House of Commons - Political and Constitutional Reform Committee

Rules of Royal Succession - Political and Constitutional Reform Committee Contents

Written evidence submitted by Professor Robert Blackburn, PhD, LLD, Professor of Constitutional Law, King's College London

THE RULES ON ROYAL SUCCESSION: THEIR NATURE, APPLICATION, AND REFORM

I have been requested by the Committee to provide it with a written report, presenting a discussion and analysis of:

— the proposed changes to the rules on royal succession announced at the Commonwealth Heads of Government meeting;

— the present rules on succession to the Crown explained;

— the provisions of the Royal Marriages Act, and framing their reform;

— the process of implementing the proposed reforms in the UK and across the Commonwealth realms; and

— the wider public implications of the Government's proposed changes, and related areas where opinion on reform has been expressed in recent times.

1. THE PROPOSED CHANGES TO THE RULES ON ROYAL SUCCESSION ANNOUNCED AT THE COMMONWEALTH HEADS OF GOVERNMENT MEETING

The reforms agreed in principle between the Heads of Government of the Commonwealth realms (as the countries retaining the Queen as their Head of State are known), as issued in their joint statement at Perth in October 2011, were to remove the male preference in line to the throne; and to remove the disqualification applicable to a monarch or person in line to the throne if they marry a Roman Catholic.

The official statement read:

Statement of Friday 28 October issued at Perth following a meeting of the 16 Realms of HM Queen Elizabeth II

The Prime Ministers of the 16 Commonwealth nations of whom Her Majesty the Queen is Head of State have agreed in principle to work together towards a common approach to amending the rules on the succession to their respective Crowns. They will wish unanimously to advise The Queen of their views and seek her agreement.

All countries wish to see change in two areas. First, they wish to end the system of male preference primogeniture under which a younger son can displace an elder daughter in the line of succession. Second, they wish to remove the legal provision that anyone who marries a Roman Catholic shall be ineligible to succeed to the Crown. There are no other restrictions in the rules about the religion of the spouse of a person in the line of succession and the Prime Ministers felt that this unique barrier could no longer be justified.

The Prime Ministers have agreed that they will each work within their respective administrations to bring forward the necessary measures to enable all the realms to give effect to these changes simultaneously.

Additionally, the UK Government has let it be known that it intends to amend the Royal Marriages Act 1772 which requires members of the royal family to obtain the consent of the monarch before they may enter into any marriage.[1]

As there is a need to coordinate the necessary legal work across the 16 Commonwealth realms, the New Zealand Government is leading a working group on the preparation and implementation of the necessary legislation and procedures to be followed. It is expected that for historic reasons, the UK will publish its legislation in advance of the other realms, and David Cameron said that this would take place in the next parliamentary session, 2012-13.

The public statements of key participants at the Commonwealth meeting were upbeat about the reforms and about there being no difficulties about the processes involved. Australia's Prime Minister, Julia Gillard, said, "I am very enthusiastic about it—you would expect the first Australian woman Prime Minister to be very enthusiastic about a change which equals equality for women in a new area", adding that the changes appeared to be straightforward.[2] Mr Cameron was similarly enthusiastic, saying, "If the Duke and Duchess of Cambridge were to have a little girl, that girl would one day be our Queen. The idea that a younger son should become monarch instead of an elder daughter simply because he is a man, or that a future monarch can marry someone of any faith except a Catholic, this way of thinking is at odds with the modern countries that we have become".[3]

2. THE PRESENT RULES ON SUCCESSION TO THE CROWN EXPLAINED

The rules on who becomes monarch, and how succession to the throne and therefore Head of State takes place, are derived from a mixture of feudal common law principle, ancient parliamentary statutes, and constitutional custom.[4]

Accession practice

In ancient legal theory "the monarch never dies". To use the more popular expression, "The King is dead, long live the King!" At the very moment George VI died in his sleep at Sandringham during the early hours of 6 February 1952, his eldest daughter Princess Elizabeth, then visiting Kenya with her husband, the Duke of Edinburgh, instantly and automatically became Queen Elizabeth II. The same simultaneous process will occur at the death of Queen Elizabeth and assumption of the throne by King Charles III.

Contrary to popular imagination, envisaging grandiose, long-drawn-out ceremonial occasions through which the heir to the throne is acclaimed and crowned King, a coronation is not actually required before a person becomes King or Queen. Edward VIII reigned for 10 months as Head of State, without ever being crowned at a coronation ceremony. Royal books and articles discussing succession to the throne tend to dwell on the elaborate details of the assorted ceremonies that have accompanied the accession of a new monarch in the past. These are often written about as though there is some mandatory force to the traditions and customs of earlier accessions. In truth, however, most of the events accompanying or following accessions in the modern era, including in 1952, have simply followed what had happened the last time as a matter of habit, or resolution upon "how these things are done"—not a set of procedures prescribed by law.

Clearly some political process needs to supervise the change-over, so as to intervene in cases of difficulty. Most immediately, the Privy Council constitutes itself as an Accession Council, under the direction of the Government, represented by the President of the Council and the Lord Privy Seal, both of whom are Cabinet members and usually Leaders of the House of Lords and House of Commons respectively. Arrangements are made for the presence of high commissioners from the Commonwealth countries where the monarch is retained as Head of State, senior clergymen of the Church of England and ceremonial officers from the City of London, the Palace of Westminster and elsewhere. The traditional method of publishing the council's proclamation recognising the new monarch is by way of it being physically read out in various places, notably at St James's Palace in London by the Garter King of Arms, and being published in The London Gazette.

