The Succession to the Crown Bill

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The Succession to the Crown Bill HOUSE OF LORDS Select Committee on the Constitution 11th Report of Session 2012–13 The Succession to the Crown Bill Report Ordered to be printed 16 January 2013 and published 21 January 2013 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 106 Select Committee on the Constitution The Constitution Committee is appointed by the House of Lords in each session with the following terms of reference: To examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution. Current membership Lord Crickhowell Baroness Falkner of Margravine Lord Goldsmith Lord Hart of Chilton Lord Irvine of Lairg Baroness Jay of Paddington (chairman) Lord Lang of Monkton Lord Lexden Lord Macdonald of River Glaven Lord Pannick Lord Powell of Bayswater Baroness Wheatcroft Declarations of interests A full list of members’ interests can be found in the Register of Lords’ Interests: http://www.parliament.uk/mps-lords-and-offices/standards-and-interests/register-of-lords-interests Publications All publications of the committee are available at: http://www.parliament.uk/hlconstitution Parliament Live Live coverage of debates and public sessions of the committee’s meetings are available at: http://www.parliamentlive.tv General information General information about the House of Lords and its committees, including guidance to witnesses, details of current inquiries and forthcoming meetings, is available at: http://www.parliament.uk/business/lords Committee staff and legal advisers The current staff of the committee are Nicolas Besly (clerk), Luke Wilcox (policy analyst) and Hadia Garwell (committee assistant). Professor Richard Rawlings and Professor Adam Tomkins are legal advisers to the committee. Contact details All correspondence should be addressed to the clerk of the Select Committee on the Constitution, Committee Office, House of Lords, London, SW1A 0PW. The telephone number for general enquiries is 020 7219 5960. The committee’s email address is [email protected] The Succession to the Crown Bill 1. The Succession to the Crown Bill was introduced into the House of Commons on 13 December 2012. Both second reading and Committee of the Whole House have been scheduled for 22 January 2013. Given the subject matter of the bill, it is legislation of first-class constitutional importance. The Act of Settlement 1700 confirmed the fundamental constitutional principle that Parliament determines the title to the Crown.1 In reference to the current bill, the Deputy Prime Minister has spoken of “a historic moment for our country and our Monarchy”—legislation “which will make our old fashioned rules fit for the 21st Century”.2 2. On 9 January we took evidence on the bill from the Deputy Prime Minister, the Rt Hon. Nick Clegg MP, and the Minister for Political and Constitution Reform, Chloe Smith MP.3 In particular, we raised the issue of the proposed use of fast-track legislation for this measure. The principal object of this report is to advise the House of our conclusions on that matter. The Perth agreement 3. The bill follows the “Perth agreement” of 28 October 2011, made at the bi- annual Commonwealth Heads of Government Meeting. The 16 Commonwealth Realms4 which currently recognise Her Majesty as Head of State all agreed to modernise the existing laws on succession to the Crown.5 The system of male preference primogeniture would be abolished, together with one of the vestiges of a distinctively “Protestant constitution”6: the bar on those who marry Roman Catholics from succeeding to the Throne. Led by the government of New Zealand, the 16 Realms further agreed to work together to enable the necessary measures to be given effect simultaneously in their respective jurisdictions. The explanatory notes to the bill underwrite this: the Government expect to bring the substantive provisions into force “at the same time 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”.7 4. A third matter was referred to the other Realms by the Prime Minister: the requirement of the Monarch’s consent to certain marriages. On 2 December 2012 the UK Government received final written agreement8 from all the 1 In order to secure the Protestant succession, section 1 of the Act of Settlement 1700 constructed the order of succession through Princess Sophia, Electress of Hanover. 2 Deputy Prime Minister, Royal succession rules will be changed, press release, 4 December 2012. See further, House of Commons Library, Succession to the Crown Bill 2012–13, Research Paper 12/81 (December 2012). 3 As part of our annual evidence session with the Deputy Prime Minister: the full transcript is available on the Committee’s webpages. 4 Antigua and Barbuda, Australia, the Bahamas, Barbados, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New Guinea, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, the Solomon Islands, Tuvalu and the United Kingdom. 