Report
Introduction
1. On 28 October 2011, the Prime Ministers of the
sixteen Commonwealth Realms[1]
announced that they had agreed to work together towards a common
approach to amending the rules on the succession to the throne,
with the aim of giving effect to the changes simultaneously in
all sixteen countries.
2. The announcement, which was extensively trailed
in the media earlier in the month,[2]
described two areas in which all sixteen countries wished to
see change:
i. to end the system of male preference primogeniture
under which a younger son can displace an elder daughter in the
line of succession, and
ii. to remove the legal provision that anyone
who marries a Roman Catholic becomes ineligible to succeed to
the Crown.
3. We understand—although this was not included
in the announcement—that agreement has also been reached
to reduce substantially the number of members of the extended
royal family who currently require the Monarch's permission, or
parliamentary acquiescence, to marry under the Royal Marriages
Act 1772.
4. On 10 November we took evidence from Robert Blackburn,
Professor of Constitutional Law, King's College London, and Dr
Robert Morris, Constitution Unit, University College London, on
the constitutional and practical implications of these changes.
This short Report is intended to inform the House of the issues
that emerged during our evidence, before legislation implementing
the changes is introduced in the next Session. We are grateful
to both of our witnesses, and to Professor Blackburn for his detailed
written evidence.
Complexity and international impact
5. Changing the rules of succession is technically
and logistically complicated, and will require close co-ordination
between the Realms. Our witnesses did not think, however, that
this complexity would obstruct the proposals. Dr Blackburn told
us that the change was likely to be "straightforward".[3]
Dr Morris agreed, saying that "with good will", he was
"sure" that "local complexities" could be
"overcome".[4]
6. Some of the Commonwealth Realms have republican
movements. The process of implementing these changes is likely
to lead to further questions in those countries about the Monarch's
position as Head of State. Professor Blackburn told us that he
was surprised at the lack of media coverage of the announcement
in the Commonwealth Realms, but that "whether they [republicans]
want to make something of this occasion remains to be seen".[5]
Religion and establishment
7. The Government intends to remove the legal provision
that prevents anyone who marries a Roman Catholic from succeeding
to the Crown. There are no current proposals to alter the other
religious requirements that apply to anyone succeeding to the
Crown. These have been summarised for us by Professor Blackburn
as follows: the monarch "cannot be a Roman Catholic ... must
make a public declaration that he or she is a Protestant, must
join in communion with the Church of England, must swear to maintain
the established Churches of England and Scotland".[6]
8. The provision relating to marriage to a Catholic
dates back more than three hundred years to the Glorious Revolution
and Bill of Rights of 1688-89. It serves little if any contemporary
purpose, and is seen as an injustice, especially as there are
no other restrictions on the religion of the spouse of a person
in the line of succession. This lack of other restrictions is
almost certainly because the provision is so antiquated that the
marriage of a monarch to anyone of another religion was inconceivable
when it was drafted.
9. There is one possible consequence of allowing
a monarch to be married to a Catholic that might be considered
of contemporary relevance. Catholics are normally obliged under
canon law to bring up as Catholics any children from an inter-faith
marriage.[7] The proposal
thus raises the prospect of the children of a monarch being brought
up in a faith which would not allow them to be in communion with
the Church of England. This would prevent them from acceding to
the throne.
10. It is worth noting, however, that this requirement
of canon law is occasionally waived through papal dispensation,
and indeed has been waived for members of the royal family.[8]
An heir to the throne who was considering marrying a Catholic
could seek this dispensation before proceeding with the marriage.
The Monarch and Parliament could also prevent the marriage from
going ahead if they so wished, as for any royal marriage.[9]
It is also perhaps worth noting that Catholicism is not the only
religion to impose such a requirement.[10]
11. The scenario does, however, beg the question
of whether it remains appropriate for the monarch to be required
to be in communion with the Church of England. Dr Morris told
us that "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",[11]
and there has already been comment on these bans from the Scottish
First Minister and the leader of the Roman Catholic Church in
Scotland, with the former referring to "the unjustifiable
barrier on a Catholic becoming Monarch".[12]
The most obvious difficulty in having a Catholic monarch—beyond
the purely statutory obstacles—is the Crown's role as supreme
governor of the Church of England.