In 1952, the meeting of the Accession Council took place at St James' Palace within two days of George VI's death. On that occasion, as previously, the aristocratic peers of the realm were invited and played a high-profile role. Today, by contrast, the hereditary peerage has no role to play in the political processes of the country and since 1999 has lost its automatic right to membership of Parliament. It is impossible to imagine an identical procedure to 1952 being followed when the Queen dies, for both practical reasons and ones of constitutional modernity. It will be 10 Downing Street, not any aristocratic cabal, that is the political force for determining any dispute about royal lineage or suitability to succeed in the future.

The ultimate legal authority on matters relating to succession to the throne is Parliament. It has been a fundamental constitutional principle since 1689 that the common law of inheritance to the Crown is subject to parliamentary modification. As discussed below, two historic statutes, the Act of Settlement 1701 and Act of Union 1707, exclude Roman Catholics and persons marrying Roman Catholics from the succession. The monarch must be in communion with the Church of England, of which he or she is Supreme Governor, and must swear to uphold the established Church.

Common law male primogeniture

The hereditary principles of monarchy are ones of primogeniture: eldest preferred, sons before daughters. If the heir apparent (Prince Charles) predeceases his parent on the throne (Queen Elizabeth), then the heir of the heir apparent (Prince William) takes in preference to the next remaining child (Prince Andrew) of the reigning King or Queen. The order of succession among the Queen's issue at the time of writing is therefore Prince Charles, then in turn his sons Prince William and Prince Harry; Prince Andrew, then his daughters Princess Beatrice and Princess Eugenie; Prince Edward, then his son Viscount James Severn and daughter Lady Louise Windsor; then the Princess Royal, and her children Peter Phillips and Zara Phillips.

One theoretical legal conundrum arose in 1952 upon the death of George VI. Strictly speaking, according to the feudal property law of primogeniture, if there are no sons and more than one daughter of the departing monarch, then the daughters are considered equal in law, regardless of age, and succeed to their father's estate jointly. This combination arose for the first time ever in 1952, when King George left two daughters, the Princesses Elizabeth and Margaret. However, no claim was made by Princess Margaret, or others on her behalf, for joint sovereignty. The Accession Council avoided the practical nonsense of having two sisters as joint Heads of State by simply proclaiming Elizabeth the sole Queen, and Parliament then confirmed this royal succession.

Gender equality: removing the sex discrimination

Today, the practice is condemned of treating some people less favourably than others on grounds of their gender or sexuality in virtually all matters of a public nature, especially in holding public office. The principle is enshrined in post-war UK statutes, most recently the Equality Act 2010, and in western international human rights treaties such as the European Convention on Human Rights. Clearly, in this context, the present male preference in the law of succession to royal and aristocratic titles looks an anomaly.

Furthermore, most of the other European monarchies have corrected their law to implement gender equality in their royal succession. In 1980 Sweden became the first of the European constitutional monarchies to do so, and this was followed shortly afterwards by the Netherlands in 1983. This was followed shortly afterwards by Norway in 1990 and Belgium in 1991. Most recently, Denmark followed suit in 2006 after a referendum on the matter. A similar reform for the Spanish monarchy has the support of the main political parties, but has not yet been introduced.

Unsurprisingly, therefore, there have been numerous calls to remove this item of sex discrimination, including from parliamentarians in both Houses of Parliament, so that it would become simply the eldest child of the monarch who succeeds to the throne. I myself argued this case in 1992 in an article on "The Future of the British Monarchy".[5] So too has my friend and colleague Professor Vernon Bogdanor.[6] Several Private Members' Bills have been presented to Parliament on this matter since, such as by Lord Dubs[7] and Keith Vaz.[8] Of special interest is that on one such occasion, where consideration was given by the House of Lords to a Bill presented by Lord Archer, the minister responding on behalf of the Government made it know that the Queen personally approved of the reform. Lord Williams told the House:[9]

I should make it clear straight away that before reaching a view the Government of course consulted the Queen. Her Majesty had no objection to the Government's view that in determining the line of succession to the throne daughters and sons should be treated in the same way. There can be no real reason for not giving equal treatment to men and women in this respect.

When challenged by a peer that it was constitutionally improper for the views of the monarch to be made public on legislation before the House, Lord William replied that the text of his speech "has been specifically cleared with those to whom reference has been made".

The disqualification of Roman Catholics from the Throne

The law on royal succession demands of a monarch active participation in the Anglican Protestant faith, of which he or she is ex officio Supreme Governor and Head, and it disqualifies from the royal office of Head of State anyone who is a Roman Catholic or who marries a Roman Catholic. Succinctly stated, the provisions imposed by law on the person who would be monarch are that he or she:

— cannot be a Roman Catholic;

— cannot marry a Roman Catholic;

— must make a public declaration that he or she is a Protestant;

— must join in communion with the Church of England; and

— must swear to maintain the established Churches of England and Scotland.

The sources of these limitations lie in a number of ancient statutes, the most important of which are the Bill of Rights 1689, the Act of Settlement 1701, the Act of Union 1707 and the Accession Declaration Act 1910.

The exclusion of Roman Catholics from the throne was first laid down in the Bill of Rights in the following terms:

Whereas it hath beene found by experience that it is inconsistent with the safety and welfaire of this protestaant kingdome to be governed by a popish prince or by any King or Queene marrying a papist the said lords spirituall and temporall and commons doe further pray that it may be eneacted that 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 uncapeable to inherit possesse or enjoy the crowne and government of this realme and Ireland and the dominions thereunto belonging or any part of the same or to have use or exercise any regall power authoritie or jurisdiction within the same [And in all and every such case or cases the people of these realmes shall be and are hereby absolved of their allegiance][10] and the said crowne and government shall from time to time descend to and be enjoyed by such person or persons being protestants…

The same disqualification was reiterated 12 years later in the Act of Settlement 1701, a statute with a generally much wider remit over the succession.

