Examination of Witnesses (Questions 1-37)
Q1 Chair: Good morning, Robert
and Bob. Thank you very much for coming in today to give evidence
on the rules of royal succession. We are looking forward to hearing
what you have to say. Members have some questions to ask you,
but would you like to make an opening statement to point us in
the right direction?
Professor Blackburn: Thank you,
Mr Chairman. It is a great pleasure to be here today with my friend,
Bob Morris.
I shall make a few opening observations, which
might help to facilitate our discussion. As we all know, on 28
October it was announced from the Commonwealth Heads of Government
meeting that various changes would be made in the royal succession
laws. Those were that the male preference in line of succession
would be removed, so that there was gender equality, and that
the disqualification relating to the spouse of a monarch being
Roman Catholic would be removed as well. That will apply to Prince
William and the Duchess of Cambridge. It will not be retrospective.
The Prime Minister said that there would be
a Bill in the 2012-13 Parliament, and a New Zealand working group
has been set up to synchronise the arrangements. I think that
that will be extremely important, because it is quite tricky,
particularly with questions of timing and doing things in a particular
order.
I think the reforms are welcome and long overdue.
I presented the case for the changes more than 20 years ago in
an article I wrote. At that time, of course, discussions on the
monarchy were still fairly taboo, so I think it is worth reflecting
that in attitudes to modernisation issues affecting the monarchy,
the context has relaxed a lot. It is possible to discuss these
issues now in a sensible manner, whereas, going back 20 years,
it was quite difficult, because matters relating to the Crown
were very sensitive.
The changes have almost universal support in
the UK and across the Commonwealth realms, as those Commonwealth
countries that retain the Queen as Head of State are commonly
known. All three main UK party leaders support the changes, as
do the Queen and the Prince of Wales. There is therefore no great
heat or controversy about the reforms, though there can be sensitive
knock-on issues over which passions can be aroused, notably Church-State
relations, the future of establishment, particularly in Scotland
and, within the Catholic community, the Catholic disqualification
of the monarch for their symbolic aspects, and also particularly
perhaps in Canada's Quebec, among the separatist and republican
movements, and in one or two other realms with a high level of
republicanism, such as Jamaica and Barbados.
As a subject for discussion, the rules on royal
succession are enjoyable for their curiosity value and because
they are historically interesting. The whole subject raises deeper
constitutional issues, such as how a Head of State should be selected
and what qualities that person should possess to symbolise the
nation.
The particular event that led to this evidence
session—the agreement of the Commonwealth Heads of Government—shows
once again how constitutional amendment in this country proceeds
by way of ad hoc changes taken in response to some problematic
event or occurrence. The event in this case is the marriage of
the Duke and Duchess of Cambridge earlier this year and the likelihood
that they will soon start a family. The argument of principle
behind these changes was won years ago, but principle alone was
insufficient to motivate the Major, Blair and Brown Governments
to take the necessary actions. This whole episode therefore has
something to tell us about the process of constitutional reform
in the UK.
The proposed changes can be seen as part of
a wider process of codification of the Crown, coming shortly after,
for example, the codification of the prerogative power of treaty-making
in the Constitutional Reform and Governance Act 2010. A new basis
for financial support for the monarchy has been agreed. The Cabinet
Manual has codified many understandings about the monarchy. The
prerogative of dissolution of Parliament was superseded and codified
in the Fixed-term Parliaments Act 2011. This subject raises the
whole question of the process of constitutional development, whether
some coherent set of principles should be driving the Government's
constitutional reform programme and whether some established set
of procedures governing constitutional amendment should be put
in place.
To summarise some of the range of issues that
the Committee may wish to consider today, you may first want to
look at the common law rules of royal succession and the Acts
of Parliament regulating the royal succession. You may wish to
look at whether the changes should be going further and whether,
for example, the Royal Marriages Act 1772 should be repealed or
amended and why that was not included in the Commonwealth agreement.
Should there be an amendment removing the Catholic disqualification
of the monarch? Then there is the application of the Statute of
Westminster 1931, and the process of securing the other Commonwealth
realms' agreement to the changes and their amendment processes.
How is the position of the monarch's spouse
affected by the proposed changes? What is the public position
of the monarch's spouse? What should their title be? Should it
be king, queen, prince or princess consort and so on? That has
been discussed with monotonous regularity in the media.
What do these proposed changes have to say about
the idea that a UK monarch may have a wish to retire or skip a
generation? It has been suggested from time to time in the past
that Prince Charles might wish to do that in respect of Prince
William. Finally, should there be a more comprehensive codification
of the law relating to the Crown, to bring it up to date with
modern conditions? That could include, for example, the conventions
relating to Prime Ministerial appointments and Royal Assent, regularising
royal property and royal financial affairs, and laying down agreed
principles supporting political neutrality of the monarch and
the royal family.
Dr Morris: I agree very much with
what Robert has just said. One of the outcomes of the recent discussions
with the realms has been to put in place, for the first time,
some kind of machinery for discussing these issues, which has
not previously existed. There is a tendency for these matters
to be discussed in government and then brought to Parliament as
a fait accompli, because it has been agreed with everybody else
already.
As Robert was saying, a number of issues arise
on discrimination against not only Roman Catholics but everyone
else who cannot be in communion with the Church of England. The
changes in our society and the greater pluralisation of belief
and non-belief would argue for revisiting the structure, which
was mostly devised in the late 17th century when England was faced
with the hostile Roman Catholic powers. The geopolitical situation
has changed very considerably, but the apparatus that responded
to that remains largely the same.
The problem is how one begins to initiate some
sort of discussion on those issues. As Robert has said, in the
past there has tended to be a blight on this. If you can only
discuss it on demise, it is too late to address these matters.
