On Friday 26 March 2015 the Succession to the Crown Act 2013 was finally brought into force. Bob Morris, of the Constitution Unit at UCL, offers an overview of the Act and explains why it has taken so long to come into effect.
At practically the last gasp of the now dissolved Parliament, the bringing into force of the Succession to the Crown Act 2013 was announced by the Deputy Prime Minister Nick Clegg in his capacity as Lord President, on Friday 26 March 2015 [Hansard, Lords, HLWS483].
Many people may well have concluded that all this had been accomplished when the Act was passed in 2013. Some may even have thought that it had all been settled when the Prime Minister secured agreement to proceed on 28 October 2011 at the Commonwealth Heads of Government Meeting (CHOGM) at Perth, Australia. It may be a mark of how little general interest there was in the final consummation that the first publications to greet it were the Hello and Elle magazines.
However, the latest development is not insignificant. What follows seeks to:
- Recapitulate what the Act is about
- Explain why it has taken so long to come into force
- Discuss how the changes are to be understood
The Act’s provisions
First, the Act changes the law of crown succession to make it gender neutral. That is, the crown will now descend to heirs in order of birth only. This brings UK practice into line with a number of other European monarchies who have changed to gender neutral succession – Sweden 1980, Holland 1983, Norway 1990, Belgium 1991, Denmark 2009 and Luxembourg 2011. Only Liechtenstein, Monaco and Spain retain male primogeniture.
As it was introduced at the time when the Duke and Duchess of Cambridge were expecting their first child, the Act stipulated that a daughter would succeed her father irrespective of whether later children were male. To allow for the delay in implementing the change to the law, the relevant provision was made retrospective to 28 October 2011(the date of the Commonwealth Heads of Government Meeting agreement) so that the child would benefit if it was female. In the event, the first child was male, Prince George.
Secondly, the Act removed the prohibition on succession by heirs married to Roman Catholics, which was first introduced in 1689. This change has had the effect of bringing back into the line of succession currently surviving members of the royal family formerly removed because of their catholic marriages. From now onwards, marriage to a Catholic will no longer be a bar to succession. On the other hand, being a Roman Catholic still will be – more on this later. So Nick Clegg’s boast in his 26 March statement that ‘The Act reflects this Government’s emphasis on equality by removing centuries of discrimination on both religious and gender grounds’ needs to be qualified accordingly.
Thirdly, the requirement in the Royal Marriages Act 1772 that all the descendants of George II should obtain royal approval for their marriages (with penalties for disobedience) was replaced. Henceforth, the approval requirement extends only to the first six in line and the penalty for disobedience will simply be removal from the line without suffering invalidity of the marriage itself. This frees George II’s numerous other descendants from the requirement – many wholly unaware of their obligation to seek consent, as the are now so remote from royalty. The operation of the new cut-off means, for example, that of the Duke of York’s daughters, Beatrice will need to seek consent but her sister Eugenie, who is seventh in line, will not.
Why has it all taken so long?
The reason arises from the fact that the UK shares its monarchy with fifteen other Commonwealth states, generally referred to as ‘realms’. Of these, six chose to legislate for the succession law changes: Australia, Barbados, Canada, New Zealand, St Kitts and Nevis, and St Vincent and the Grenadines. Nine took the view that their constitutions effectively recognised UK succession law automatically: Antigua and Barbuda, Bahamas, Belize, Grenada, Jamaica, Papua New Guinea, St Lucia, Solomon Islands, and Tuvalu. (All up, the realms may at first sight seem an heterogeneous group but closer examination reveals a certain degree of cultural and religious affinity.)
The principal cause of the delay was the greater relative difficulty for some states in changing their constitutions. Constitutional legislation in a union state like the UK is rarely uncontentious yet relatively straightforward procedurally since, at most, an Act of Parliament is all that is required. On the other hand, constitutional legislation in federations such as Canada and Australia is inherently more complex and fraught. In Canada, anti-monarchical sentiment in Quebec had to be considered. In Australia it was necessary to observe the degree to which individual states claim autonomous links with the crown. In Canada the federal government passed legislation that recognised the UK changes as pertaining to the identity of the monarch rather than to the principle of monarchy itself, thus avoiding any need to invite Provinces to agree to the change individually – a procedure to which challenge has been attempted in the Canadian courts. In Australia the solution was for each state to pass legislation to request the Commonwealth government to legislate for Australia as a whole, an unavoidably protracted process completed only just before the 26 March announcement.
Understanding the changes
They seem to be of two kinds: those affecting the UK internally and those relating to its place in the world.
Gender neutrality in royal succession is a mark of the extent to which equality agendas have been realised in the UK in recent decades. But this constitutional drive for equality is vitiated by other provisions of the Act which remove the prohibition of Catholic marriages but not on being a Catholic. Moreover, equally untouched are the constitutional provisions that require succession to be dependent on being ‘in communion with’ the Church of England – another block on Catholics, as well as on all non-Trinitarian Christians and all other believers and non-believers.
The reason given for not addressing religious exclusivity is that the sovereign remains head of the Church of England, the particular form of Christianity ‘established’ only in England but nowhere else in the UK. That Church has had its own problems with equality issues: whilst – famously – the ban on women bishops has now been recently removed, it still struggles with homosexual marriage and defends its right to wider exemptions for employment discrimination on religious grounds than seem necessary or just, as well as clinging on to automatic episcopal representation in the UK Parliament.