The principal purposes of the Act of Settlement were to combat the claims of the Catholic Jacobites to the throne and to secure a long-term Protestant succession. The problem Parliament faced was that neither William III and Mary II, nor their prospective successor, Princess Anne of Denmark, who subsequently became Queen Anne, had any heirs. In the 1701 Act, therefore, Parliament re-routed the prospective succession back through James I's daughter Elizabeth, who had married Elector Palatine Frederick V, then through Elizabeth and Frederick's daughter Sophia, who had married Ernest Augustus, first Elector of Hanover. In 1714, on Anne's demise, Sophia and Ernest Augustus's son duly became King George I.

Were it not for the Act of Settlement, there would naturally have been a very different line of succession, ending up today very far removed from Elizabeth, Charles and William Windsor. After Queen Anne would have come James II's son the Old Pretender, as "James III", then Bonnie Prince Charlie as "Charles III". The line of descent would eventually have merged with the aristocratic rulers of Saxony and the doomed 20th-century Italian monarchy. Research by Hugh Peskett of Burke's Peerage in 2005[11] showed that the present monarch of the United Kingdom would have been "Queen Mary III", an Italian countess. Her son and heir to the throne, in Prince Charles's place, would succeed her as "King Uberto I", whose actual name is Uberto Omar Gasche; he was born in 1951 and works in Rome as a dog breeder and photographer.

The royal declaration of Protestant faith

The Bill of Rights in 1689, in addition to its prohibition of Catholics from the throne, also laid down the requirement for a solemn public declaration of non-belief in the Roman Catholic faith to be made by a new monarch. This could be on the first day of the meeting of the first Parliament of his reign, the King or Queen speaking from the Throne in the chamber of the House of Lords, with members of the Commons and Lords assembled there. Or alternatively, it could be during the new monarch's coronation ceremony, traditionally held in Westminster Abbey.

In 1910 the royal declaration of faith was re-phrased by the Liberal Government under Herbert Asquith, in preparation for George V's coronation. The object was to remove unnecessary offence given to Catholics by the phraseology of the 1689 declaration, and to put the question of the King's faith in positive terms by simply expressing adherence to the established Protestant religion. As now required by the Accession Declaration Act 1910, the royal declaration reads:

I [monarch's name] do solemnly and sincerely in the presence of God profess, testify and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law.

Elizabeth II duly made and signed this declaration from the throne in the House of Lords, attended by both Houses of Parliament, on Tuesday 4 November 1952, in the period between her accession and her coronation. In due course, under the existing legislation, the future King Charles III will in similar manner have to testify and declare before Parliament that he too is "a faithful Protestant".

The monarch must be in communion with the Church of England

It is a requirement of the Act of Settlement 1701 "that whosoever shall hereafter come to the possession of this crown shall join in communion with the Church of England as by law established". This means that the King must not only profess the Protestant faith (as required by the Bill of Rights), but he must actively participate and join in Anglican communion and worship.

In testimony of the requirement, Elizabeth II in 1953, and both her parents before her when they were crowned King George VI and Queen Elizabeth in 1937, received communion from the Archbishop of Canterbury as an integral part of their coronation services. However, whilst it has certainly been customary for monarchs to take communion in this way, the wording of the Act of Settlement does not actually stipulate that it is an act which must be performed as part of the coronation ceremony.

The oath to uphold the established English and Scottish Churches

Later in the same year as the Bill of Rights, Parliament enacted the Coronation Oath Act 1689. This required, and still does, a separate declaration to be made by a monarch during his coronation ceremony, which is to maintain the established Anglican Protestant Church. In 1707, the Act of Union with Scotland modified the oath by adding a requirement with respect to Scotland, namely that the new monarch will swear to "inviolably maintain and preserve" the established Presbyterian Church government in Scotland.[12] The content of the coronation oath, then, as will apply to the monarch succeeding Queen Elizabeth II, under existing law is as follows:[13]

The Archbishop standing before him shall administer the Coronation Oath, first asking the King,

"Sir, is your Majesty willing to take the Oath?"

And the King answering,

"I am willing."

The Archbishop shall minister these questions; and the King, having a book in his hands, shall answer each question severally as follows:

Archbishop: "Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand … and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?"

King: "I solemnly promise so to do."

Archbishop: "Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgements?"

King: "I will."

Archbishop: "Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?"

King: "All this I promise to do."

Then the King arising out of his Chair, supported as before, the Sword of State being carried before him, shall go to the Altar, and make his solemn Oath in the sight of all the people to observe the premisses: laying his right hand upon the Holy Gospel in the great Bible (which was before carried in the procession and is now brought from the Altar by the Archbishop, and tendered to him as he kneels upon the steps), and saying these words:

"The things which I have here before promised, I will perform and keep. So help me God."

Then the King shall kiss the Book and sign the Oath.

The exclusion of those marrying a "papist": the case of Mrs Parker Bowles

The Bill of Rights 1689, as cited above, declares that "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 professe the popish religion or shall marry a papist shall be excluded" (emphasis added). The Act of Settlement 1701 repeated the same Catholic disqualification in broadly similar terms:

All and every person and persons, who shall or may take or inherit the said Crown, by virtue of the limitation of this present act, and 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 subject to such incapacities… (emphasis added)

A question of the possible application of these provisions to the royal marriage of Prince Charles on 9 April 2005 arose from Camilla Parker Bowles' (now the Duchess of Cornwall's) first marriage to Brigadier Andrew Parker Bowles, a Roman Catholic. Many thought that the two children of this marriage were brought up in the Roman Catholic faith, and that as a family the Parker Bowles's often participated in Catholic church services together. Indeed, many seemed to think, or simply assume, that Mrs Parker Bowles was herself a Catholic. For example, in December 2004 a leading article in the Spectator, under the editorship at that time of Boris Johnson MP, now Conservative Mayor of London, baldly stated as a matter of fact that "Camilla is a Catholic".[14]

However, it is important to note that the exclusionary provision that a monarch's spouse must not be a Catholic does not extend to satisfying the other various requirements that apply to the monarch. In particular, a monarch's spouse does not have to profess her or his Protestant faith, she or he does not have to join in communion with the Anglican Church, and she or he does not have to swear to uphold the established churches. The sole exclusion is that she or he must not be a "papist".