Perhaps those are things that your Committee, Chairman, might
wish to address at some point in order to have the public discussion,
which is very difficult otherwise to initiate, and to locate it
in Parliament, where perhaps it ought to be. For example, the
coronation oaths have been altered over time without any statutory
authority, and these are really matters that Parliament should
perhaps be given an opportunity to address.
I have one point to make about establishment,
if I may. It is often presented as some holus-bolus thing. It
is presented as an all-or-nothing problem, in that the Church
is either established or it is not. In fact, it is not an inseparable
package. We are perhaps looking at the remains of the confessional
state, set up from the Reformation and gradually mitigated. One
could remove bishops, for example, from the House of Lords without
disestablishing the Church of England. Indeed, it is very difficult
to see what the irreducible minimum of establishment actually
is. For example, it is generally recognised that the thoroughly
disestablished Church in Wales none the less retains some establishment
characteristics? These are matters that one could perhaps examine
in more detail.
Chair: Thank you. Okay, Eleanor, would
you like to start us off?
Q2 Mrs Laing: It is great to be
discussing this subject at last, and I am very grateful to hear
you both say that it appears that there is widespread support
for the changes. I remember on the day Prince William was born—I
was then a forward-looking reformist new law student—that
my reaction was, "Oh, what a pity. That means we won't have
to discuss male primogeniture for 20 years." I was wrong.
It was 30 years. Nobody wanted to face up to it, and we are often
told that the reason for that is not any feeling about the ability
of a female to be monarch—after all, we have had a brilliant
female monarch for over half a century—but the fallout,
as it were, from beginning to tinker with the part of the constitution
that this affects. I wonder if you could say a little bit more
about, for example, the Act of Union 1707—the formation
of the United Kingdom—and how that would be affected? What
issues are opened up in that area by our beginning to look at
this?
Dr Morris: The Act of Settlement
is not entrenched. It can be altered by Parliament and has been
effectively invaded in a number of ways—much to the dislike
of the Scots. For example, clerical patronage was re-established
in 1711, despite the fact that it was thought that it had been
protected against by the Act of Settlement. One would have to
revisit it because of the change in the descent rules and also
perhaps because of the religious provisions. The very first oath
that the new monarch swears is the Scottish oath in the Accession
Privy Council the day after the death of the previous monarch.
This text obliges the monarch to swear to uphold the Church of
Scotland and the Presbyterian form of Church government in Scotland.
A general point about the oaths is that they
were devised at a time when the monarch was also the chief executive,
and what they said went. That has not been the case for a very
long time. One way of looking at this is that the oaths at present
require the monarch to swear to do things that they are not in
a position to fulfil. That is one reason, among others, why one
might want to revise or revisit this material.
Professor Blackburn: One interesting
aspect, looking to the future, is that Scottish independence might
very well be on the horizon. Alex Salmond has said that he wishes
to retain the Queen as Scotland's Head Of State, but how exactly
would that work in practice? Would there be a Governor-General
there such as in the Commonwealth realms? How would the principles
of ministerial responsibility or giving advice to the Queen operate?
So there are some interesting issues in relation to the Queen's
position in Scotland.
Q3 Mrs Laing: That is precisely
what I was exploring. We are opening a can of worms once we start
to look at this, although I am very much in favour of doing so.
Can I explore the established Church a little further? It is
not just the Church of England; we are also looking at the bishops
in the House of Lords, and it was interesting to hear what Dr
Morris said a few moments ago about the ability to remove bishops
from the House of Lords without disestablishing the Church. The
argument currently used is that we cannot think of removing bishops
from the House of Lords because that would affect the establishment
of the Church. Can you say a little more about the establishment
of the Church? I declare an interest, Mr Chairman, as a member
of the Church of Scotland. I am in a small minority, but we have
strong feeling about the matter.
Dr Morris: Those who do not wish
to change the terms and arrangements in England are prone to argue
that you cannot touch it without bringing down the whole structure.
There is abundant room for another view, which is to regard the
discrete provisions that remain from the confessional state as
something that one can tackle individually. That includes, for
example, the role of supreme governor. One could argue that one
must not touch that, otherwise the establishment will break down
around our ears, or one could take the view that we can respond
to the sort of society we have become and that we can re-interpret
that as well, as we have re-interpreted so many other parts of
the constitution, and make it possible, as one bishop at least
thought some years ago, for even a Roman Catholic to be the supreme
governor of the Church of England.
The role of the monarch in regard to the Church
of England is largely devoid of any real content now. The Church,
for the purpose of appointing its own senior clergy—including
the Archbishop—is autonomous. Bishops and other senior
clergy are now appointed by a private, unelected, unaccountable
committee of the Church of England, and that includes, of course,
the bishops who appear in the House of Lords.
The removal of the Prime Minister from any active
involvement in the process makes him now merely a post box for
the recommendations that emerge from the Church of England committee.
It means that the Church, for these purposes, is autonomous—as
it wishes to be. One can perfectly respect that, but it does
not suggest that one cannot contemplate discrete changes in the
arrangements. The position of the bishops is merely one of those.
The Church of Scotland is in a different position.
Some argue that it is established. Some wonder in what sense
it is established. It has, of course, an entirely different relationship
with the Crown—as you know better than me.
Professor Blackburn: You could
argue that disestablishment will happen when the Church of England
itself wishes to be disestablished. A fairly substantial body
of opinion within the Church of England supports disestablishment.
As I see it, from the state's point of view, the planks of establishment
are basically the Queen being Supreme Governor of the Church of
England, over which she acts very neutrally, of course, and the
appointment of bishops, which has been taken out of the control
of the Prime Minister in practice.
