Another guest post from Dr Bob Morris of the UCL Constitution Unit: this time an analysis of the new proposals for succession to the Crown
The Succession to the Crown Bill aims to achieve three things:
- primogeniture gender neutrality;
- removal of marriage to Roman Catholics as a disqualification for succession; and
- limitation to the first six in line to the throne of the sovereign approval requirement for proposed marriages.
The content of the proposals is admirably explained in the relevant House of Commons Library research paper RP12/81.
The provisions have had a long gestation because of the need to consult the fifteen other Commonwealth countries (the “realms”) which have the UK sovereign as their head of state. The Statute of Westminster 1931 expresses, in effect, an expectation that they will be consulted about proposed changes to succession rules and royal styles and titles. There is also the very practical imperative that consultation is necessary to prevent different succession rules producing different monarchs for different countries.
How the Prime Minister broached the enterprise to his colleagues in the Commonwealth realms is unknown because the relevant letter remains undisclosed. Publication would help understanding of which parts of the plan were thought to fall within the 1931 expectations and which were not. Gender-blind primogeniture clearly would have so fallen; but Roman Catholic marriages and, certainly, the Royal Marriages Act 1772 could be thought to fall into different categories.
Each provision of the Bill is admirable in its way but the government’s wish to pursue an expedited procedure in Parliament betrays – in its unspoken wish to curtail debate – some anxiety over how these parts are to be understood against each other and related provisions. Although the government has been careful to set out the reasons for expedition responding to the criteria recommended by a Lords committee, its position is somewhat undermined by the fact that the legislation has from the beginning been expected to have retrospective effect. The government will no doubt argue that Parliament should not interfere with a package so laboriously negotiated with fifteen other countries. There is also the fact that few, surely, would wish to submit the Cambridges to any more uncertainty than is necessary.
Primogeniture gender neutrality
Removing the male preference system could prompt the question why primogeniture should determine succession rather than some merit rule. But, as Lord Melbourne remarked about the Garter, monarchy has the advantage that “there is no damned merit” about it. Precisely – it is certainty that is required rather than qualification.
Roman Catholic marriage
Because abolishing this disqualification leaves untouched the remaining Catholic disqualifications, the question is naturally why should any remain. That is, it will still be the case that the monarch cannot be a Catholic and, moreover – a rule applying generally – will also have to be “in communion with” the Church of England. This latter rule means that, even if the explicit ban on Catholics succeeding were repealed, an implicit ban would remain – including on everyone else not “in communion”, ie non-Trinitarian Christians, all non-Christian believers and all non-believers.
The customary defence to preserving the explicit and implicit Catholic bans is that repeal would be incompatible with the monarch remaining Supreme Governor of the Church of England. That would have force were it still the case that the monarch exercised any executive function. Whilst that was true when the present rules were devised at the end of the 17th century, it is certainly not true now. Similarly, the monarch’s coronation oath to uphold the Anglican church has no force. In practice, the monarch nowadays functions as a patron of the Church where the formal powers – for example, appointing senior clergy – are actually exercised by committees of the Church itself. Whilst the monarch’s writ does still run in the royal peculiars such as Westminster Abbey and St Georges, Windsor, it is not in practice exercisable in despite of the Church’s own wishes even if the peculiars escape episcopal oversight.
Realising that things have changed is one thing: finding ways to respond to what has occurred is another. The relative absence of UK constitutional discontinuity means at some levels that the gap between appearances and reality can become abnormally stretched. Constitutional catch-up calls for skilled – and opportunistic – practitioners. On some occasions legislation is required; but on others re-labelling or reinterpreting could suffice, as suggested above in relation to how “Supreme Governorship” could nowadays be understood. Some loosening of ancient, exclusive ties would seem desirable in our increasingly pluralised society.
The present sovereign has herself voiced reinterpretive language about the modern role of the Church of England. At what was one of the first of the Diamond Jubilee engagements, the sovereign said this at a multi-faith event at Lambeth Palace on 15 February 2012:
“Here at Lambeth Palace we should remind ourselves of the significant position of the Church of England in our nation’s life. The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated. Its role is not to defend Anglicanism to the exclusion of other religions. Instead, the Church has a duty to protect the free practice of all faiths in this country.
