Saturday 11 August 2007

The Act of Settlement and the Perils of Repeal

Life is seldom simple. Barely a week after the announcement, controversy now casts its shadow over the engagement of Peter Phillips to Canadian Autumn Kelly (see earlier post). Ms. Kelly, by all accounts an intelligent, upstanding young woman, is a Roman Catholic. In the 21st century there are surely very few advanced western democracies where one's religious affiliation, particularly if Christian, may be regarded as an "issue". Nevertheless, amongst the chattering pseudo-intellectuals of Islington and Westminster, Ms. Kelly's Roman Catholicism has now undeniably acquired that status.

The Act of Settlement 1701, which settled the succession to the throne upon the heirs of the Electress Sophia of Hanover (pictured), grand-daughter of King James I and VI, prevents accession to the throne by Roman Catholics and those who marry Roman Catholics. Whilst succession to the throne is restricted to Protestants, given the virtual impossibility of such an event occurring in 1701, no provision was made to prevent accession by those married to non-Christians.

As the son of HRH The Princess Royal, Peter Phillips will foreit his position in the line of succession (currently 10th) should his marriage to Autumn Kelly proceed. Whilst a "Top Ten" ranking is an enviable position in almost any field, one assumes that being struck off this most exclusive list will not cause the Queen's down-to-earth grandson much concern or thought. Certainly the dilemma he faces and the consequences of his decision are far less troubling than those faced by his great-great-uncle, Edward VIII, during his own marriage crisis. Surely no reasonable person would ever consider it even remotely likely that Peter Phillips might one day be King.

Peter Phillips is not venturing into new territory and he will not be the first to have faced relegation from this illustrious group. In 1978 HRH Prince Michael of Kent was ousted from the line of succession (15th at the time) as a result of his marriage to Baroness Marie-Christine von Reibnitz. A decade later The Earl of St. Andrews (who would be 23rd in succession), son of HRH The Duke of Kent, found himself falling foul of the law by his marriage to Sylvana Tomaselli, another Canadian Roman Catholic. Rome has proved particularly attractive to the Kents for The Duchess of Kent crossed the Tiber in 1994 (however, as she was an Anglican at the time of her marriage, her husband, The Duke of Kent, retains his place in the succession) and Lord Downpatrick, the son of the Earl of St. Andrews, converted to Roman Catholicism in 2003 (which makes him the most senior descendant to have been removed from the line of succession by virtue of his own faith).

If the marriages and conversions of these royals took place without major upset why, then, has this latest engagement attracted such media interest? It is undoubtedly because, whilst he may not bear a royal title, Peter Phillips is not an obscure or minor member of The Queen's personal family and, thus far, is the most senior figure for whom the Act of Settlement has posed a problem.

Whether by coincidence or in anticipation of the royal engagement, on July 22nd Cardinal Cormac Murphy O'Connor, Archbishop of Westminster, stated that the bar on Roman Catholics in the Act of Settlement was "outdated and discriminatory". "Confident that commonsense will prevail", it is his intention to make representations to the Government for repeal of the Act. His Eminence is not a voice in the wilderness. Numerous commentators writing in weekend publications have called for the repeal of this "discriminatory" provision.

In 2002 a Canadian former Toronto Councillor Tony O'Donohue brought a legal challenge to the Act of Settlement on the grounds that the ban on Roman Catholics violated the equality rights provisions of the Canadian Charter of Rights and Freedoms. In its ruling the Court stated that the matter was non-justiciable as the Act of Settlement was part of the Canadian Constitution and one part of the Constitution cannot be subject to another.

Is the Act of Settlement unfair to Roman Catholics and their admirers? Undoubtedly. Should the bar on Roman Catholics be removed? Maybe. Maybe not. I write this as a Roman Catholic with a close family relationship to the Royal House of Stuart (the true "victims" of the Act of Settlement) and as one whose close second cousins, by virtue of their descent from King George II, would rank 4,011 - 4,017 (as of 1 Jan 2001) in the line of succession were they not also Roman Catholic. In light of this I might be expected to be in complete favour of the repeal of the Act of Settlement 1701, or at least of the provision that bars from the succession those who marry Roman Catholics.

However, as with any constitutional matter, one must always consider the implications and effect of any change.

Whilst many commentators have called for the Prime Minister to propose that Parliament change or repeal the Act of Settlement none, to my knowledge, seem to be aware of the difficulties that change, amendment or repeal would create.