The bishops in the House of Lords look as though
their days might well be numbered in the reform process that is
going on now, and that just leaves the fact that ecclesiastical
law has to pass through Parliament to come into effect. The planks
of establishment are slowly one by one evaporating or changing.
Disestablishment might happen anyway at some point in the future,
but it might well be triggered from within the Church of England
itself.
Dr Morris: I think that I would
argue that that would be the best way for it to happen—if
it were to happen. The Church would then be much more in control
of the outcome. The danger in the present situation is that changes
may occur, which have not been thought through in the sense of
their effect on the Church, so it is perhaps better for the Church
to take the control of the process. Of course, it has been very
reluctant to do so, and has made no unforced changes by its own
initiative.
Professor Blackburn: A great deal
will change with the passing of Queen Elizabeth. With Prince
Charles on the throne, if he becomes King—I have written
a book about this: "King and Country: Monarchy and the Future
King Charles III"—there will be a sea change in all
sorts of different ways. It is well known that Prince Charles
is interested in other faiths and wants to be regarded as "Defender
of Faith" rather than "the Faiths". Paddy
Ashdown in his diaries referred to Prince Charles saying that
he could see no reason why Catholics should not be on the throne.
There will be a very different attitude towards these things after
Queen Elizabeth.
Q4 Sheila Gilmore: Just to follow
up on the Scottish dimension, is there any respect in which opening
up the Act of Settlement now could constitutionally make it any
easier to unpick the Act of Union and everything that goes with
that? Is there any relationship between the two?
Professor Blackburn: I will have
to think further about that, and possibly get in touch with you.
My instinct is to say no, I do not think it would create any great
difficulties.
Dr Morris: I support that view.
One is not talking about the core areas of the political union.
Professor Blackburn: If you are
looking for difficulties in this area, including implementing
the change across the Commonwealth, you can come across an awful
lot of theoretical problems, discrepancies and inconsistencies.
I think the change that has been agreed by the Commonwealth Heads
of State will be straightforward, despite those theoretical difficulties,
as long as there is genuinely political agreement across the 16
realms.
Dr Morris: It is characteristic
for people, if they do not wish to see change, to exaggerate the
difficulties, saying that it is impossibly difficult to legislate
or that it will upset the Union of 1707 and so on. I noticed that
an Honorable Member put this point as to the difficulties in a
debate last year: "Poppycock. Absolute tosh. Posh tosh, maybe,
but absolute tosh."
Q5 Sheila Gilmore: Obviously,
once we open up the question of succession to the throne in terms
of primogeniture, the question will be asked, "Why not do
that for other titles?"
Dr Morris: Titles of honour?
Q6 Sheila Gilmore: Is there any
reason why we should not be looking further?
Professor Blackburn: To remove
the disqualification relating to the monarch?
Q7 Sheila Gilmore: If we say that
a woman, the first-born child, is the one to inherit the throne,
should that not be applied to titles?
Professor Blackburn: To the aristocracy
generally?
Q8 Sheila Gilmore: Yes, earldoms,
dukedoms, the whole lot.
Professor Blackburn: Well, there
is some principle and consistency there, I agree. As I understand
it, the Government have been asked about that in the House of
Lords, and a Minister firmly rejected it and said there would
be no change in the law relating to the aristocracy. I can see
that would cause an upset to a very large number of families,
of course.
The whole subject is an area of how in this
country we live with inconsistencies of principle all the time.
It will raise difficulties. With regard to the hereditary principle
itself, I felt it was extraordinary in the early 1980s that Mrs
Thatcher suddenly resurrected the hereditary principle. Both William
Whitelaw, when he ceased to be Home Secretary to become Leader
of the House of Lords, and George Thomas, the retiring Speaker
of the House of Commons, were given hereditary viscountcies. That
was an extraordinary resurrection of the hereditary principle
after about 18 years. What was particularly extraordinary was
that George Thomas did not have any children, so why do that?
William Whitelaw had four daughters, none of whom could inherit.
You can by letters patent allow for a title to go through the
male heir, but that is a very special procedure. I think it might
have been done in respect of Earl Mountbatten, or one or two very
special people. I remember hearing that William Whitelaw had wondered
about getting the letters patent changed, but it seemed a bit
too much. He himself expressed some curiosity as to why the hereditary
principle had been raised at all. I don't know whether Mrs Thatcher
was thinking of her future. Of course, as to the future, although
no hereditary peerage was conferred on her, an hereditary knighthood
was conferred on her husband, so her son is now Sir Mark Thatcher—and
a baronetcy hadn't been created for even longer than a life peerage.
Dr Morris: To return to the point
that Mrs Laing was making about cans of worms, this is an example
of the fact that one cannot half-open a can of worms, because
all the worms will come out.
Q9 Fabian Hamilton: Professor
Blackburn, I would like to clarify something. Does that mean that
if Willie Whitelaw's eldest daughter had a son or any of the other
daughters had a son, they could inherit? No?
Professor Blackburn: As I understand
it, the title is defunct because it can't pass on to the daughters.
Dr Morris: There would have to
be a special remainder were it to go through a daughter.
Q10 Fabian Hamilton: So the daughter
couldn't inherit the title, but the daughter's son could?
Dr Morris: No, there has to be
a special remainder in the creation of the peerage.
Sheila Gilmore: How does that affect
"Downton Abbey"? I thought the whole point of that was
that the title went to a cousin.
Q11 Mrs Laing: Wasn't that the
clever thing about those two viscountcies? They were safe because
neither of the gentlemen had a son and therefore, although technically
they were hereditary, in practice they weren't?