It certainly provides an identity and spiritual dimension for its many adherents. But also, gently and assuredly, the Church of England has created an environment for other faith communities and indeed people of no faith to live freely. Woven into the fabric of this country, the Church has helped to build a better society – more and more in active co-operation for the common good with those of other faiths”.
The language is reflective of current episcopal claims expressed in the House of Lords from time to time and must have been, in the usual way, uttered on advice, presumably that of the Church itself. (If government ministers had been consulted, would they have approved?) Even bearing in mind the nature of the particular occasion, the language would be regarded – particularly by some other Christian denominations – as controversial.
The synecdoche of “England” for “the UK” apart, the notion of the Church as the protector of other faiths is clearly new doctrine in the sense that the role is one the Church has only recently sought to assume. Moreover, the language suffers from the same difficulty as the coronation oaths: the Church is no more able to protect anyone any more than the sovereign can preserve the Church by virtue of a coronation oath – an oath which did not prevent disestablishment in Ireland or Wales. Perhaps the language used on this occasion will fall to be regarded as the high-water mark of the claims of a Church which nowadays accepts religious freedom but does not wish to concede religious equality.
Readers of the Bill may be surprised to find that this subject occupies more of the Bill than the other provisions put together. This is because clearing this particular lumber room of history has to deal with the accretions of two and a half centuries. The 1772 Royal Marriages Act applied to all the descendants of George II, by now a mighty tribe of mostly obscure people not all of whom may have been aware of the requirement to seek a reigning sovereign’s prior approval for their marriages. Whilst seeking royal approval for those who were aware became for most perhaps a family rite of passage denoting a proud royal connection however increasingly remote, for others failure go through those formalities jeopardised the status of their marriages. The Bill handsomely rectifies unwitting omissions accordingly.
The Bill also abolishes the oppressive penalties of the 1772 regime. Instead of voiding marriages lacking royal consent, it simply disqualifies from succession the limited categories henceforward subject to the consent requirement should they fail to obtain it.
There remains behind this tidying-up exercise the question of whether royal consent should be required for anyone’s marriage in the first place. Whilst the 1772 Act machinery would have been an important element in the matter of Princess Margaret’s decision not to marry Group Captain Townsend, the objection that he was a divorced man would not now perhaps feature as an insuperable objection. Presumably other targets of unsuitability are thought to have force but, if so, which? Would the line be drawn at marriage to one’s personal trainer (Sweden) or an unmarried mother (Norway) – official consent forthcoming in both countries? Are there questions of human rights lurking here despite the Deputy Prime Minister’s confident assertion that the Bill’s provisions are compatible with ECHR rights?
The Bill is a piecemeal assemblage – but the government is not to be blamed for that. Granted the character of the UK constitution, it is sensible to tinker where one can. At the same time, however, it is the very limited nature of such changes that draws attention to what remains unchanged. There is no shortage of targets in the case of the residues of the confessional state. Obvious topics include whether sovereigns must continue to be compulsorily linked to a particular religious organisation and not free to choose for themselves; whether Anglican coronations should remain the principal way in which the population is drawn to acclaim a new head of state; and whether twenty-six Anglican bishops should continue automatically as members of the legislature. These are not matters the government may wish now to address – but they are not going to go away.
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The Daily Mail reported yesterday that the Prince of Wales had expressed his concern to the Permanent Secretary at the Cabinet Office that the consequences of the proposed legislation had not been properly thought through and would have unintended consequences. Some of his concerns were about the potential effect on peerage law (for which I don’t possess the appropriate anorak) but he also raised an issue of interest to students of law and religion:
“He made representations about the potential effect of his grandchild – irrespective of gender – being allowed to marry a [Roman] Catholic, as the Bill proposes. If this happened, and his grandchild’s spouse insisted that any child be brought up as a Catholic, that could either bar the child from the throne, or compromise the monarch’s role as Supreme Governor of the Church of England”.
The London Evening Standard then took up the story in the Mail, claiming that St James’s Palace “declined to deny a report that Prince Charles voiced serious concern about the ‘rushed’ plans to change the ancient laws that govern the royal line of succession”, claiming that the Bill would have an accelerated progress through Parliament.
Whether or not there any truth in any of this, who knows? But, in the circumstances, it deserves to be noted.
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