The issue then is how one ever determines what faith a particular person subscribes to, or to what church they belong as a member. There are no general legal tests or criteria by which to ascertain a person's religious affiliation under British civil law. Arguably an individual can nominate his faith perfectly freely, be it Anglican, Muslim, Catholic or Buddhist, from one day to the next. On this basis, national survey questionnaires often simply ask people what their religion is, without verifying it against any external legal test. And, more important, the Bill of Rights and Act of Settlement themselves fail to define or set any test for determining who is, and who is not, to be regarded as a "papist".

As regards the former Mrs Parker Bowles, now the Duchess of Cornwall, the official position is that she is a member of the Church of England. This was pronounced by Buckingham Palace in 2005 when asked to clarify the issue. The Archbishop of Canterbury will have established this, having agreed to give the royal union his blessing in an Anglican church service. The Prime Minister, the custodian of constitutional advice on the matter, will have done so too. All four quarters of the rectangle concerned, therefore—Clarence House, Buckingham Palace, Lambeth Palace, and 10 Downing Street—concurred that there is no problem arising from Mrs Parker Bowles's earlier marriage to a Roman Catholic. This, then, is a closed question, but it is a useful illustration of how the disqualifying provisions apply or not. And even if the Duchess of Cornwall were regarded as a Catholic, the pending reforms to be implemented by the Commonwealth realms will remove this bar to Prince Charles becoming King.[15]

A remaining observation is to point out that the present religious restriction on the spouse is limited only to the Roman Catholic faith. No such bar exists if the monarch marries a believer in any other faith, such as Islam or Buddhism.

3. THE PROVISIONS OF THE ROYAL MARRIAGES ACT, AND FRAMING THEIR REFORM

The Royal Marriages Act 1772 disqualifies members of the royal family, and indeed all the descendents of King George II which now runs into hundreds of people, from the line of royal succession if they enter into a marriage without first obtaining the reigning monarch's consent.

The ancestry of this rule is that under the ancient common law, the monarch has a duty and right of care over the upbringing of his or her close relatives, particularly children, grandchildren, nephews and nieces. This general authority over the royal family in times past tended to be exercised with regard to matters of education and tutors, choice of servants and the approval of marriages. The clarity and degree of seriousness with which the monarch could, if he or she wished, control the marital unions of his or her close relatives was buttressed by passage of the Royal Marriages Act in 1772. This statute, declaratory in effect of the existing law, was prompted directly as the result of George III's outrage at the unsuitable matches, in his eyes, of his two brothers: the Duke of Cumberland to Mrs Horton, and the Duke of Gloucester to Lady Waldegrave.

The provisions of the 1772 statute commence with a preamble declaring the principle that "marriages in the royal family are of the highest importance to the state, and that therefore the Kings of this realm have ever been entrusted with the care and approbation thereof". The way in which the statute was drafted was that after 1772, any member of the royal family, defined as any descendent of the then King's father, George II, had to obtain the formal written consent of the monarch in council before entering into matrimony. Without such consent, a ceremony of marriage entered into by a royal descendant of George II would be invalid:

No descendant of the body of his late majesty King George the Second, male or female, (other than the issue of princesses who have married, or may hereafter marry, into foreign families) shall be capable of contracting matrimony without the previous consent of his Majesty, his heirs, or successors, signified under the great seal, and declared in council, (which consent, to preserve the memory thereof is hereby directed to be set out in the licence and register of marriage, and to be entered in the books of the privy council); and that every marriage, or matrimonial contract, of any such descendant, without such consent first had and obtained, shall be null and void, to all intents and purposes whatsoever.

However, there is a proviso to this control by the reigning monarch over the marriages of his or her relatives. In the case of members of the royal family who are aged twenty-five or more, in the event of a refusal by the monarch they can effectively appeal over the head of the sovereign to the Houses of Parliament. Such a procedure under the Act operates by way of the royal member giving notice to the Privy Council of his or her intention to marry, and then waiting twelve months before going ahead and doing so, during which time it is open to Parliament to express its disapproval. If both Houses of Parliament do express their disagreement with the marriage, then again, any such ceremony entered into would be invalid. As worded, if a royal descendant,

... above the age of 25 years, shall persist in his or her resolution to contract a marriage disapproved of or dissented from, by the King, his heirs, or successors; that then such descendant, upon giving notice to the King's privy council … may, at any time from the expiration of 12 calendar months after such notice given to the privy council as aforesaid, contract such marriage; and his or her marriage with the person before proposed, and rejected, may be duly solemnized, without the previous consent of his Majesty, his heirs, or successors; and such marriage shall be good, as if this act had never been made, unless both houses of parliament shall, before the expiration of the said twelve months, expressly declare their disapprobation of such intended marriage.

It is worth noting that there is no system of approval of a monarch's marriage or re-marriage, so an heir apparent whose proposed partner is deemed unsuitable by his or her royal parent and Parliament can await accession and then go ahead. However, in such a situation, the monarch is always constitutionally subordinate to the opinion of the Prime Minister, and in 1936 King Edward VIII was obliged to abdicate in order to marry Mrs Wallis Simpson who was deemed unsuitable by the then premier Stanley Baldwin and dominion governments.

Over time, the literal state of the Royal Marriages Act, as regards its extent and the number of royal relatives affected, has become ridiculous. The proliferation of issue in descent from George II has become a veritable multitude, the great mass of whom the monarch can have no concern with. The Act's reach of control over royal relatives has gone far further than the common law, of which the Act in 1772 was intended to be confirmatory, ever contemplated.