Dr Morris: Yes.
Q12 Mr Turner: In fact, we have
opened a can of worms and we are told that some bits are within
the can of worms and some bits are outside it. An example is what
Lord Strathclyde has said. I'm going to have lunch shortly, so
I'll watch the truth of this—I say that because my Conservative
Association is coming here today. Why did Lord Strathclyde, presumably
having done some homework before he answered the question, say
that we can intervene and change the royal line, but we cannot
or we don't wish to change the peerage? It's got to be barmy—not
necessarily a bad thing, but barmy. Can we have a system that
is pure? Answer, no.
Dr Morris: Do we have to have
a system that's pure? Perhaps the answer's no there, too. A columnist
in the Financial Times was arguing that one of the effects,
or apparent intentions, of the change to the primogeniture rule
is to infuse logic into a system that isn't logical. Monarchy,
in that sense, isn't logical.
Q13 Mr Turner: No, exactly. So
why are we worried about this?
Professor Blackburn: Some worry
and some don't. It's really a theoretical issue, isn't it? As
I said earlier, the constitution of this country appears to change
on an ad hoc basis in response to a particular event or problem
that arises. We don't go in for laying down some underlying guiding
principles upon which we then create our political and constitutional
system. There's a good argument to say that perhaps we should.
It's the symbolic aspect of the hereditary principle that clearly
worries some people, and that certainly worries republicans. That's
the aspect that causes worry, but for those people who are quite
happy living with the inconsistencies from our historical traditions,
there's no particular problem.
Dr Morris: Inconsistency doesn't
matter of itself, but if it has some larger resonance, perhaps
it is relevant. One of the problems about, for example, removing
the ban on marriage to a Catholic is that you draw more attention
to the existing bans. You will have noticed, perhaps, the very
different language with which the Cardinal in England and the
Cardinal in Scotland greeted this change. The Cardinal in Scotland
has always been much more outspoken on this matter, whereas the
Cardinal in England has always been rather more reserved in his
responses to the situation.
Professor Blackburn: The problems
and inconsistencies are most damaging in a sociological context,
republicans would argue. It is about the symbolic aspect of an
hereditary monarch. Some would say that the symbolic aspect of
having someone who is not allowed to be Catholic on the throne
is offensive as well. In the world of politics, any problems like
this tend to be ironed out relatively smoothly.
Another conundrum comes to mind. The law relating
to primogeniture is a common law principle emanating from feudal
property law. For the first time ever, a situation arose in 1952
of a monarch dying with two daughters and no sons. Under the old,
feudal law, strictly speaking, the Princesses Elizabeth and Margaret
should have taken the throne jointly, because that is how mediaeval
property law worked, but of course, that would have been a nonsense.
When the Privy Council convened itself as an accession council,
it simply declared the common-sense solution, which was that the
elder daughter should become sole monarch.
Q14 Mr Turner: So let us imagine—it's
always great fun imagining—that the Jamaicans have an election
and someone gets in who does not want to change the rules between
now and the death of the Duke of Cambridge, which, I assume, will
be about 60 or 70 years away. Presumably, they can change or not
have to change the realms, so one might be different. That is
allowed isn't it?
Dr Morris: There are difficulties
here. The essential one is that other realms can change their
constitutions in any way they wish, but the United Kingdom is
not allowed to do so without their consent. That is partly because
of the 1931 Act, whose status is a bit uncertain in the sense
in which it survives. The provision was only in the preamble,
anyway; it had no direct legal effect, which Robert has pointed
out. But it is much more to do with the practical matter. You
want only one monarch throughout the realms; you do not want different
monarchs because of different succession rules. One of the smaller
realms—Tuvalu, for example, which has a population of 11,000,
97% of whom are Congregationalists—might decide to go on
a different furrow. There also might be a problem, too, with states
like Canada and Australia, which have large Roman Catholic majorities.
If they contemplate this situation, they might not be too happy
that there are still rules that would persist against Roman Catholic
preference. The Australians might pass legislation that entertains
the idea that succession provide that there is no hostility to
Roman Catholics or whatever. What its effect might be, I cannot
foresee.
Q15 Mr Turner: Dr Oddie says the
glitch in the scheme is that, under canon law, the children of
a Roman Catholic who is married to the Crown would have to be
brought up as Catholics, so presumably they would automatically
be removed. Is that accurate?
Dr Morris: Well, this is a matter
for Roman Catholic canon law. I understand that that might be
one of the effects. One might therefore have to confront a situation
in which one of the closest heirs—he or she—wished
to take up the Roman Catholic religion and was barred under the—
Q16 Mr Turner: But is it a question
of having to take it up, or is it the automaticity of your being
a Roman Catholic from birth, when one—
Dr Morris: The only possible authority
on this is papal—it is certainly not me. It is a matter
of election, perhaps, in the sense of whether you take this up
or not.
Professor Blackburn: It may be
worth while being clear about the application of the Statute of
Westminster 1931 to all this and the extent to which there will
be synchronisation across all the realms. The 1931 Act, which
was declaratory of what were regarded as existing principles at
that time, laid down two particular rules that are relevant here.
First, by convention, before any Act of the Westminster Parliament
can come into legal effect in the UK or elsewhere to change royal
succession, a procedure is imposed for the prior agreement by
the other Commonwealth realms. Under that procedure, all the Parliaments
of the realms must give their assent. I have updated that principle
because the phraseology of the 1931 Act refers to the "dominions,"
which at that time were Canada, Australia, South Africa, New Zealand
and so on. Newfoundland has now merged with Canada, so that is
out of date.
Dr Morris: And Ireland.
Professor Blackburn: Yes, and
Ireland—the Irish Free State at the time.