12. Dr Morris' point of view is that establishment
of the church "is not an inseparable package", and that
the monarch's role in it as supreme governor is essentially ceremonial:
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.[13]
13. The value of the oaths that a new monarch must
swear is questionable if, as Dr Morris puts it, they "require
the monarch to swear to do things that they are not in a position
to fulfil".[14]
The Queen at her Coronation promised, for example, to "maintain
in the United Kingdom the Protestant Reformed Religion established
by law" and to "maintain and preserve inviolably the
settlement of the Church of England".[15]
Such promises do not sit comfortably with the notion of a purely
constitutional monarchy.
14. We welcome
the proposal that would allow a member of the royal family to
marry a Roman Catholic without losing their place in the line
of succession. The existing provision is anomalous in discriminating
solely against Roman Catholics and those who wish to marry them.
The proposal does, however, raise questions about the future role
of the Crown in the Church of England, which the House may wish
to consider in due course.
Primogeniture and the aristocracy
15. The
proposal to end the preferential treatment of men in the line
of succession has been widely welcomed, and with good reason.
It does, however, cast the spotlight on the hereditary aristocracy,
to which women are for the most part ineligible to succeed, and,
where they are eligible, male heirs take preference.
16. The Crowns of many other European monarchies,
including Belgium, the Netherlands and Sweden, succeed without
any male preference, while aristocratic titles in these countries
continue to be inherited through the male line. In Spain, in
contrast, the Crown for the moment continues to be inherited through
male-preference primogeniture, while since 2006, succession within
the Spanish nobility has become gender-blind.
17. In countries in which aristocratic titles no
longer confer any particular rights, duties or privileges, there
may be no compelling reason to alter an historic system of inheritance.[16]
In the United Kingdom, however, 92 seats in the House of Lords
continue for now to be reserved to holders of hereditary aristocratic
titles. Only two of these 92 seats are currently occupied by women.
While the holders of hereditary
peerages continue to be eligible for membership of the House of
Lords, the way in which their titles are inherited, and its effect
on the gender balance in Parliament, remain matters of public
interest.
Royal Marriages Act
18. It has been written of the Royal Marriages Act
that "there are, perhaps, few more absurd pieces of legislation
on the statute book".[17]
Under this statute, the marriage is void of any descendant of
George II (other than the children of princesses married into
'foreign families') who fails to seek the monarch's permission
to marry. The Act is likely now to apply to thousands of people,
many of whom have at most a tenuous connection to the extended
royal family, let alone to the throne. The
Royal Marriages Act is overdue for reform. We look forward to
seeing the detail of the Government's proposals in this area.
Conclusion
19. We welcome the changes agreed between the sixteen
Commonwealth Realms. It would be wrong to present the changes
as a major step towards modernisation. It is true, as Dr Morris
told us, that it is hard "to infuse logic into a system that
isn't logical".[18]
But people value having a hereditary head of state for the sake
of history and tradition and because it is a system that has generally
worked well, rather than because it is modern or fair. The changes
being proposed are modest, but they will remove two elements of
discrimination in determining the succession to the throne, while
maintaining its traditional hereditary character.
1 The Realms are the 16 members of the Commonwealth
that recognise the British Sovereign as Head of State: Antigua
and Barbuda, Australia, the Bahamas, Barbados, Belize, Canada,
Grenada, Jamaica, New Zealand, Papua New Guinea, St Christopher
and Nevis, St Lucia, St Vincent and the Grenadines, the Solomon
Islands, Tuvalu, and the United Kingdom. Back
2
Eg 22 October 2011:The Times, 'Equality agreed for royal
succession', Daily Telegraph, 'First-born daughter of Duke
will take throne' Back
3
Q 4 Back
4
Q 16 Back
5
Q 16 Back
6
Q 20 Back
7
See, for example, Dr William Oddie, Catholic Herald, 2
November, "Why shouldn't there be a Catholic 'Supreme Governor'
of the Church of England?" Back
8
for the children of HRH Prince Michael of Kent Back
9
Royal Marriages Act 1772 Back
10
Islam, for example, requires that any children of a Muslim parent
be raised Muslim. Back
11
Q 13 Back
12
http://www.scotland.gov.uk/News/Releases/2011/10/28122859 Back
13
Q 3 Back
14
Q 2 Back
15
Coronation Oath, 2 June 1953 Back
16
Q 28 [Professor Blackburn] Back
17
Vernon Bogdanor, The Monarchy and the Constitution (1995),
p 59 Back
18
Q 12 Back
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