UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC1615-i

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

POLITICAL AND CONSTITUTIONAL REFORM COMMITTEE

RULES OF ROYAL SUCCESSION

THURSDAY 10 NOVEMBER 2011

PROFESSOR ROBERT BLACKBURN and DR BOB MORRIS

Evidence heard in Public

Questions 1 - 37

USE OF THE TRANSCRIPT

1.    

This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.

3.

Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.

4.

Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 10 November 2011

Members present:

Mr Graham Allen (Chair)

Mr Christopher Chope

Sheila Gilmore

Fabian Hamilton

Mrs Eleanor Laing

Mr Andrew Turner

Stephen Williams

Examination of Witnesses

Witnesses: Professor Robert Blackburn, Professor of Constitutional Law, King’s College London, and Dr Bob Morris, Honorary Research Fellow, Constitution Unit, University College London, gave evidence.

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, perhaps. 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 and in discussions on the monarch, 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 has something to tell us about the process of constitutional reform.

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. The 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 common law and the rules of royal succession and 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, which is the process of securing the other Commonwealth realms’ agreement to the changes and the 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, princess or 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, when is it going to be 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 Assent 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 or would it be the Queen herself? 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-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, in a sense, might happen anywhere 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 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 perhaps be a completely 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, perhaps. 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 as well. That’s the aspect that causes worry, but for those people who are quite happy living with the inconsistencies from our historical traditions or whatever, there’s no particular problem, I think.

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 perhaps more damaging in a sociological context. Republicans would argue that case. 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 10,000, 97% of whom are Presbyterians-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 to 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.

That has evaporated, but the understanding is that it 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, because it is well known to be republican. 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. That will the appropriate moment, and 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, perhaps, or 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 or whatever.

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 I should extend, perhaps, to public policy.

Professor Blackburn: As I understand it, the 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, 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? If you are doing it as a matter of symbolism, you are saying that the argument behind the provisions we are talking about now and which are going to be changed has been around for some time, but 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 difficult of course with death duties and all that type of thing, does it really matter how much you really want to be called a viscount or whatever? I think that the status of this is in decline, although some people might 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 so on but 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 Blackman 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 got a system that they agree to themselves, which is male primogeniture, which is what they are changing, because the Queen has indicated that she agrees with the change now.

One important aspect of the change that is taking place and 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 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 it seems non-controversial. 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 are subject to a referendum, where there is no particular procedure.

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 de facto developments towards codification and modification 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 three 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-one possibly 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.

Prepared 15th November 2011