity is a matter of opinion. Clearly DNA testing overturns this, and with it, the historic presumption of legitimacy, because for the first time, paternity can be proven (or disproven) in a way that was not possible in the past. This has epic implications for succession to honours, titles and coats of arms, consequences that could have effect for many generations or even centuries. Professor Black made the point that this alone introduces a measure of urgency into the long discussed need to reform the law of succession.
One obvious solution is simply to bring succession to titles into line with succession to everything else, and to say that the existing discrimination on the basis of legitimacy, gender, surrogacy, adoption and the rest, no longer applies. However even that is fraught with difficulties when its practicalities are concerned, in terms of finding a solution that fits every circumstance. A fascinating subject on which the debate will doubtless continue for some while yet, although there is now something of an inevitability that reform will come about, for better or worse.