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Standing Council of Scottish Chiefs Helps Prevent A Westminster Jolt To The Scottish Clan System

Do you ever wonder what sorts of things take up your Clan Chief’s time when he or she is at home in Scotland?  We know the list of duties is a long one but not surprisingly, our Chiefs spend a good deal of their time working hard to keep the Scottish clan tradition intact and strong in the face of all sorts of attacks sometimes from places one might not imagine.  SCSC Convenor Sir Malcolm MacGregor of MacGregor has  written an extremely interesting Guest Blog for COSCA to share with our readers regarding a recent battle over succession of Scottish clan chiefs being fought way down south at Westminster in the UK Parliament and House of Lords.  Thanks to Sir Malcolm and the SCSC working group on The Equality Bill for keeping Westminster in line regarding Scottish Clan tradition, law and history. Enjoy Sir Malcolm’s Blog below.

You can also watch the recent House of Lords debate on the Equality Bill, including our good friend The Earl of Caithness’ presentation and discussion of his remedial amendments to the bill by Clicking Here.

The Equality [Titles] Bill

Earlier this year, Lord Lucas of Crudwell (England) and of Dingwall (Scotland) introduced his Equality (Titles) Bill in the House of Lords. The provisions of the bill would allow for the eldest born in the family to inherit the family title. The initial statute provided that the bill would be permissive, which is to say, that, application could be made to the Lord Chancellor to change the inheritance of a title.

The initial draft bill was followed swiftly by some amendments made by the Earl of Clancarty, one of which was to make it mandatory for the title to go to the eldest child. No doubt both peers were inspired by the recent Royal Succession Bill which enabled the eldest child of the Duke and Duchess of Cambridge, whether male or female, to become monarch.

So how and why does this affect clan chiefs and ultimately clans? Because titles and their Ilk come under the heading of constitutional matters reserved for the Westminster Parliament. As far as clan chiefs go, there are about 65 who hold titles within the peerage and the baronetage. That leaves some 85 chiefs who do not hold titles in addition to their chiefly designation. In the case of these 85 chiefs it is arguable whether their positions are ‘hereditary titles’, or not. Clearly the Dukedom of Argyll and chief of Clan Campbell is.

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Earl of Caithness speaking in the House of Lords on the Equality Bill

Without wishing to take away the equality aspect of the bill, and it was questionable what the bill actually does for equality, the Standing Council was keen to protect chiefs and clans from the potential consequences. The council was lucky to have the Earl of Caithness in the House of Lords. In addition to him, a small working group included Sir Crispin Agnew of Lochnaw, member of the SCSC and chief of the Agnews, the Hon. Adam Bruce, heraldic advisor to the Standing Council, and myself.

Initial analysis quickly revealed that some current heirs who expected to inherit the chiefship would not do so if the bill became law in April 2014.  If Angus Macsporran younger of Macsporran had an elder sister, called Heather, he would no longer be the heir of apparent. Heather would be. Supposing that there was a castle or clan home that the younger of Macsporran had grown up expecting to inherit.  How would the situation be reconciled if Heather becomes clan chief, but lives out of Scotland and is married to Richard Dawnay from an old English family in Devon? She is Mrs. Dawnay living in Devon. On the death of her father she becomes Chief of the Macsporrans. Does she change her name to Mrs. Macsporran of MacSporran? What if she refuses? Can a Mrs. Dawnay be chief of clan Macsporran?  Will Mr. Dawnay agree to her name change? Should he change his name? What of the children? The eldest of whom, whether male or female, is now the heir apparent to the Macsporran chiefship. This heir apparent is now in the curious position of living in Devon possibly in an old Dawnay family home of historical importance, whose ancestor fought with Sir Francis Drake against the Spanish Armada in 1588, and yet, is destined to be chief of a highland clan whose lands and castle lie 500 miles away. Meanwhile the original younger of Macsporran keeps his name, lives in the clan castle, but is not the chief. What is the impact of this scenario on the clan? It is not unrealistic, and the scenario applies to a number of chiefs.

The situation is complicated further, if there is a peerage involved. Supposing the Macsporrans were in fact the Earls of Coigach. Lady Heather Dawnay becomes the Countess of Coigach whilst married to Mr. Dawnay. Her younger  brother Angus was Viscount Lochinver. What now happens to that title, as it has to go to the new Duchess’ heir apparent whether boy or girl? In effect Angus and his children are disinherited by the law of the UK Parliament. Where is the fairness in that? Plus Angus could be living in the family home and be neither the Earl nor the chief. Families could be split apart over this as has happened in Spain with an identical law.