The general understanding is that the same principle
would extend to the Commonwealth realms. This is a constitutional
convention, and there is an issue: could the UK ignore the convention
and regulate for itself and/or other Commonwealth realms, if it
wanted to do so? I think it probably could proceed to do so. If
there were one or two realms that created a difficulty, that could
go back to the Commonwealth Heads of Government meeting and they
could determine by agreement among themselves whether this convention
needed to be slightly updated to allow for majority support, or
whatever, but I do not think that anything here could, in practice,
hold the UK up in this respect.
The other rule is that an Act of the UK Parliament
will not extend to any Commonwealth country unless that country
has requested and agreed to it. This is both a convention and
a law—it is specified in section 4 of the statute. Additionally,
each of these independent countries has to go through their own
constitutional processes. In just about every case they are slightly
different.
This is, in theory anyway, quite a major undertaking.
The New Zealand working group is going to have its work cut out
to synchronise and harmonise all of this, but it will be very
interesting. I think it will go through without any particular
difficulties.
Dr Morris: Of course there have
been changes since the 1931 Act. The Australians, the Canadians
and the New Zealanders have all legislated to remove any possibility
of the United Kingdom Parliament legislating in their case, so
things have moved on. The essential thing is to get agreement
between all the realms so that a single person's succession is
agreed on. How that is dealt with will vary between the states.
There is an argument in Australia, for example,
about whether it will be necessary for the Commonwealth Government
to secure the agreement of the individual Australian states, which,
being former colonies, have a rather different relationship with
the Crown than the provinces in, for example, Canada. These are
all local complexities that may give rise to some political difficulties,
but, as Robert has said, with good will I am sure it can be overcome.
Professor Blackburn: The day before
last, I trawled through the internet to look at local media organisations
in some of the Commonwealth realms, and I was surprised that there
appears to be very little discussion about this subject. It does
not seem to have ignited or excited any public opinion in the
realms, yet anyway, so far as I could see.
The only difficulties that I can foresee would
be some people—some individuals or groups—within the
countries concerned creating some difficulties. I do not think
that will be the case in Australia, interestingly, even though
it is well known to have a strong republican movement. Although
at the moment there is a small majority in favour of retaining
the monarchy, there is a widespread expectation that, after Queen
Elizabeth, they will create their own republic and Head of State.
That will be the appropriate moment, and on the current reform
proposals on the royal succession rules Julia Gillard has said
that she regards the matter as being straightforward. There is
a procedure in the Australian constitution for a form of co-operative
federalism, whereby the Australian Parliament can legislate at
the request of, or with the concurrence of, each of the state
Parliaments. That is probably the procedure they will use there.
In Canada it is a bit more tricky because, while
theoretically there are powers under sections 44 and 91 of the
Canadian constitution, which I think will be used, giving them
the power to change matters relating to the executive Government
of Canada, there is a possible procedural problem elsewhere in
the constitution. The constitution stipulates that constitutional
amendments to the office of the Queen can be made only by proclamation
of the Governor-General when authorised by resolution of the Senate,
Commons and legislative assemblies of all the provinces. The better
view is that that provision does not affect the office holder,
it affects the office. That might not be applicable, but I can
see that legal challenges could be mounted in Canada on that basis.
They probably would not succeed, but they would be a vehicle for
creating some problems—it would probably be Quebec separatists
or anti-monarchists who would wish to use those arguments.
Otherwise, in Jamaica and Barbados, there have
been indications by Prime Ministers or former Prime Ministers
that they wish to move to a republic, so whether they want to
make something of this occasion remains to be seen. And, of course,
when the legislation goes through this Parliament, it remains
to be seen whether parliamentarians in either House use the occasion
to raise other issues relating to the monarchy as well.
Q17 Fabian Hamilton: Going on
from that, is it theoretically possible for any of these Commonwealth
nations, notwithstanding the 1931 Act, because they disagree with
some provisions that are being discussed some time in the future,
to say, "We don't recognise that inheritor of the monarchy.
We don't recognise that heir to the throne. We recognise somebody
else as the heir to the throne."? In other words would it
be possible in 50, 70 or 100 years' time for some nation, if they
still remained part of the Commonwealth and saw the monarch of
Great Britain as their Head of State as well, to have a different
monarch, somebody else in the family? Is that at all possible
in theory?
Professor Blackburn: Well, you
can separate up the Crowns, yes.
Dr Morris: If the rules
diverge that could happen and that is why it is so important to
get agreement among all the 16 realms.
Q18 Mr Turner: In the declaration
it says that there are no other restrictions in the rules about
the religion of the spouse of a person in line of succession and
the Prime Ministers felt that this unique barrier—that is,
marrying a Roman Catholic—could no longer be justified.
Does that mean that if the heir to throne married a Jewish or
Muslim spouse, as long as they agreed to attend Anglican services
or did not insist on the conversion of their spouse to their own
faith, that would be okay?
Professor Blackburn: There are
no special provisions relating to the public office of the spouse
of a monarch, apart from not being a Papist, as we have been discussing
now. They don't have to be part of the coronation ceremony. They
don't have to undertake any oaths. Whether there should be some
greater formalisation of their position is a moot point—sort
of equivalent to First Lady in America.
Q19 Fabian Hamilton: But presumably
their children have to be brought up within the Anglican communion?
Dr Morris: There is no provision
as such. But down the lane, as it were, is a requirement that
the monarch must be in communion with the Church of England. His
spouse may, as you say, be of any faith or none. There may be
effects, as you raise, for example. Of course, one of the issues
the Church of England itself raises is that these arrangements
should remain, among other things, because it is not its fault
that Roman Catholics cannot be in communion with the Church of
England. This is a requirement of the Roman Catholic Church. This
is a private grief, which I am not sure that should extend, perhaps,
to public policy.
