Students of Public Law should be aware that some old staples have been culled from the syllabus, in the new version that takes effect in 2013/14. You might be tempted to think that royalty would have been culled as well, metaphorically speaking of course. After all, as far back as 1867 (in The English Constitution) the talented political journalist Walter Bagehot was demoting the monarchy to a merely “dignified” as opposed to an “efficient” function in constitutional arrangements.
However, the monarchy cannot be entirely ignored by today’s students. Constitutions, when they are being compared, may be classified as monarchical or republican, even if it is one of those distinctions that does not tell us very much on its own. In the discussion of constitutional conventions, the Sovereign features prominently in examples and in explanation. The role of the Sovereign in Parliament has to be noticed, and more generally the significance of the royal prerogative has to be appreciated, while recognising that the “royal” tag has become misleading, at least for most purposes.
A recent statute, the Succession to the Crown Act 2013, has brought some reforms to one aspect of the ancient institution. For some three hundred years up to now, succession to the throne has depended on rules which involved preference for males over females and religious tests as well as primogeniture. The diminishing number of Commonwealth countries that also accept the United Kingdom’s Sovereign as their Sovereign within a monarchical constitution – there are now 15 other such “realms” – followed the same rules.
Previous governments in the last twenty years had fought shy of reform, their disinclination probably for practical and political reasons rather than because of opposition to the principle. Even Tony Blair, in his hotchpotch efforts to modernise, had not meddled with the monarchy.
The discriminatory aspects of the succession law were, however, a blot on the constitutional landscape, and the coalition government deserves some credit for grasping the nettle that its predecessors had shunned. Having decided on their policy (and reportedly obtained the support of the Queen), the Prime Minister took it to the Commonwealth Heads of Government Meeting in 2011 in Western Australia, and secured wider consent, expressed in the Perth Agreement. The Act of 2013 is the domestic sequel, with the other 15 states amending their constitutions or laws in conjunction.
Sex discrimination was one of the targets. Under the law as it stands, for example, the Queen’s daughter, the Princess Royal, ranks below all of her brothers in the succession, even those who are younger, and below all the children of all her brothers. Her position is not altered by the new law, but scroll down though two generations and, under section 1 of the Act, “the gender of a person born after 28 October 2011 does not give that person, or that person’s descendants, precedence over any other person”. One reason for fast-tracking the legislation at Westminster was the Duchess of Cambridge’s pregnancy although, as it turned out, the first baby born to the couple, on 22 July 2013, was male.
Another scar on the face of the law lay in the exclusion from the line of succession of anyone marrying a Roman Catholic. The bar derived from religious and political struggles of the sixteenth and seventeenth centuries, but had come to appear archaic and indefensible. Thus, for example the Queen’s cousin, Prince Michael of Kent, had been deleted from the line of succession when he chose to marry a Baroness of Austro-Hungarian descent who is a Roman Catholic. Princess Michael (as she became) was typically forthright in expressing her views on a law which meant “they can marry a Moonie, a Muslim, but not a Catholic”. Section 2 of the Act removes the disqualification on the ground of marriage to a Catholic.
Removal of another religious distinction was judged a step too far. It remains the law that the Sovereign (who is the head of the Church of England) must be in communion with that church, as provided in the Act of Settlement 1700. In a more liberal and more secular society, this constitutional nexus might conceivably have been up for debate. But the government’s preference was for a deliberately limited reform, so as not to stir up a hornet’s nest of religion and law issues. Similarly, there was no intention to open up other issues such as the sex discrimination that is prevalent in rights of succession to hereditary peerages, although the matter has assumed a slightly higher profile, perhaps less on account of the Act than of its being aired in the storyline of ITV’s Downton Abbey.
Thus the reforms made are neither comprehensive nor radical, but are gradual and right so far as they go.
This blog post was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh, who regularly teaches on the Laws Study Support sessions.