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.
It is great to know that the British Law is reforming at a moderate pace but with exceptional changes which will prove beneficial in the long run . There is no such thing as a MALE and a FEMALE in my point of view . All must be seen with the same spectacle , at a same pedestal and be treated on the basis of intellect and abilities rather than to be judged on the basis of caste,color,creed,sex & religion . At the end of the day we all are HUMAN BEINGS .
Last but not the least , a very well written , concise and to the point article .
To be a Catholic is, of course, to be aware since schooldays of the pernicious provision of the Act of Settlement 1701, whereby no Catholic, or anyone who married a Catholic, could succeed to the throne. To understand the reason for it, you need look no further back than the deposed James II and his son, James Francis Edward Stuart, born in St James’s Palace in 1688 as Prince of Wales, but known to history as The Old Pretender (to distinguish him from his eldest son, Bonnie Prince Charlie, or the Young Pretender). He could have ascended the throne after the death of his childless half-sister, Queen Anne, had he agreed to change his religion. To his eternal moral credit, he declined and lived out his long life in exile. After 312 years, the new Act explicitly recognizes the injustice done to one whose tomb in St Peter’s titles him “James III of Great Britain etc. and to the Stuart Royal family, for even the deaths of both James’s sons, Charles without legitimate issue and the younger, Henry, Cardinal York, did not make George I of Hanover and his descendants the legitimate heirs to the throne, except by virtue of the Statute, with no disrespect to her present Majesty. To that extent, the Succession to the Crown Act 2013 is to be welcomed as long, long overdue and it is understandable, given the Monarch’s historical, if unfortunate, position as Supreme Head of the Church of England, for which ‘reform” we have to thank that upright Sovereign, King Henry VIII, that the Monarch himself, or herself, should be communicant with the said Church.
This part of the new Act was, however, a relative afterthought and would never have been entered on the Statute Book on its own. The real purpose of the Act was to remove the so-called discrimination inherent in the rule of male primogeniture, which dates much further back than 1701, to the Conquest and before and which formerly excluded females altogether, in common with the Continental countries, at least until the succession of Mary I in 1553 (or Mary, Queen of Scots in 1542). Before declaring this rule, which has given us two long female reigns of over 60 years each and continuing, from 1837, with four male reigns of only 51 years duration altogether between, as “discrimination”, we ought to consider the sound and ordinary reasons why every family in the land subscribes to the same ancient rules and not only titled families. All children, almost without exception, take their father’s surname, sons to carry the family name forward to succeeding generations and daughters to marry the sons of other families and enable them to carry their name forward, perhaps double-barreling it, especially where there is no brother to carry it on, for example, Windsor Mountbatten, the House name likely to be taken by the next sovereign. Is that discrimination, or simple order and common sense? Why should the leading family in the land be prevented from following the same rules? What are the consequences of the unnecessary change? The welcome birth of Prince George has postponed the discussion, but no one can know who will actually live to succeed to the throne. Given the equal likelihood of a male or female firstborn, it means many more female successions. Every female succession brings a change of House. One of the great strengths of the Royal succession is the fact the present Queen can trace her descent from her Saxon, Norman, Plantagenet, Tudor, Stuart and Hanoverian forebears, despite the changes. In the future, this continuity is likely to be lost, with the throne passing to the House of Green, or Brown, say, whilst the Windsor Mountbattens continue, but lose the throne for ever. This is what will happen in Sweden and Belgium, by reason of similar legislation. Thus the present King of Sweden will be succeeded by his eldest daughter, not his son and the throne will be lost to the Bernadottes, who have held it for 200 years. The King of Belgium has two sons and two daughters, but the heiress is the eldest daughter and in the future the probability is that the House of Saxe-Coburg and Gotha will lose the throne they have held since the foundation of the State. Royalty has been considerably democratised and brought down to earth, as we have seen with the marriage of Prince William to Kate Middleton. This is very welcome, to a point, but with the new Act, something more is lost. The new rule will make for difficult female Sovereign marriages (it really will matter who they marry and at the same time, it will be very difficult to exercise any control. Young people are no longer so subject to parental pressure and rightly so), whilst it will make for male drones, titled persons with no role. The fact there will be no effect on other hereditary titles, some of which can descend through the female line, by reason of their mode of creation, is to be welcomed, for all the reasons adumbrated above, but the creation of an anomaly, with respect to the Royal family, is to be deprecated as a piece of modern feminist political correctness.