It can be seen how chiefships could easily become separated from traditional clan lands and titles. One of the aims of our working group was to prevent that. A secondary aim was to preserve ‘expectation’ and to propose that the changes would not take place until the next generation had been installed . This would then give time for clans and families to plan for the future.

If hereditary titles go through the female line, there is greater risk that the title might be separated from any clan chiefship, or chieftainship, if the husband of a future female title holder is not willing to change his name, or to allow his eldest child to adopt the clan name, as identified in the Macsporran/Dawnay example. From a Scottish perspective it might have been sensible to have a provision in the Bill stating that any heir to a title is bound to adopt the surname linked to the title thus keeping the title with the chiefship. There are many examples where names have been changed to secure both the title and the clan chiefship. There are examples where the chiefship has been separated from the title, because the title was destined to the heir male, but if all titles go through the female line there is a greater risk of separation. That is not in the interests of the clan system.

There were also concerns that the Bill did not address specialities that relate to Scottish Peerages, Baronetcies and other hereditary titles. In the Ruthven of Freeland Peerage Claim 1977 SLT (Lyon Ct) 2 in giving evidence Sir Iain Moncrieffe of that Ilk identified 110 Scottish Peerages descended under a special or entailed destination, which could also go through the female line, 93 destined to heirs (ie male or female), 86 destined to heirs male whatsoever and 73 to heirs male of the body. So far as is known there are at least four Nova Scotia Baronetcies that have special or entailed destination and one that goes to heirs (male or female). No consideration was given as how these special destinations will operate when the succession opens to the next heir, whether male or female. Nor how succession through a complex entail will be traced in these changed circumstances.

In respect of chiefship of clans there is the position of  Lord Lyon. One of his roles is to grant the ‘undifferenced arms’ to the senior line of the clan or family. So that the holder of those arms is chief of the name and arms. It is then up to the clan to accept that individual whether male or female as clan chief. In almost all cases they are accepted. However there are instances where the current chief can alter the assignation of the ‘undifferenced arms’ with the agreement of Lyon. Under the Equalities (Titles) Bill that would no longer be possible because of the mandatory element proposed by Lord Clancarty, for the eldest child to inherit. This takes away years of flexibility, and rides roughshod over the Scottish system of assigning armorials. In addition Lord Clancarty put down an amendment to include ‘”all bearers of arms”. So in effect including all armigers in his bill and ‘straitjacketing’ the system of granting arms in Scotland.

There is then the further question of the myriad of hereditary offices of state which come with some chiefly titles. For example The Earl of Errol, chief of the Hays, is Lord High Constable of Scotland. The Earl of Lauderdale, chief of the Maitlands, is hereditary bearer of the National Flag of Scotland.  The Earl of Dundee,  chief of the Scrymgeours, is hereditary Royal Standard Bearer for Scotland. There are others such as the Captain of Dunstaffanage, and in England the Lord High Admiral of the Wash, held by the le Strange family since the Norman Conquest.  There are others that would be affected, or become separated from their traditional families, without careful thought and consideration.

The bill would have been become law in April 2014 and given a massive jolt to our clan system. But there are too many hoops for it to go through, so it is unlikely to pass.  One sensible solution to all this is to make it easier for families with no male issue to apply for a special remainder. This can be done via the Lord Chancellor, but is difficult. It should be made easier. Lucas and Clancarty were attempting a ‘one size fits all’ solution to the problems of equality in inheritance. The British, English, Irish and Scottish system of inherited titles is complicated. To try and wipe out laws with a blanket approach is, perhaps, not a good way to proceed. There are families with big estates, employees, symbolic in local communities, which could go awry. Far better to treat each case on its merits, and make it easier for individual families to change the laws of inheritance to fit their circumstances with the approval of Lord Lyon or the Lord Chancellor.

I would like to acknowledge the contribution of Sir Crispin Agnew of Lochnaw to some aspects of the above article.