Some people maintain that, as a piece of legal machinery applicable to today's monarchy, the Act as a whole has become an anachronism. A Private Member's Bill was presented to Parliament by Lord Dubs in the House of Lords and Ann (now Lady) Taylor in the House of Commons during the 2004-05 session, which sought to repeal the Royal Marriages Act in its entirety.[16] During the debate on his Bill in the Lords, Lord Dubs referred to the 1772 Act as "archaic", "badly drafted", "complicated" and "bizarre".[17]

The idea that there should be some form of constitutional control over who becomes the spouse of the reigning Head of State is self-evidently a prevalent one. It drove Edward VIII into abdication and exile in 1936, and it effectively prohibited Princess Margaret from marrying the divorcee Captain Peter Townsend in the mid-1950s. More recently, the same notion was the underlying assumption driving the extensive public debate and controversy on whether Prince Charles should marry Mrs Parker Bowles, which was eventually resolved with support from the Prime Minister and Archbishop of Canterbury. The logic behind this idea is that the partnership of the individual who is Head of State is a matter of public interest to the well-being of the Government and the country. The Head of State's consort is inter-woven into this public interest in good governance, for he or she has considerable de facto official, ceremonial and diplomatic functions to perform, and is likely to be the parent of the subsequent heir apparent. A comparative glance at monarchies elsewhere in the world indicates that similar notions often operate there too. Both Spain and Sweden, for example, have constitutional provisions debarring from the throne those who proceed with a royal marriage which is not approved by the Government.

There is no question but that the Royal Marriages Act is in need of some modernisation. Obviously there is no need for the hundreds of descendants of George II now covered by the Act's requirement to have the suitability of each and every one of their marriages to go through a formal legal process involving the Head of State and the Privy Council. The issue for the UK Government[18] in preparing its legislation on the matter is whether the Act should be repealed altogether, or whether it should be replaced by a new formal procedure, which might also apply to the monarch, with the body responsible for giving permission moving to the government of the day. If replaced, its scope over other members of the royal family could be limited simply to the children of the reigning monarch and those of the heir apparent. Alternatively, the limitation could be by reference to a specific number of persons who are at the top end of the line of succession to the throne at the time in question. If this revisionary approach to reform were adopted, it would make sense for refusal of permission to have the effect of disqualifying that person from the Throne and line of royal succession, rather than nullifying the marriage itself.

4. THE PROCESS OF IMPLEMENTING THE PROPOSED REFORMS IN THE UK AND ACROSS THE COMMONWEALTH REALMS

In theory each of the Commonwealth realms could have their own indigenous laws governing the royal succession, which would eventually lead to different persons being the royal Head of State in different parts of the globe, but in practice this would be nonsensical and undermine other forms of association that exist between the UK Government and the realms, however limited or symbolic in nature they may be. Such divergence and fragmentation of the Crown has in fact happened before, in 1837 concerning the kingdom of Hanover, from where King George I had come to the British throne. Under its national Salic law, which excluded females from the dynastic succession altogether, upon the death of William IV it was Queen Victoria's uncle, rather than Victoria herself, who succeeded to the Hanoverian throne.

From a UK's perspective, it is the Statute of Westminster 1931 which represents the key possible constraint upon its freedom of action in legislating for the changes announced in October. This Act of the Westminster Parliament codified the principles agreed in the Imperial Conference declarations of 1926 and 1930, about the relationship between the UK and the dominions,[19] being the self-governing nations retaining the UK monarch as their Head of State.

Since then, the British Empire continued to unfold, with former colonies gaining independence, and the Commonwealth of Nations was formed following the London Declaration in 1949 as a more formal body to maintain links between those countries which had formerly been part of the British Empire. There are now 53 member states, almost all of which were formerly subject to UK Government, with 15 having Queen Elizabeth as their Head of State along with the UK.

The effect of the 1931 Act is to stipulate a procedure for prior agreement by the other Commonwealth realms before any Act of the Westminster Parliament can come into legal effect in the UK or elsewhere to change the royal succession. This procedure is that all the Parliaments of the realms must give their assent. Thus paragraph 1 in the preamble states:

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.

As this provision is in the preamble, rather than the text, of the Act, the rule or procedure it dictates is in the nature of a constitutional convention, and was expressed in 1931 to be "in accordance with the established constitutional position of all the members of the Commonwealth in relation to one another". Insofar as more countries have gained independence since then, and dominion status has been replaced by that of membership of the Commonwealth since 1949, the construction and evolution of this convention today is generally accepted as requiring the consent of all the Commonwealth realms, ie the countries that retain the UK monarch as Head of State.

The nature of any constitutional convention is that it is non-legal in nature and binding in a political sense only. So could the UK ignore the convention and legislate for itself if other Commonwealth realms for any reason will not give their consent? The answer to this is legally, yes. The political consequences of the breach of convention would depend on the extent of the disagreement. If there was substantial disagreement—which in appearance at least is clearly not the case following the 2011 agreement by the Heads of Government of the realms—it would precipitate an international crisis for the continuation of the Commonwealth. If the disagreement came from only one or two members, the constitutionality of the UK going ahead anyway could be politically settled at another Heads of Government meeting to resolve the matter, if needs be by an agreed declaration that the convention did not require unanimity in the particular circumstances arising (for example, if one country not in agreement was intending to set itself up as a republic in the near future).

On legislating for the change in each of the Commonwealth realms, for historic reasons it would be good practice for the United Kingdom Bill to state that its provisions have been requested and agreed by the other Commonwealth realms. This is because some of the national constitutions of the realms refer back to UK law in its provisions on royal succession, and both in the Preamble to the 1931 Act and in its section 4 it is a requirement that no Act of the UK Parliament shall become part of the law of a Dominion unless it is expressly declared in that Act that that Dominion has requested and consented to the enactment. However, all the realms are independent, self-governing states, with their own national constitution, and to effect the changes in each of those countries each of the realms will have to prepare their own national legislation and go through its own constitutional amendment procedures in order to implement the reforms within their own country.

