A number of official and unofficial events marked the birth to a boy to the Duchess of Cambridge on Monday 22 July at 16:24 BST. At 2 pm on 23 July, the Westminster Abbey Company of Ringers rang a full peal on the Abbey’s ten bells, which coincided with the 41 gun salute by The King’s Troop Royal Horse Artillery in Green Park and a 62 gun salute by the Honourable Artillery Company, the City of London’s Army Reserve Regiment, from Gun Wharf at the Tower of London. The peal  comprised five thousand changes of Cambridge Surprise Royal and lasted for over three hours. Traditionally the Abbey’s bells are rung for significant royal occasions, and the birth of Prince William was marked with a peal of a peal of Yorkshire Surprise Royal in 1982. Ironically, the last royal gun salute for a birth was 1990 for Princess Eugenie, who as a consequence of the birth will now move from sixth to seventh in line of succession – but when section 3(1) of the Succession to the Crown Act 2013 comes into force will no longer require the monarch’s permission to marry.
As the historian and broadcaster David Starkey noted in The Independent, “for the very first time it has made no difference what the gender of the child is – it is the heir and it is as simple as that”, adding that “[t]he fact that it is a boy postpones the idea of authentic female succession.” He also pointed out that “the effect of the Act that everybody has been labouring over (?) will not now be felt for 100 years”. Given the retrospective nature of some of its provisions, it is perhaps timely to reassess its possible impact and what was achieved through its hurried introduction.
When do the provisions of the Act come into force?
Although the Succession to the Crown Act 2013 received Royal Assent on 25 May 2013, the only part in force is section 5, which states, inter alia, that the substantive provisions will only come into force “on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint”. This is clarified in the Explanatory Notes which indicate [paras. 33 to 36 inc.] that
“The substantive provisions of the Act will come into force on such day and at such time as is specified by order made by the Lord President of the Council.
The Government expects to bring these provisions into force at the same time – but at different local times – as the other Realms bring into force any changes to their legislation or other changes which are necessary for them to implement the Perth Agreement [between the relevant Commonwealth Heads of Government]. Section 5(3) allows for flexibility in commencement should unforeseen circumstances arise.
Some Commonwealth Realms have decided that they do not need to legislate as the changes made by the Act will have effect in their countries automatically. Other Realms have legislated or will legislate to ensure that the changes to the rules on royals succession take effect in their countries.
The Government has undertaken to inform Parliament when the commencement order or orders are made by the Lord President of the Council.”
Is the Act retroactive or retrospective?
The media and others tend to use these terms interchangeably, and although the House of Commons Library has recently produced a Standard Note, Retrospective legislation, SN/PC/06454, this does not assist in distinguishing between them. However, in the Canadian case Hornby Island Trust Committee v Stormwell 1988 CanLII 3143 (BC CA) Lambert JA clarified the position as:
“A retroactive statute operates forward in time, starting from a point further back in time than the date of its enactment; so it changes the legal consequences of past events as if the law had been different than it really was at the time those events occurred. A retrospective statute operates forward in time, starting only from the date of its enactment; but from that time forward it changes the legal consequences of past events” [para 15].
On this basis, the provisions within the Act regarding succession – section 1 – are retrospective to 28 October 2011: the date of the Commonwealth Heads of Government Meeting in Perth. At that meeting, the Prime Minister of the UK announced that
“with the agreement of the fifteen other Commonwealth Realms of which Her Majesty is also Head of State, the United Kingdom would change the rules of royal succession to end the system of male preference primogeniture and the bar on those who marry Roman Catholics from succeeding to the Throne.”
The retrospective element of section 1 will apply to Tāne Lewis and Senna Lewis, (children of Lady Davina Lewis ), currently 26th and 27th in line, who will change places since Tāne was born after 28 October 2011 and will lose his position of male preference over his older sister.
The provision relating to Roman Catholics – section 2(2)) – is also retrospective but has no cut-off date. It “applies in relation to marriages occurring before the time of the coming into force of [s2(2)] where the person concerned is alive at that time (as well as in relation to marriages occurring after that time)”. The retrospective element will apply to
- the Earl of St Andrews, son on the Duke of Kent (who married a Roman Catholic), who will be restored to the line of succession at 32nd.; and
- Prince Michael of Kent who will be restored to 44th in line to the throne;
Although the third element of the Act – consent to royal marriages – was not mentioned in the Perth Agreement, it “had been referred to by the Prime Minister in an invitation to the Heads of Government of the Commonwealth Realms to consider issues relating to succession . Section 3(5) too is retrospective, and “probably applies to several hundred people, many of whom will be unaware of [The Royal Marriages Act 1772] or its impact on the validity of their marriages ”.
The Succession to the Crown Act will bring the UK into line with other European countries which have introduced equal primogeniture: Sweden, 1980; Netherlands, 1983; Norway, 1990; Belgium, 1991; Denmark, 2009; and Luxembourg, 2011. However, as Viscount Astor noted during the Bill’s Second reading [14 Feb Col. 810],
“[t]he Select Committee report pointed out that the retrospective element of the provision obviates the need for fast-tracking … even after the passage of the Bill, it will not come into force until, under Clause 5, an award is made by the Lord President of the Council”.
In the UK Constitutional Law Group blog, Professor Robert Hazell states that
“the nature of the change required varies roughly in proportion to the size of the country: the smallest countries may simply pass a Cabinet resolution, others will legislate in parliament, while the largest countries may need to amend their constitutions.”
The federal nature of Australian and Canadian legislation has presented particular problems, and may have prompted some to question the continuing link with the monarchy of a country.
A further domestic issue was highlighted by Lord Trefgarne during Third reading of the Bill, who observed [22 April Col. 1229] that
“This Bill has also set running the hare of what happens to the hereditary peerage with regard to the succession arrangements for hereditary peers … those arrangements are … a great deal more complicated even than they are for the Crown.
In the medium- to long-term, there are clearly a number of issues to be resolved in this ‘straightforward’ five clause/one Schedule Bill”.