Sir Malcolm MacGregor of MacGregor
Convenor, Standing Council of Scottish Chiefs

 

 

 

 

 

3 Responses to “Standing Council of Scottish Chiefs Helps Prevent A Westminster Jolt To The Scottish Clan System”

  1. A very strong and persuasive, well thought out yet quietly passionate argument. Thank you Sir Malcolm. Ard Choille!

  2. First, my thanks to William Shaw above for his kind comments. I commend COSCA and the overseas Scots, for taking an interest in this issue as ultimately it will affect the diaspora.
    Well done COSCA for finding the link to the Debate in the House of Lords. Lord Caithness, chief of the Sinclairs, and Lord Eroll , chief of the Hays, were good on the Scottish angle. It is worth watching that. Lord Errol rightly suggested removing the 85 chiefs from bill referred to in my blog, as this will define the meaning of the bill in a better way. IE that it should affect holders of titles in the Peerage and the Baronetage only. Irish peers such as the chief of Clan Donald are excluded from the bill. Irish baronets are included.
    It is worth noting the objection made by Lord Caithness to the proposal by Lord Clancarty to include all bearers of arms. Lord Clancarty pointed out that there were some 100,000 of these in England, but he did not mention Scotland. That would have caused yet more complications across the UK, from which only the lawyers would benefit.
    Lord Wallace of Saltaire was very good at identifying how complicated this all is, particularly as it involves the 4 countries of the UK each with its own unique aspect. He suggested much more time for consultation is needed. This is exactly the view of the Standing Council. We are all for equality, but it has to be done sensibly, or the lawyers will have a field day. Spain is an example where it has gone badly wrong.
    Lord Jopling made the point about ‘expectation’, which is a tricky one. However, his point was that the bill, should it become law in April 2014, should only be applicable from the next generation born after April 2014. That would be good for the Clan System as it would allow planning, and reduce the chances of anomalies, that I refer to in my blog. For those who wish daughters to inherit asap, such as Lords Lucas and Clancarty, then the method of inheritance should made easier to do that, via the mechanism of special remainder.

    With thanks,

    Malcolm MacGregor of MacGregor

  3. Ray Rolla McCall, Esq says:

    To All:

    I recently was made aware of this law and have a few problems with it. Especially where Clan Chiefs are concerned. The Clan Chief is the head of the blood line, ie of a DNA line. As we all know the daughter doesn’t inherit her fathers y-chromosomes. Her children would instead inherit their own fathers DNA and not their mothers, fathers DNA. So the question would become; in 2 generations would they still be technically the senior bloodline (DNA).
    I know that in my line we know who the last 7 generations of cousins are. The purpose of our Clan Gatherings are to keep in touch and to make sure that if one line dies out another will be able to pick up where the other left off.
    If you pass the line to a daughter not only does the DNA change, but so does the name. What would happens if the MacDonald of MacDonald’s daughter becomes Chief and she married another Chief, say a Campbell (whether for love or to rebel against her father). Now you would have The Campbell of Campbell being the Chief of Clan MacDonald of MacDonald and Campbell of Campbell. You begin to see the problem. You now have to Clans under one name.
    As the members of a Clan accept their new Chief, I seriously doubt a MacDonald would accept a Campbell as their Chief. Just as I am sure that now Campbell would accept a MacDonald as theirs.
    My point is that males are not the heirs as a macho/male superiority thing. They are instead heirs to maintain the original bloodline and name. If this changes then their is no point to the Clan system in the future. As the future Chief would not always be of the blood line. Especially if their where several female heirs in a row.
    The next question would be what happens to the male heirs. When a female marries, she marries into her husbands Clan and acquires his title. The elder son does not change Clans. He is still the one with the senior bloodline as he does carry his fathers y-chromosomes and will pass them to his own sons.
    Maybe I am wrong but to us MacKall’s this is how we determine the heirs to our own bloodline. As their has not been a MacKall Chief in centuries and will not be one for decades to come if we can’t get enough Armigers. Which brings up another set of problems. As we all know trying to do research on female lines is often difficult. Now imagine trying to keep records when the Chief line changes names every generation or every couple of generations.
    Now imagine that in 5 to 6 generations the line dies out either because the female chief dosen’t have kids or is barren. The question then would become who now is the new heir or Chief. Especially if the last male heir of the original name was 3-6 generations ago. Would it go to the last chiefs next sibling, resulting in yet another name change and even more confusion or return back to the last original name bearer. Another matter would be are the last3-6 generations heirs and as such Armigers of the Clan even thou they are not true Clan Members of the original Clan.
    These questions are why the Chief lines are passed to the eldest male sons and not their extremely beloved eldest daughters.

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