Constitutional amendment procedures in the realms

The 16 Realms are the UK, Canada, Australia, New Zealand, Jamaica, Antigua and Barbuda, Bahamas, Barbados, Grenada, Belize, St Kitts and Nevis, St Lucia, Solomon Islands, Tuvalu, St Vincent and the Grenadines and Papua New Guinea. Because so many different countries and constitutions are involved, implementing the change will be organisationally challenging, mainly in terms of timing when all the various necessary steps are taken so a common commencement date is worked to. Not only does the UK need to harmonise its timing with the national legislatures of the realms, but any realm with a federal system of government may need to obtain the formal assents of its state legislatures. In some cases, a referendum may be necessary. If the Duke and Duchess of Cambridge are thinking of starting a family in the near future, which seems likely, some fairly swift work by the New Zealand working group and parliamentary counsel in the realms is needed.

The three major realms are Canada, Australia, and New Zealand.[20] In Canada, the necessary legislation may be enacted under the authority of either or both section 44 of the Constitution Act 1982 which provides that the Canadian Parliament "may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons", and the residual power in section 91 for Parliament to legislate for the peace, order and good government of Canada. A possible procedural problem exists in section 41 which stipulates that constitutional amendments to "the office of the Queen" can only be made by proclamation of the Governor-General where authorised by resolutions of the Senate, House of Commons, and legislative assembly of all the Provinces. However, the view can be taken that a change in the royal succession laws affects the office-holder rather than the office, and therefore the section 41 procedure does not apply: in which case, a simple Act of the Canadian Parliament is required.

How these provisions are to be construed and applied by the Canadian Government in preparing its legislation will largely be dictated by the attitude of the party leaders. Nonetheless it is not unlikely that some individuals in Quebec might seek judicial review of the constitutionality of any Canadian statute that does not go through the section 41 procedure of securing the express consent of all the provincial assemblies.[21] It would be a political opportunity for them to cause difficulties for the Government, using the occasion to provoke a wider debate about monarchy and the case for Quebec separatism. So far, no one appears to have raised this issue in Canada. Apart from the Quebec issue, there appears to be little interest in the royal succession laws in Canadian public opinion, and the changes are regarded as long overdue in most people's minds.

In Australian public opinion, there is currently a small majority supporting retention of the monarchy, coupled by an acceptance that it would be appropriate to move to a republic after Queen Elizabeth II. Republicans are unlikely to use the occasion to cause political difficulties, particularly as one of their key arguments has been criticism of the sexist and anti-Catholic selection process for the Head of State. There are a number of theoretical problems in the historical provisions of Australia's constitutional law, such as that section 2 of the Constitution appears to dictate that a UK monarch will automatically be monarch of Australia (contradictory to other constitutional provisions securing its self-governance), and that in theory the Queen could be regarded as the head of each state government as well as of the federal one. However, these difficulties are unlikely to be pursued outside the realms of academe.

The legislative procedure is therefore likely to be straightforward. Section 51 (xxxviii) of the Constitution of the Commonwealth of Australia 1900 and section 15 of the Australia Acts 1986 provide for an Act of the Australian Parliament to be passed "at the request or with the concurrence of" each of the state Parliaments, a form of cooperative federalism, and it is this provision that is likely to be relied upon for implementing the changes in royal succession. In practice, this concurrence might take the form of a similarly drafted bill being expressly passed in each of the state legislatures.

As a unitary state, the position in New Zealand is simpler. The terms of the Act of Settlement have been incorporated into New Zealand law by the Imperial Laws Application Act 1988, and may be amended by a simple Act of the New Zealand Parliament. There are a number of self-governing islands associated with New Zealand, such as the Cook Islands, with their own constitutional structures, but each in effect recognises whosoever is the New Zealand Head of State as being their own.

Across the other, much smaller, twelve realms there appears to be very little being said by party leaders and in the local news, and this might well be because they do not wish to stir the pot of monarchic rule in case it flairs up into a republican debate and causes political difficulties for them in their relations with the rest of the Commonwealth. There are strong republican movements, most notably, in Barbados and Jamaica. In 2005 the then Prime Minister of Barbados, Owen Arthur, announced plans to turn his country into a republic at the earliest opportunity, following a referendum which was to be held in 2008 but was deferred. Jamaica has a new Prime Minister, Andrew Holness, who has only been in office since October 2011, but his predecessor, Bruce Golding, promised to promote a cross-party plan to usher in a republic in time for the country's 50th anniversary celebrations of independence in 2012. In order to smooth the passage of the change in the royal succession laws, the UK and Commonwealth realms will need to take care not to excite or provoke republican sentiment generally.

5. THE WIDER PUBLIC IMPLICATIONS OF THE GOVERNMENT'S PROPOSED CHANGES, AND RELATED AREAS WHERE OPINION ON REFORM HAS BEEN EXPRESSED IN RECENT TIMES

The Catholic disqualification of a monarch

There will be those in Parliament who will wish the Catholic disqualification legislation in the rules on royal succession to go further. A widespread view is that the reform on Catholic disqualification is half-baked, applying only to the monarch's spouse, and it should apply also to the person who is monarch. There has been considerable support in recent times for the proposition that the ancient prohibition on Roman Catholics becoming royal Head of State should be abolished.[22] This view has emerged as part of the wider historical context in which Roman Catholicism is no longer viewed as a threat to the political security of the state, as it was at the time three centuries ago when the Bill of Rights and Act of Settlement were passed.

It has been argued that leaving these antique statutory provisions in force is offensive in terms of freedom of expression, religion and belief, and that the proper role of the monarchy should be to symbolise and represent the country as a whole. Indeed, according to this view, it is as symbolically offensive to discriminate in the royal succession law against a particular religious faith as it is upon grounds of female gender.