Professor Blackburn: As I understand
it, Catholics are under some form of obligation to bring up their
children as Catholics, or there is a heavier weight of obligation
than there is with Anglican members, which is a theoretical problem.
Q20 Fabian Hamilton: If the heir
to the throne was male and married a Jewish woman, the Jewish
line goes through the mother, so even if the child of that union
was brought up in the Anglican communion, theoretically that child
would still be technically Jewish under Jewish law. Does that
matter?
Professor Blackburn: So long as
that person can satisfy the requirements of being a monarch, the
child, in summary, cannot be a Roman Catholic, cannot marry a
Roman Catholic at the moment, must make a public declaration that
he or she is a Protestant, must join communion with the Church
of England, must swear to maintain the established Churches of
England and Scotland, then that is all right. But if they can't
do that, then they are disqualified from being a monarch.
Q21 Fabian Hamilton: Why is it
not time now, then, when we are making these reforms, to disestablish
the Church of England? Would that be such a shocking thing to
do now, because it seems nonsensical for the monarch to have to
adhere to any particular faith, surely?
Dr Morris: As a thought experiment,
if we moved from the virtual republic we are to an explicit republic,
would one for a moment contemplate imposing religious tests on
the president? The answer is no. On the other hand, one could
alter these rules without necessarily disestablishing the Church
of England. For example, as Robert has explained, the Church of
England has a special right of initiative in legislation that
passes through this House, and there are other features that could
remain.
One of the crucial ones is in the hands of the
Church of England itself, which is whether it wishes to retain
parochial coverage throughout the whole of England. That is a
matter of discussion in the Church of Scotland at the moment,
simply because of resource pressures. These issues are in the
hands of the Church of England and do not necessarily have to
be addressed if one is addressing the religious rules.
Q22 Fabian Hamilton: On the occasions
that I have been to, for example, Iran or Pakistan, which are
explicitly religious republics—or in their cases, Islamic
republics—they always point to the fact that, "You
may be a monarchy but you are a religious monarchy; you have a
state religion, just as we have a state religion, so what is the
difference?"
Professor Blackburn: There is
no appetite within the political establishment to tackle this
issue, although I think I am right in saying that Tony Blair,
John Reid and quite a number of other senior politicians have
expressed that, in principle, they favour removing the Catholic
disqualification relating to the Head of State.
Dr Morris: There is some support
also, of course, from other religions for the continuation of
certain aspects of establishment. They regard, for example, the
very special position of the Archbishop of Canterbury and the
fact that there are bishops in the House of Lords—the legislature—as
ways of extending some sort of umbrella of protection or patronage
over religion more generally. These views have perhaps grown in
some respects, simply because of changes in the patterns of belief—not
only pluralisation, but the fact that religious belief has declined
very sharply in this country.
Q23 Fabian Hamilton: So you do
not think the French system, where expressions of faith within
any sort of public institution or public life are expressly discouraged,
if not forbidden, will ever will ever happen in the United Kingdom—is
it not time to dispense with the outmoded idea that we have an
official state religion?
Dr Morris: One can be secular
without necessarily being secularist. The French system is secularist,
but, even there, there are compromises—it gives substantial
subsidies to Roman Catholic schools, for example, and the arrangement
in 1905 was that the state would pick up the responsibility for
maintaining religious buildings built before then. So it is a
mixed economy, rather more than it says, but the state attitude
is secularist. I do not think anybody has suggested that what
is now a secular arrangement in Britain should move in that direction.
Professor Blackburn: Disestablishment
is a very difficult, sensitive and complex issue, which is some
steps removed from the major issue that we are talking about today.
I am an Anglican. I can see in principle the arguments for disestablishment,
but I can also see the pragmatic advantages of having an established
Church.
Q24 Stephen Williams: I am getting
to the point now where I am struggling to find any more worms
in this can to try to hook. As a Welshman—Mrs Laing's Celtic
heritage is rather more obvious than mine—is this really
an English problem? Everyone keeps saying it is so complicated.
The English love to think their built-up traditions are so complicated
that no one else can possibly unravel them, unless you are from
outside them, in which case you think they are ludicrous—as
Lloyd George did, or even James VI and I for that matter. The
Queen manages to be Queen of Wales, Queen of Northern Ireland
and Queen of Scotland without being head of any religion in those
parts of the United Kingdom, so why could she not be Queen of
England without being head of a particular denomination of a particular
faith?
Dr Morris: It is one of the questions
of logicality which were raised earlier. For example, when the
Queen crosses the border into Scotland she ceases to believe in
bishops, and when she comes back she believes in them again. One
can imagine, as one crosses the border, that some synapses of
the brain open and some close—one lives with these kinds
of inconsistencies.
I suppose the point is that the Church of England
comprehends, theoretically at least, 85% of the UK's population.
There is a sense in which the Church of England operates in a
UK mode—for example, when it crowns the monarch and so on—whereas
you could say that the Church in Wales, which is a disestablished
Church since 1920, occupies a not dissimilar position in some
respects in Wales, certainly in civic duties, civic ceremonies
and so on and so forth. But I share that perspective, coming from
Wales myself.
Professor Blackburn: I will simply
observe that we have an historical constitution and so we have
this rag-bag of ancient statutes, many of which still apply and
have created a large number of inconsistencies, many of which
we have got around by creating new political conventions in their
political application.
