2011 proposals to change the rules of royal succession in the Commonwealth realms

On 28 October 2011, during the Commonwealth Heads of Government Meeting in Perth, Australia, it was announced that British Prime Minister David Cameron's proposed changes to the royal succession laws in the 16 Commonwealth realms had received unanimous support of the other realms' prime ministers. The alterations would replace male preference primogeniture—under which sons take precedence over daughters in the lines of succession—with absolute primogeniture for descendants of the current Prince of Wales; end the ban on marriage of dynasts to Catholics; and limit the requirement for those in line to the throne to acquire permission of the sovereign to marry. However, the requirement for the sovereign to be in communion with the Church of England would remain. The Queen, Elizabeth II, is said to support the proposed changes.^[1][2]

New Zealand will chair a working group to determine the process for reform. The Commonwealth realms—the United Kingdom, Canada, Australia, New Zealand, Jamaica, Barbados, the Bahamas, Grenada, Papua New Guinea, the Solomon Islands, Tuvalu, Saint Lucia, Saint Vincent and the Grenadines, Belize, Antigua and Barbuda, and Saint Kitts and Nevis—are all equivalent in status, and independent of each other, while sharing one monarch in a constitutionally equal fashion. As such, changes to the succession laws, according to convention, must be identical in and approved by each country, though the procedure varies between realms.

Background

Succession to the throne in each of the Commonwealth realms is governed both by common law and statute. Under common law, the Crown is currently transmitted by male-preference primogeniture;^[3] succession passes first to the monarch's or nearest dynast's legitimate sons (and to their legitimate issue) in order of birth, and subsequently to daughters and their legitimate issue, again in order of birth, so that sons always inherit before their sisters, elder children inherit before younger, and descendants inherit before collateral relatives.

Succession is also governed by the Act of Union 1800, which restates the provisions of the Act of Settlement 1701, and the Bill of Rights 1689. These laws restrict the succession to legitimate descendants of Sophia, Electress of Hanover and disbar those who are Roman Catholics or who have married Roman Catholics. The descendants of those who are disbarred for being or marrying Roman Catholics, however, may still be eligible to succeed.^[4] By convention iterated in the preamble to the Statute of Westminster 1931, the line of succession cannot be altered without the agreement of all 16 realms.^[5]

Challenges have been made against the Act of Settlement, especially its provisions regarding Roman Catholics and preference for males. In Canada, where the Act of Settlement is now a part of Canadian constitutional law, Tony O'Donohue, a Canadian civic politician, took issue with the provisions that exclude Roman Catholics from the throne, and which make the monarch of Canada the Supreme Governor of the Church of England, requiring him or her to be an Anglican.^[6] In 2002, O'Donohue launched a court action that argued the Act of Settlement violates the Canadian Charter of Rights and Freedoms, but the case was dismissed by the court.

In the United Kingdom, from time to time there has been debate over repealing the clause that prevents "Papists" (Roman Catholics) or those who marry one from ascending to the British throne. The Scottish Parliament unanimously passed a motion in 1999 calling for the complete removal of any discrimination linked to the monarchy and the repeal of the Act of Settlement.^[7] A private member's bill—the Succession to the Crown Bill—was introduced in the House of Lords in December 2004. The government, headed by Tony Blair, however, blocked all attempts to revise the succession laws, claiming it would raise too many constitutional issues and it was unnecessary at the time. The issue was raised again in January 2009, when a private member's bill to amend the Act of Succession was introduced in Parliament. British Labour Member of Parliament Keith Vaz introduced to the House of Commons at Westminster, in early 2011, a private member's bill, which proposed that the Act of Settlement be amended to remove the provisions relating to Roman Catholicism and change primogeniture governing the line of succession to the British throne from male-preference to absolute.^[8]

Proposals in 2011

In 2011, the Deputy Prime Minister of the United Kingdom, Nick Clegg, announced that the British government was considering a change in the law.^[9][10] At about the same time, it was reported that Prime Minister David Cameron had written to the prime ministers of each of the other fifteen Commonwealth realms, asking for their support in changing the succession to absolute primogeniture, and notifying them he would raise his proposals at that year's Commonwealth Heads of Government Meeting (CHOGM) in Perth, Australia.^[11]