The case for retention of the existing prohibition is the formal position of the monarch as head of the Church of England as its Supreme Governor, and Anglican establishment. There is a high correlation between those who advocate repeal of the religious provisions in the Act of Settlement and those who favour disestablishment of the Church of England. Some have openly advocated disestablishment, and indeed this has been a Liberal Democrat general election manifesto commitment for some time. Their 2001 manifesto said that under their proposals "the Head of State will be able to be a member of any faith or none".

Others have simply remarked on the offensiveness of the discrimination, such as on the Conservative side Michael Howard ("it is an anachronism that Catholicism should be singled out") and Michael Forsyth ("the British constitution's grubby secret and nobody wants to tackle it"); and on the Labour side Tony Blair (who converted to Roman Catholicism shortly after resigning as Prime Minister in 2007) and John Reid ("as a Roman Catholic myself, I am only too well aware of the very deep feelings and passions which surround this issue"). Some attempted Private Members' Bills have been presented to Parliament to repeal the Catholic bar on a monarch, such as Kevin McNamara's Treason Felony, Act of Settlement and Parliamentary Oath Bill in 2001.[23]

The Scottish Parliament has passed resolutions calling for repeal of the anti-Catholic provision in the Act of Settlement, for example in 1999 resolving that it "believes that the discrimination contained in the Act of Settlement has no place in our modern society, expresses its wish that those discriminatory aspects of the Act be repealed, and affirms its view that Scottish society must not disbar participation in any aspect of our national life on the grounds of religion". In response to the Commonwealth statement on reform in October 2011, the Scottish First Minister Alex Salmond welcomed the news, but added it was "deeply disappointing" that Catholics were still barred from the throne. He said, "It surely would have been possible to find a mechanism which would have protected the status of the Church of England without keeping in place an unjustifiable barrier on the grounds of religion in terms of the monarchy... It is a missed opportunity not to ensure equality of all faiths when it comes to the issue of who can be Head of State".[24] Naturally, senior members of the Catholic church in the UK have often protested publicly on the subject too.[25]

Disestablishment of the Church of England would automatically bring to an end the religious requirements and Catholic disqualification applicable to a British monarch. This is an especially problematic subject for the present monarch, Queen Elizabeth. She has sworn in her coronation service to uphold and maintain the Church. She has shown every indication of being a totally committed Anglican, dedicated to her position as Supreme Governor of the Church, highly conscious of its hugely important historical background. Formal breaches of the oath by previous monarchs have occurred before, such as when the Church of England was disestablished in Wales in 1920, and when the sister Church of Ireland was disestablished in 1871. But disestablishment of the Church of England in England—and in its entirety—strikes at the very heart of the monarch's solemn oath on taking office. It may well be that any move towards either or both reform of the Act of Settlement and disestablishment of the Anglican Church would be subject to considerable institutional resistance from the Queen and the Royal Household.

Interestingly, it seems that the future monarch, Prince Charles, is in favour of removing the relevant discriminatory provisions in the Act of Settlement. He may even support the case for disestablishment of the Church of England, or at least for transferring the headship and supreme governorship of the Church from the monarch to some other body. As he is famously known for saying, as King he wants to be seen by the country as the "defender of faith", not "Defender of the Faith". He expressed this view publicly in a BBC television interview with Jonathan Dimbleby. Of his future position as head of the Church of England, he said,[26]

I personally would much rather see it as "defender of faith", not "the Faith", because it means just one particular interpretation of the faith, which, I think, is sometimes something that causes a great deal of a problem. People have fought each other to death over these things, which seem to me a peculiar waste of people's energy when we are all actually aiming for the same ultimate goal.

A further expression of the future King's opinion on the matter has been given to us by Paddy (now Lord) Ashdown, the former leader of the Liberal Democrats, in his diaries published in 2000. In these, Mr Ashdown recounts travelling back on a flight from Israel five years earlier, where he and others had attended the funeral of the former Israeli Prime Minister Yitzhak Rabin. On board and engaging in the discussion with Lord Ashdown were Prince Charles, Tony Blair and Jonathan Sacks, the Chief Rabbi. The conversation turned to religious matters in the UK and the question of disestablishment of the Church of England, which Mr Ashdown expressed his support for. In response, Mr Ashdown records,[27] "Charles looked at me, smiled broadly and said, 'I really can't think why we can't have Catholics on the throne'."

A full analysis of church-state relations and disestablishment would require a separate, much longer memorandum. It is sufficient for present purposes to note that removing the Catholic disqualification for a monarch raises more immediate and deeper complexities than the proposed Commonwealth reform limited to the spouse of a monarch entail.

The hereditary principle in society

The proposed changes in the rules on royal succession raise the whole issue of how we select our Head of State in the UK, and whether an hereditary system is still appropriate in contemporary conditions. However, popular support for the monarchy in the UK under Queen Elizabeth II is strong, and republicanism is at a lower level even than what it was towards the end of the 19th century.[28] Even if republicanism is espoused quietly in principle by a significant number of Labour parliamentarians, such views are likely to remain tepid and pragmatic so long as the monarch retains strict political neutrality, does not misuse their position of influence, and avoids public controversy.[29]

Similarly, the proposed reforms raise the operation of the hereditary principle, and whether removal of male preference in succession to the throne should equally apply to the rest of the aristocracy in the UK. However, this has been firmly ruled out by the UK Government. The government leader in the House of Lords, Lord Strathclyde, responded to a question on this by saying,[30]

The Government have no current plans to change the laws of succession with regard to hereditary peerages. Changes to the law on succession to the throne can be effected without any change to the legitimate expectations of those in the line of succession. Changes to the rules governing succession to hereditary titles would be far more complicated to implement … The Government believe that it is time to deal with the issue of succession to the Crown, and there is no simple read-across to succession to the hereditary peerage, which is infinitely more complicated and affects many more families.