Q25 Stephen Williams: What I am
trying to get at is that the Church of Ireland was disestablished
in 1869, you have just said that the Church was disestablished
in Wales in the 1920s, and I am not such an expert on Scotland
but I do not think it has ever been properly established there,
but the sky hasn't fallen in on any of those countries and no
one thinks the Queen is any less the Queen. Those Churches, as
you say, have a community role in Cardiff, St David's or wherever,
so why is it complicated in England? It's not really, is it, if
we're honest? People just like to keep these things and therefore
say that it is complicated to change them. I am not sure that
it is any more complicated than it was in 1920 or 1869.
Dr Morris: I would agree, yes.
It is "posh tosh" to say that, as Chris Bryant says.
There are lots of legal theoretical difficulties, but the only
issue otherwise is securing political acceptance for the various
changes where they apply. So here, the complexity is getting agreement
across the Commonwealth.
Q26 Stephen Williams: Perhaps
we need another Welsh Prime Minister.
May I go on to the aristocracy? One of you said,
and certainly Lord Strathclyde has said, that it is complicated
to change so that you can have a Marchioness rather than a Marquis,
or a Duchess rather than a Duke. Why is it complicated? It's quite
straightforward, surely.
Professor Blackburn: It will unsettle
the expectations of a large number of aristocratic families, and
that is the difficulty. It would probably take a lot of thought
and time for parliamentary counsel and consultations to take place
to think through the implications of all the changes. It might
well be unpopular among the aristocracy, so one would have to
take opinion about that as well. So, are you doing this because
there is a steam of heat behind the issue within the aristocracy,
who want to change their own succession rules, or are you doing
it simply as a matter of symbolism? There are all sorts of symbolic
things that might be objectionable in principle that we put up
with because changing them might create practical difficulties.
Dr Morris: Would we want to intrude
into private spheres? These families will have made all sorts
of private dispositions and settlements and so on, which presumably
would have to be revisited.
Q27 Stephen Williams: Perhaps
this is an area of law that I am not particularly competent in,
but it is not the property but the title that we are talking about.
The title currently gives political rights, until we eventually
reform the House of Lords—even the most basic sense of removing
hereditaries. Until we do that, the nearest top aristocrat to
my seat would be the Duke of Beaufort. I do not happen to know
who his children are, but let us just suppose there was a daughter.
Why then should a Duchess of Beaufort not be able to sit in the
House of Lords any more than the Duke of Beaufort? You would not
say that a woman could not be the MP for Bristol West because
that would be outrageous.
Professor Blackburn: Well, another
way of looking at this is: does it really matter? Do these titles
really matter any longer?
Q28 Stephen Williams: They do
in the House of Lords, don't they? There's still 92 of them.
Professor Blackburn: Yes, but
the hereditaries will be cleared out very soon.
Stephen Williams: Will they?
Professor Blackburn: But unless
there is some large landed estate involved, and that is becoming
increasingly rare with death duties, does it really matter how
much you really want to be called a viscount or whatever? I think
that the social status of this is in decline, although some people
might still love it.
Incidentally, this also says something about
the position of the King and Queen today, because some people
look at the fairness or unfairness with respect to the person
who has to be King or Queen, but the situation has changed vastly.
The position of King or Queen is not as enjoyable as it used to
be, to put it mildly, and the disqualifications do not mean that
they cannot be a Catholic or whatever, just that they will not
be King or Queen. That might not be such a bad prospect for some
people these days. The job of a head of state is extremely laborious.
There is no retirement as such, and, as we have seen over the
last few days, the levels of intrusion from the mass media can
be quite horrendous.
Q29 Stephen Williams: Conservative
Members and fellow members of the coalition may want to put their
fingers in their ears at this point. For the aristocracy, not
the head of state, does it comply with the Human Rights Act 1998
to say that a woman cannot become the Duchess of Beaufort and
sit in the House of Lords?
Dr Morris: I believe that it does,
because the relevant provision applies only to the rights that
are in the legislation itself and not more widely. But I think,
as Robert has pointed out, some of these points do collide with
the tendency for equality in other legislation that Parliament
has passed. Classically, I think these are matters for Parliament
to decide.
Professor Blackburn: There is
the embryo of a legal argument there. It is a better one than
suggesting that the Catholic—or possibly gender—disqualifications
relating to the monarch are in breach of the Human Rights Act.
I think the religious ones in particular could be justified upon
the basis of the established Church, and you have to bear in it
mind that there is a margin of appreciation. The European Court
of Human Rights will take into account indigenous circumstances
and the political system as it operates, and, of course, the Government
at the moment are trying to widen the margin of appreciation.
So there is the embryo of an argument there about discrimination
in holding a public office, but I would not be confident about
whether it would succeed.
Chair: Eleanor, you wanted to come back
briefly before I call Chris.
Q30 Mrs Laing: Would it be practical
simply to remove any legal requirement for the way in which a
title was passed by primogeniture and allow a particular aristocrat
to decide who should be his heir? Would that get around the problem
of families having, at this point, made plans that are difficult
to unravel and give them the choice? There are some enlightened
dukes.
Professor Blackburn: This would
relate to the title?
Q31 Mrs Laing: Yes. No, actually
it could not relate to the title only, because it may also have
to relate to the passing on of property.
Dr Morris: Passing on a property
is not governed by the passage of a title.
Professor Blackburn: Unless there
is an entailed interest or something like that.
Mrs Laing: Unless there is an entail.
That is what I meant.
Dr Morris: But that would be a
matter for the private resolution of the family not for the public
law quality of the title.
Professor Blackburn: I think you
could possibly legislate with respect to the title, but you are
entering the area of trust law and property law otherwise.
Mrs Laing: I think that answers my question.
It is complicated.