At CHOGM on 28 October 2011, the prime ministers of the other Commonwealth realms agreed to support the proposed changes. The changes would replace male preference primogeniture with absolute primogeniture for descendants of the current Prince of Wales, end the ban on marriage to Catholics, and limit the requirement for those in line to the throne to acquire permission of the sovereign to marry. However the requirement for the sovereign to be in communion with the Church of England would remain.^[12][13][14] The bill put before the Parliament of the United Kingdom would act as a model for the legislation required to be passed in at least some of the other realms, and any changes would only first take effect if the Duke and Duchess of Cambridge were to have a daughter before a son.^[12][15] The Queen is understood to support the changes.^[15]

Cameron stated: "The idea that a younger son should become monarch instead of an elder daughter simply because he is a man, or that a future monarch can marry someone of any faith except a Catholic - this way of thinking is at odds with the modern countries that we have become."^[12] On the question of continued requirements that the sovereign be a Protestant, Cameron added, "Let me be clear, the monarch must be in communion with the Church of England because he or she is the head of that Church."^[7]

Legislative process

The reforms now need to be approved by parliaments of 14 out of 16 realms;^[12] Papua New Guinea and Tuvalu do not require direct legislation.^[15] New Zealand will chair a working group to consider the best way of accomplishing this reform in all the countries concerned.^[16] In the United Kingdom, the Government is examining what legislation needs to be amended. Legislation under review includes the Bill of Rights, the Coronation Oath Act, the Act of Settlement, the Act of Union between England and Scotland, the Accession Declaration Act, Princess Sophia's Precedence Act, the Royal Marriages Act, the Union with Ireland Act and the Regency Act.^[16]

Possible problems

The Canadian situation could possibly hinder the whole process, section 41 of the Canadian Constitution requires changes to the office of the King/Queen regnant to be adopted by unanimous consent of all the provinces. If changes to the succession of the Crown are found to fall under this provision, it is possible that Quebec would hinder any attempts at change.^[17][18][19]

Commentary

Cameron's proposals were supported by the Prime Minister of Australia, Julia Gillard, who said she was "very enthusiastic about it. You would expect the first Australian woman prime minister to be very enthusiastic about a change which equals equality for women in a new area."^[12] Canadian prime minister Stephen Harper described himself "supportive" of the reforms as "obvious modernizations".^[20][13]

Scottish First Minister Alex Salmond was more critical, saying: "It is deeply disappointing that the reform has stopped short of removing the unjustifiable barrier on a Catholic becoming monarch."^[7] While welcoming the gender equality reforms, The Guardian also criticized the failure to remove the ban on Catholics sitting on the throne as "fanning a religious hostility the rest of Europe was already growing beyond."^[21] A representative of the campaigning group Republic said: "The monarchy discriminates against every man, woman and child who isn't born into the Windsor family. To suggest that this has anything to do with equality is utterly absurd."^[12]

Timetable

Realm	Date reforms approved in principle by Prime Minister	Date reforms approved by parliament	Date given royal assent
Antigua and Barbuda	28 October 2011
Australia	28 October 2011
The Bahamas	28 October 2011
Barbados	28 October 2011
Belize	28 October 2011
Canada	28 October 2011
Grenada	28 October 2011
Jamaica	28 October 2011
New Zealand	28 October 2011
Papua New Guinea	28 October 2011	not required	not required
Saint Kitts and Nevis	28 October 2011
Saint Lucia	28 October 2011
Saint Vincent and the Grenadines	28 October 2011
Solomon Islands	28 October 2011
Tuvalu	28 October 2011	not required	not required
United Kingdom	28 October 2011

Sources

• Bogdanor, Vernon (1995). The Monarchy and the Constitution. Oxford: Clarendon Press. ISBN 978-0-19-829334-7.

References