5 The text of the Perth agreement is in Annex 1 of the resulting report by the House of Commons Political and Constitutional Reform Committee, 11th report (2010–12): Rules of Royal Succession (HC 1615). 6 Originating in the realm of Henry VIII with statutes including the Act of Supremacy 1534. 7 Para 42. 8 ibid., para 11. 4 THE SUCCESSION TO THE CROWN BILL other Realms regarding all three aspects of the proposed reform. The following day the Duchess of Cambridge’s pregnancy was announced. 5. We welcome the close consultation and co-ordination between the Realms. Considerations of mutual respect and friendship among sovereign states, and of uniformity9 and decorum, demand nothing less. More particularly, the approach accords with the clear expression of will in the preamble to the Statute of Westminster 1931 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”.10 The provisions of the bill 6. Clause 1 of the bill removes the element of gender discrimination in the existing common law rules whereby an elder daughter is displaced by a younger son in the line of succession. It is thus provided that the gender of a person born after the making of the Perth agreement (i.e. 28 October 2011) “does not give that person, or that person’s descendants, precedence over any other person (whenever born)”. 7. Clause 2 removes an element of religious discrimination deriving from the Bill of Rights 1688 and section 2 of the Act of Settlement 1700. Clause 2(1) provides that “a person is not disqualified from succeeding to the Crown or from possessing it as a result of marrying a person of the Roman Catholic faith.” Reflecting as it does a historical struggle between the forces of Protestantism and Catholicism in Europe, the existing disqualification is unique. In evidence, the Deputy Prime Minister said:11 “Under the present provisions an heir to the throne can marry someone of another religious denomination—someone of the Hindu or Muslim faiths … What we are doing is simply removing a very specific act of discrimination against Catholics”. Clause 2 is retrospective in that those who have married Roman Catholics will regain their places in the current line of succession. However, in the words of the explanatory notes, “this does not affect anyone with a realistic prospect of succeeding to the Throne”.12 8. Clause 3 will repeal the Royal Marriages Act 1772, which (subject to exceptions) renders void the “marriages” of descendants of George II who fail to obtain the Monarch’s permission to marry. This is thought to apply to several hundred people, “many of whom will be unaware of the Act or its impact”.13 The requirement of the Sovereign’s consent is not abolished entirely, however. Rather it is (a) narrowed so as to apply only to the first six in the line of succession and (b) softened, such that failure to comply is no longer a matter of invalidity but of disqualification of that person and of that person’s descendants from succeeding to the Crown. As such, clause 3 better 9 In face of the principle of divisibility of the Crown, whereby Her Majesty is Queen in each of the Realms separately. 10 Three of the present 16 Realms were dominions at that time: Australia, Canada and New Zealand. 11 Unrevised transcript of evidence, 9 January 2013, Q8. 12 Para 28. 13 ibid., para 5. THE SUCCESSION TO THE CROWN BILL 5 respects the right to marry.14 Clause 3(5) removes the broader effects of the 1772 Act retrospectively in most cases. 9. Clause 4 and the Schedule make consequential amendments. In particular, clause 4(3) provides that relevant Articles in the Union with Scotland Act 1706 and the Union with England Act 1707, and in the Union with Ireland Act 1800 and the Act of Union (Ireland) 1800, are subject to the provisions of the bill. The Regency Act 1937 is also amended, so that a person subject to, and failing to comply with, the reworked requirement of consent to royal marriages is disqualified from being Regent. 10. Clause 5 provides that the substantive provisions of the bill will come into force on such day and at such time as is specified by order made by the Lord President of the Council.15 Constitutional process 11. We began our 2011 report The Process of Constitutional Change16 by observing that:17 “the constitution is the foundation upon which law and government are built. The fundamental nature of our constitution means that it should be changed only with due care and consideration … Process is critical in terms of upholding, and being seen to uphold, constitutional values: particularly those of democratic involvement and transparency in the policy-making process.” We drew attention in that report to a number of weaknesses in the current practice of legislating for significant constitutional change, including the lack of constraints on the Government, failure to have regard to the wider constitutional settlement, changes being rushed and lack of consultation.18 12.
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