Q32 Fabian Hamilton: But if, as
Stephen says, the title confers the right—in 10% of cases—to
sit in the House of Lords and therefore have a say in the legislation
in this place, that actually might be very relevant, and I think
your solution is probably extremely good. Remove the barriers
and let the families decide.
Mrs Laing: Exactly. And there are some
enlightened dukes.
Professor Blackburn: Should that
happen to the royal family as well?
Mrs Laing: Exactly. Thank you.
Q33 Mr Chope: None of these changes
will actually make any difference in substance for 50 or 60 years
at the earliest, so I come to this thinking that this is just
a cynical exercise in gesture politics.
First, is it correct that the Cook Islands and
Nauru are realms that were not consulted about this? Secondly,
does this whole proposal not avoid the big issue, which is one
of potential abdications, because abdications require the consent
of all the realms? It is probably more likely that a scenario
may arise where the monarch wishes to retire because of age or
ill health, or a successor wishes not to take on the crown because
he wishes to embrace the Roman Catholic faith, or a daughter entitled
to the succession might say: "No, I think it is right that
my brother should be able to take over, because I believe in male
succession." There are a whole range of different scenarios
that may result in an abdication. Since an abdication is potentially
much more of an issue in the next 50 years, why are we not addressing
the issue of abdication? Why are we not introducing more freedom
of choice into this whole concept?
As Professor Blackburn was just saying, it is
not necessarily an easy job to take on the job of being the constitutional
head of state of a large number of countries. Why can we not say
to the royal family that they can sort out who will take over
among themselves, rather than having these very rigid rules about
primogeniture? Although it is not male primogeniture, it is retained.
Why can we not have a lot more flexibility about which member
of the royal family should take over from his mother or his father?
Professor Blackburn: That is an
interesting point. It is a good example of how this change might
throw up other issues that should be discussed during the passage
of the parliamentary Bill. In a sense, the royal family have a
system that they agree among themselves, which is male primogeniture.
But now this is what they are changing, and the Queen has indicated
that she agrees with the change.
One important aspect of the change that is taking
place and for the working group led by New Zealand is that they
will create a useful precedent for the future in how you go about
any changes to royal succession. This could handle or deal with
a retirement or an abdication.
Q34 Mr Chope: So the terms of
reference of the working group enable it to go into issues of
abdication.
Professor Blackburn: No. No one
politically wants to contemplate abdication or retirement, because
it would create difficulties and raise other things that would
make this reform more controversial. At the moment the move seems
non-controversial, and I do not think that they will want to take
on board any issues that will broaden the debate and make it more
controversial and therefore more problematic.
Q35 Mr Chope: But surely the counter-argument
to that is that the reason that this has been brought forward
at this stage is because nobody knows whether the latest royal
couple will have children and, if so, whether the first-born will
be a male or a female. We can discuss this in neutral terms. At
the moment, there is no suggestion that anybody wants to abdicate
or retire, so surely it is better, therefore, to discuss those
issues in a neutral situation, rather than have them thrust upon
the realms if they should suddenly arise.
Professor Blackburn: I absolutely
agree. Making major constitutional reforms is best done when temperatures
are cool and you can be rational and non-emotive about it. On
that basis, you can probably get cross-party support. Unfortunately,
that it is not how constitutional change happens in this country.
I wish it did. There is a strong argument for agreeing a set of
underlying principles for our political and constitutional arrangements
and agreeing an established procedure for constitutional amendments,
as opposed to the ad hoc way some are pushed through, because
of an emergency, however important they are. Others may be subject
to a referendum, where there are no established procedures.
I very much favour a change. It may come, because
there are increasing numbers of people who support the viewpoint
that it is better to make constitutional changes on principle.
There are some developments towards codification and tying up
loose ends, but it is painfully slow, and most of them still take
place on an ad hoc basis and that is still the approach of this
Government.
Dr Morris: And without any existing
machinery. There is no machinery to do this. These issues in the
past have been considered only on the death of the sovereign.
Then, the Scottish oath has been sworn before anyone has turned
around. The muddle over altering the coronation oath in 1936-37
is awful to read about. In the end, it produced something that
made the monarch swear that they supported establishment throughout
the United Kingdom, which was not intended, but it was what the
oath said. Happily, that was not repeated in the oath in the Regency
Act 1937. I strongly support what Robert has said and what you
are hinting at. One of the good things to emerge from the current
round of discussions is that it might precipitate now some more
continuous machinery. At the moment, this group of officials has
no remit other than to address the two proposals that the Prime
Minister tabled on 28 October.
Professor Blackburn: It might
be worth adding that this is the type of thing that university
departments do as well. There are quite a few—some written
by myself!—sensible articles envisaging these types of situation
and how retirement and abdication might be handled.
Q36 Mr Chope: Have you got an
answer about Nauru and the Cook Islands?
Dr Morris: They are not realms
in themselves; they are dependencies of realms.
Professor Blackburn: I believe
that there is a recognition that whoever will be regarded as the
head of state in New Zealand will also be regarded as such in
the Cook Islands. I do not think that any political difficulties
will emanate from the Cook Islands.
Chair: Does anyone else want to come
back at all? In that case, unless you want to make some final
summation, we would like to thank you for—
Mrs Laing: Of course, there might be
something that you have missed in this can of worms. There are
undoubtedly some hiding down there that we have not thought of
yet.
Q37 Chair: No doubt you will have
a chance to have a little think once you have left the Committee,
so feel free to send in additional information.
Professor Blackburn: I was intending
to send you a written memorandum by next Monday. I will do so
if you would still like that.
Chair: That would be helpful. Thank you
very much, Robert and Bob, for coming along this morning. Thank
you colleagues.
| 