During the passage of the Bill in 2013, the government was alive to the possibility that its legislation would be questioned both by Roman Catholics and by others opposed to the principle of establishment. To deal with such sentiments, the government set out its stall:
‘…let me state again that the Government are absolutely committed to the Church of England as the established Church, with the sovereign as its Supreme Governor. We consider that the relationship between the Church and state in England is an important part of the constitutional framework. It has evolved over centuries and the Government has no intention of legislating to disestablish the Church of England. It is important to state that. The Government’s view is that allowing a person of Roman Catholic faith to accede to the throne would clearly be incompatible with the requirement for the sovereign to be in communion with the Church of England.’ [Chloe Smith (Parliamentary Under-Secretary), Hansard, Commons, 28 January 2013, col. 721]
This is both remarkably strong and very defensive language. It is all of a piece with the government’s giving time for the declaratory but otherwise unnecessary Local Government (Religious etc. Observances) Act 2015. Such behaviour looks perhaps rather like raging against a tide about to engulf one’s sandcastle. And leaving the prohibitions against being a Roman Catholic makes that persistence all the more isolated and vulnerable.
Standing out against religious equality, which we do not have, as opposed to religious freedom which we do have, seems perverse. Apart from the woeful exhibition of in practice conflating the claimed religious interests of England with those of the whole of the UK, it is – as Sir Humphrey might have said – ‘brave’ to contend that no change may be contemplated in a situation where belief has both declined and pluralised, and also where indifference to religious practice is the dominant mode.
Indeed, it is this indifference which makes the whole subject of low political salience and yet permits a government to present such resolve as uttered by Chloe Smith with a straight face. Unspoken may be an appreciation that no government would willingly wish to tackle head on problems which may in any case – admittedly in a long timescale – solve themselves. The Church of England is already in practice autonomous and, if it continues also to fade away, it may become a completely voluntary organisation with only residual and vestigial connection with a head of state no longer tied to it by law. The executive would take an initiative itself perhaps only where its and the Church’s interests became seriously misaligned. Meanwhile, as in the recent budget, the government can offer it and others practical help to keep the better buildings from falling down in recognition of the fact that, ultimately, this part of the national heritage will require public rescue.
Looking outwards, the experience of the legislation has been instructive. Because the monarchy is shared with so many other Commonwealth states and the UK monarch is also ‘Head’ of the Commonwealth, changes to the succession have to be done in concert lest different laws lead to a divided monarchy with different persons becoming monarchical heads of different realms and the ‘Headship’ itself contested. The landing of the Act has prevented these dangers and at apparently little political cost. The process does not seem to have sparked new waves of republicanism in the other realms. Nor have Catholic majorities in them railed against the persistence of the Catholic prohibitions. Nonetheless, the process has exposed these aspects to new generations and there may be a biding of time to re-examine monarchical links when the event of succession next occurs.
Yet there is still more to reflect upon. The religious position of the crown in England has had and continues to have consequences both for the composition of the Commonwealth and the UK’s relation with the realms within it. As remarked above, at first sight the realms look a fairly rum collection. The absence of the Indian sub-continent states is not surprising. However, as Professor Philip Murphy has pointed out, the former African colonies are entirely absent from the list of the realms because it was British policy during the post-war decolonisation process to avoid former African colonies becoming monarchies. This was on the grounds that involving the Crown in the politics of post-colonial Africa might expose the Queen to potential embarrassment damaging to national prestige and undermining the Queen’s capacity to serve as the focus of a specifically British identity. ‘This threat of “embarrassment” was enhanced both by the gender politics surrounding the Queen and by the quasi-religious status the royal family had acquired in British national life.’
The present upshot is that a process designed to further specifically British interests in an orderly retreat from empire and first expressed in the preamble to the 1931 Statute of Westminster (then directed at recognising the international status of the original ‘Dominions’), has had unintended and ironic consequences: the realms can change their constitutions without reference to the UK, but the UK needs their consent to change its own. The realms have become independent of the UK but the UK has not become independent of them. This was not what decolonisation was thought to be about but it is what – in these aspects at least – we have got. Accordingly, it is partly for religious reasons that the UK consented to continuing monarchical forms in certain independent states rather than in others at the cost of some of its own constitutional freedom, and we are reminded of this by the Succession to the Crown Act.
 One authoritative suggestion has been that the Headship should be abolished at the next accession: ‘…an unelected head of state is hardly an obvious figurehead for an association that espouses the virtues of democracy’: (Murphy P and Cooper D (201) Queen Elizabeth II should be the final Head of the Commonwealth (London, Commonwealth Advisory Bureau) p 6). Whilst such a change might be desirable in its own right, the link with the realms would remain.
 Murphy P (2013) Monarchy and the End of Empire, OUP, p 15.
This article is cross-posted from the UCL Constitution Unit blog.
Cite this article as: Bob Morris, “The Succession to the Crown Act 2013 has landed” in Law & Religion UK, 15 April 2015,https://www.lawandreligionuk.com/2015/04/15/the-succession-to-the-crown-act-2013-has-landed/