The Act of Settlement, 1701 is no longer exclusive to the British constitution; for it also regulates the succession to the throne in all of The Queen's Commonwealth Realms and is equally a part of their constitutions. These realms each have their own separate and independent legislatures and, for those states that have patriated the law, any change made by the Westminster Parliament would be of no force or effect insofar as they are concerned.

Were the British Government to decide to unilaterally alter the Act of Settlement it might lead to a situation whereby the line of succession to the throne in Britain differed from other Commonwealth Realms, possibly resulting in a different Sovereign for Britain than for Canada or Australia. The seriousness and significance of this cannot be overstated. Indeed, to guard against this possibility a convention was established via the preamble to the 1931 Statute of Westminster, which clearly states:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom

In other words, for the sake of the unity of the Crown, any change to the Act of Settlement will require the unanimous consent of the Parliaments of all the Commonwealth Realms. As a preamble the above quoted passage cannot be cited as an enforceable piece of legislation, nevertheless it has been held to be a binding convention.

Britain cannot act unilaterally if it wishes to retain the unity of the Crown. If the Act of Settlement is ever amended or repealed it is imperative that any change be enacted, concurrently, on a multi-lateral basis by all of those Commonwealth Realms for which the Act of Settlement has become a patriated law.

The requirement for unanimity brings with it other perils. Requiring all Commonwealth Realms to consent will inevitably lead to a debate within each realm as to the continuing relevance of the Monarchy itself. Governments of nations with strong republican elements will no doubt face a question of this sort: As we are examining the succession to the position of head of state surely this is the time to embark upon whole-scale reform.

Those who call for change should realise that any attempt to alter the Act of Settlement will stir a hornet's nest in various Commonwealth Realms which may ultimately result in the transformation of many from constitutional monarchy to republic. Of course the counter argument is that it is better to deal with the issue now, during the stable era of The Queen's reign, rather than to wait until forced to deal with it in an uncertain future.

The final issues of great concern raised by the possibility of amendment to the Act of Settlement are of course the status of the Sovereign as Supreme Governor of the Church of England and the argument that a Roman Catholic sovereign's allegiance to the Pope would cause a diminution of British sovereignty. These are weighty subjects which require detailed analysis. Glancing at the considerable length of this post thus far, I fear trying the patience of my faithful readers. I shall therefore leave this particular aspect of the discussion for another day.


trinitylaw said...

Rafe, how would you answer this point that I made on my own blog in response to a comment of yours: a primcipal reason for the Act being directed at spouses of the Sovereign not being Roman Catholics must surely be that that prohibition has in mind the question: what about the next generation? The danger, so far as the drafters of the Act were concerned, was that children of a marriage to a Roman Catholic, including the heir to the throne, would be likely to be brought up as Roman Catholics (precisely as happened in the case of James II's children). That sure remains the likelihood today, for, as I understand it, in a mixed marriage between a Roman Catholic and a non-Roman Catholic, both parties are required by the RC Church to promise that the children of the marriage are brought up in the RC faith. If that were to happen, then the next Sovereign would be RC, and the constitutional settlement, whereby the Sovereign is Temporal Governor of the Church of England, would unwind. I can't see a way round this unless the RC authorities makes some exception for the children of the Monarch.

MandysRoyalty said...

This is indeed a very tricky situation. I was wondering (and this is the very least of the worries, I'm sure) how would it affect those who had already been removed from the line of succession? Would Prince Michael be reinstated, for instance? said...

Dear Cato,

My answer would be that adherents of the Jewish and Muslim faiths are also compelled to raise their children in their faith and yet the Act of Settlement does not prohibit marriage to such persons (for the reasons I outlined in my original piece). Were we dealing with a blanket ban against marriage to non-Protestants this would be another matter. However in the 21st century I can see no logic behind the exclusion of marriage to Roman Catholics whilst permitting marriage to non-Christians.

This is a separate issue to the requirement that the heir to the throne be in communion with the Anglican church.

I have no dobut that if we were ever faced with a situation whereby the heir to the throne married a Roman Catholic and produced issue we would find this obstacle dealt with rapidly and swiftly by Parliament and the Roman Catholic Church. said...

Dear Mandy,

I very much doubt that any change would be made retroactive as it would raise questions as to the point at which one ends/starts...

Anonymous said...

Clearly for the Act of Settlement to be ameneded, the Church of England would also have to be disestablished.

Anonymous said...

Another Kent, Lord Nicholas Windsor, married a Roman Catholic (in the Vatican).