Lord Strathclyde's point that such a change would affect a large number of families is well-taken, particularly as it is likely to be unwelcome in many of the families concerned, if they are of a conservative disposition and attached to family historical traditions. This issue in any event will diminish in importance when the hereditary peerage is removed altogether from the parliamentary second chamber, as is proposed in the Government's present draft Bill on House of Lords reform.[31] The status and social importance of an hereditary aristocratic title in society generally is diminishing too, and ownership of the title of earl, viscount, etc, is poised to become an historical curiosity, with family squabbles over entitlement reserved to a few cranks. On the continuing creation of peerages as a form of honour for distinguished service to society, despite the then Prime Minister Margaret Thatcher's extraordinary revival of the hereditary principle when she created two hereditary viscountcies and an earldom in 1983[32] (for William Whitelaw, George Thomas, and Harold Macmillan respectively), newly-created titles today and in the future are certain to remain lifetime ones only under the Life Peerages Act 1958.

Retirement, abdication, and skipping a generation in royal succession

The manner in which the proposed changes are put into effect across the Commonwealth realms will provide a useful precedent for any situation arising in the future, when a monarch or heir apparent might wish to retire, allowing the royal succession to pass to the next in line to the Throne. It has often been suggested, for example, that as time passes Prince Charles might wish to do this, allowing his son, Prince William, to become King in his place. If the scheme of constitutional amendment in the UK and in the realms proves successful, as it looks almost certain to be, it can be repeated to carry out the wish of any monarch to retire as Head of State and/or the heir apparent to relinquish their place in royal succession.

On the possibility of this happening in the UK, it is worth clarifying the constitutional context today. It is true that the weight of tradition and custom rests heavily against the idea of changing the person who is next in line to the throne, unless there are circumstances of disqualification, legal or constitutional. Automatic succession from one generation to the next has been regarded as fixed practice. The official line from Buckingham Palace or any other official royal source has so far not departed from this doctrine or entered into any discussion on matters of retirement or passing the Throne onto the second in line in succession, when the heir apparent has become elderly or otherwise has no wish to perform the onerous duties and functions of Head of State. By contrast, such a procedure is regarded as normal in the Netherlands, where Queen Beatrix in 1980 succeeded her mother Queen Juliana when she voluntarily abdicated at the age of 70, and earlier in 1948 when Juliana became Queen after her own mother abdicated.

The weight of constitutional tradition today is of a far lighter nature than when Queen Elizabeth ascended the throne. In the immediate aftermath of the Second World War, as before it going back into the Victorian era, the British constitution operated as a hugely inert set of processes, almost entirely upon the basis of historical precedents that were universally praised and regarded as of near-biblical authority. Such veneration for the political ways of our past began to be seriously questioned in the 1960s, and over the period since has gone into a state of gradual decline. In short, many actions affecting the composition and working of our political system which would have been unthinkable fifty years ago are now to be evaluated upon the basis of existing circumstances, exigencies or advantage. There would certainly be nothing "unconstitutional" in putting into effect any future wish of Prince Charles that Prince William succeeds Queen Elizabeth, rather than he himself.

The detailed content and manner of the formalities would be relatively simple and straightforward. First, there would be a public declaration by the monarch or heir apparent, as the case may be, stipulating their intent and desire to retire or step aside, combined with their reasoning for doing so. Then, an Instrument of Renunciation—perhaps a better term than "abdication" with its negative historical overtones—would be signed by that person, witnessed by signatures of the closest members of the royal family. The necessary legislation could then be agreed and prepared by the UK Government and Commonwealth realms in similar manner to that being conducted at present.

Constitutional codification and the Crown

An ad hoc process of constitutional codification is currently taking place with respect to the Crown. In 2011 alone, the Cabinet Manual has sought to codify the conventions or understandings on the royal power of prime ministerial appointment, the Sovereign Grant Act has rationalised royal finances, and the Fixed-term Parliaments Act has codified general election timing and replaced the earlier royal power of dissolution of Parliament. In 2010 the Constitutional Reform and Governance Act put the royal prerogative power of treaty-making onto a statutory footing, requiring parliamentary consent. And now the rules on royal succession are partly to be rationalised, following the changes agreed by the Commonwealth realm heads of government last month.

These developments suggest that there is an appetite and readiness within government to embrace measures that rationalise the position of the Crown. It raises the question whether a more overarching codification of our constitutional law and conventions might be desirable, removing anachronistic provisions and updating our rules, practices and "grey areas" of convention in a coherent manner in tune with social mores today as well as political common sense. Certainly, the parliamentary passage of the Government Bill on royal succession in 2012-13 will be an historically significant event, as well as an opportunity for members in both Houses of Parliament to raise related constitutional issues and express their opinion on whether further measures of modernisation might be desirable in the near future.

November 2011

1 Confirmed to the Committee by Cabinet Office spokesperson, 21 November 2011. Back

2 BBC, 28 October 2011. Back

3 BBC, 28 October 2011. Back

4 What follows is dran from Robert Blackburn, King and Country, Politico's 2006. Back

5 Robert Blackburn (ed), Constitutional Studies, Mansell 1992, chapter 1. Back

6 Monarchy and the Constitution (OUP, 1995), pages 59-60, in which he also advocates repeal of the Catholic disqualifications on the monarch and spouse and reform of the Royal Marriages Act. Back

7 Succession to the Crown Bill, 2004-05, HL11. Back

8 Succession to the Crown Bill, 2010-12, HC133. Back

9 Lords Hansard, 27 February 1998, cols. 916-17. Back

10 Added by way of an appendix to the Act. Back

11 Times, 14 February 2005. Back