Over the last fortnight, UK Constitutional law has been subject to fast moving reform regarding royal succession and royal family marriages following agreement to make long overdue changes to numerous discriminatory statutory provisions at the 2011 Commonwealth summit in Australia. This commentary will consider these changes against the historical background necessitating them.
In brief, three changes are proposed require amending various long standing constitutional statutes, including the Bill of Rights 1689, the Act of Settlement 1701, the Acts of Union 1707 and the Royal Marriages Act 1772. These changes are:
1. Removing the bar to succession for heirs who marry persons of the catholic faith.
2. Removing male-preference primogeniture which enforces male over female lineage in succession, regardless of whether the first born of the current monarch is female.
3. Removing the rule requiring Royal family members to obtain permission of the monarch to marry.
Due to the shared nature of the Crown, consensus of 16 Commonwealth realms including Australia, Canada and the UK is crucially required.
Of obvious interest and the principle motivation for reform is the existence of highly discriminatory provisions regarding Catholicism and gender. The reasons for such discrimination are historic and require some background explanation.
Firstly, while the Royal Family in the UK reaches back farther than the 17th Century, in the first half of this century events occurred which shaped much of our modern constitutional state, kicking off with power struggles between Charles I and parliament which precipitated the 1642 English Civil War between Royalists and Parliamentarians, which ended with execution of Charles, and the establishment of a Republican 'Commonwealth of England'. The reasons for this were firstly Parliament’s growing power directly conflicting with Charles’ exercise of Royal Prerogative powers to achieve questionable things including raising unlawful taxes (Ship money), dissolving ‘uncooperative’ parliaments for years, and attempting to arrest MP’s inside parliament. Secondly there was increasingly perceived Catholic bias by Charles to the exclusion of the largely Puritan Church of England.
Republicanism failed however, and royalism was restored in 1660 with the ascent of Charles II. Britain became again a constitutional monarchy, and continued as such until following Charles II’s 1685 deathbed conversion to Catholicism, the succession of his Catholic brother James II, talk of ‘divine right’ and growing royal Catholic bias, Parliament again moved against the King, and having invited William of Orange to land his European armies, ousted James who fled to France which parliament held as lawful abdication.
Parliament then offered the throne to William and Mary on the conditions under the 'Bill of Rights 1689 that they surrender of most Royal Prerogative powers to parliament. This statute also contained the following paragraph regarding Catholicism and the Crown:
'....whereas it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince, or by any king or queen marrying a papist….all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm…'
The implications were obvious; parliament had excluded from succession anyone of the Catholic faith, or anyone who was married or had been married to someone of such faith, thus purging Catholicism from the monarchy.
The Bill of Rights which envisaged succession through the heirs of William and Mary soon became inadequate however when Mary died childless, William never remarried and his successor, Mary’s sister Queen Anne also died childless. Faced with fear that the throne could be reclaimed by the lineage of James II, parliament issued the Act of Settlement 1701 which settled succession to Sophia of Hanover (granddaughter of James I) and upon her death to her heir George I. It also reiterated the Catholic stance of the Bill of Rights and reinforced the principle of succession by 'heir', which at common law meant first born male, perpetuating male preference.
Subsequently the Acts of Union 1707 brought Scotland and England together under one Crown broadening the reach of these discriminatory principles throughout Great Britain, and the Royal Marriages Act 1772 required Royal family members seeking to marry to obtain the monarch’s permission in doing so.
Later as the British Empire grew, so the discrimination spread, affecting succession since. In time however many Empire territories sought independence, some through republican separation, and others including Canada and Australia through a gradual process culminating with Westminster granting full sovereignty under the Westminster Act 1931, with the last remaining thread for many being retention of the Crown. The crown therefore became shared between numerous independent sovereign states, each holding a separate claim and constitutionally equal power regarding the Royal Family as head of state. This is therefore why the UK can not unilaterally law regulating succession where such change would affect the constitutions of 15 other realms. Indeed the Statute of Westminster 1931 forbids any such unilateral reform as per the preamble to that Act:
'...inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom...'
All commonwealth realms must therefore agree to reform laws of succession, explaining why the issues required consensus at the Commonwealth Summit.
However while agreement was reached on the stated proposals, one questionable issue remains, the law excluding persons practicing Catholicism from succession, an exclusion now way out of step with modern equality law given effect for example through the Equality Act 2010 and Human Rights to freedom of religious belief and practice under Art. 9 of the European Convention on Human Rights and Art. 18 of the Universal Declaration of Human Rights.
There are arguments suggesting that this discrimination is required to protect the monarchs position as head of the Church of England, as appears evident in the words of the former Prime Minister Tony Blair as reported by BBC News in 1999 -
'The central point of the Act of Settlement is that the Established Church in England is the Church of England, of which the Sovereign is Supreme Governor. Therefore the Act does not prevent members of the Royal Family from becoming or marrying Roman Catholics, but does remove them from the line of succession.'
Such arguments hold little water however where exclusion does not simply limit the monarch to one religion, but bars only one religion among many. Indeed given the provocative language of the relevant law, there appears little to exclude individuals of other religions from succession. The retention of such discriminatory rules therefore appears unnecessary, and simply perpetuates prejudice and discrimination no longer acceptable in a UK where government is quick to criticise and rightly clamp down on religious hatred, intolerance or bigotry elsewhere in society.
To conclude, in my opinion it should no longer matter what religion royal family members are as it should not matter what religion any other individual is. Religion is or at least should be a matter of personal choice. If there is any practicality to the argument that a Catholic monarch would compromise objectively heading the Church of England, then given that the Churches influence is shrinking, it is perhaps time to consider separating religion from the state and monarchy entirely, as ideally in any forward thinking, socially inclusive multicultural state such as the UK and other realms, maintaining such discrimination at the highest levels of state is deeply questionable and presents a bad example of tolerance to those within and out-with such states who are expected to adhere to religious tolerance themselves.
Mike Farrell - November 2011
This is an edited edition of an earlier post published through the authors site LawBlogOne