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The Act of Settlement and the Protestant Succession

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The Act of Settlement and the Protestant Succession The Act of Settlement and the Protestant Succession Standard Note: SN/PC/683 Last updated: 24 January 2011 Author: Lucinda Maer Section Parliament and Constitution Centre This note sets out the legal background to the rules surrounding the succession, including the Bill of Rights 1688, the Act of Settlement 1700 and the Act of Union 1706. In summary, the monarch must join in communion with the Church of England, must declare him or herself to be a Protestant, and must swear to maintain the established churches in England and Scotland and take the coronation oath. If he or she wishes to retain the title to the throne he cannot marry a Roman Catholic. And, by the same token, marriage to a Catholic automatically excludes anyone from the line of succession. In addition, the Crown passes to male heirs ahead of female heirs, according to common law. In November 2009 the then Prime Minister, Gordon Brown, stated that the Act of Settlement was “outdated” and that he would consult all members of the Commonwealth on the matter “in due course”. In January 2010 the then Deputy Prime Minister, Harriet Harman, stated that “the discussions are continuing”, but the then Government was “sure that progress will be made”. A Parliamentary answer given by the current Government Minister, Mark Harper, in June 2010 stated that “There are no current plans to amend the laws on succession”. In an Adjournment Debate in July 2010 the Minister stated that “we are not saying that there should not be change. We are simply saying that, if we are to undertake change, we need to do it in a careful and thoughtful way”. On 18 January 2011 he confirmed that “discussions are under way with other countries of which Her Majesty is Queen”. This note considers the main issues raised by any attempt to change the succession to the Crown and recent Government statements on the matter. The Research Paper 09/24 Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill looks at some of these issues in more detail. Also of interest may be the Standard Notes: • SN/PC/3417, Royal Marriages – Constitutional Issues • SN/PC/293, Bill of Rights 1688 • SN/PC/435, The Coronation Oath • SN/PC/4663, PIL: Attempts to Amend Crown Succession since 1979 This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public. Contents 1 The Legal Background 3 1.1 Bill of Rights 1688 3 1.2 Coronation Oath Act 1688 5 1.3 Act of Settlement 1700 6 1.4 The Acts of Union 7 2 Historical Background 8 3 Altering the Succession to the Crown: Main issues 10 3.1 Discrimination 10 3.2 Complexity 11 3.3 Assent of the Commonwealth 12 4 Recent developments 16 4.1 The Labour Government 16 4.2 The current Government 18 2 1 The Legal Background The monarch is the Supreme Governor of the Church of England. There are various legal provisions which mean that the monarch cannot be a Roman Catholic, must join in communion with the Church of England and must swear to maintain the established churches of England and Scotland. In addition, statute law requires that the monarch may not retain their throne if they marry a Catholic, and that any heir that marries a Catholic is removed from the line of succession. These legal provisions are contained in the Bill of Rights 1688, the Act of Settlement 1700 and the Act of Unions, all reinforced by the provisions of the Coronation Oath Act 1680 and the Accession Declaration Act 1910. 1 There have been some recent examples where individuals have been removed from the line of succession because they have married a Catholic. The Earl of St Andrews and HRH Prince Michael of Kent both lost their right of succession through marriage to Roman Catholics.2 Any children of these marriages would remain in the succession provided that they are in communion with the Church of England. The Duke of Kent, however, has retained his place in the line of succession despite his wife converting to Catholicism in 1994 as she was not a Catholic when he married her in 1961.3 The couple’s youngest son, Lord Nicholas Windsor, has converted to Catholicism and therefore cannot inherit the throne. In 2008 it was announced that Peter Phillips would marry his partner, Autumn Kelly. It emerged that she had been baptised as a Catholic. Ms Kelly was accepted into the Church of England before the marriage took place and Peter Phillips retains his place in the line of succession.4 In addition, the Crown passes to male heirs ahead of female heirs, according to common law requirements.5 1.1 Bill of Rights 1688 Until the Bill of Rights 1688 there was nothing on the statute book to prevent the monarch from being a Roman Catholic.6 Shortly after his accession in 1685 James II prorogued Parliament and, although it was not dissolved until July 1687, it never met again. Thus at his departure there was no Parliament, and the Convention Parliament summoned by William of Orange before his accession was inevitably irregularly convened. The House of Commons resolved in January 1688: That King James II having endeavoured to subvert the constitution of the kingdom by breaking the original contract between the King and people and by the advice of Jesuits and other wicked persons having violated the fundamental laws; and having 1 In England before 1752, 1 January was celebrated as the New Year festival, but 25 March was the start of the civil or legal year. The Calendar (New Style) Act 1750 introduced the Gregorian Calendar in place of the Julian Calendar and moved the start of the civil year to 1 January. Therefore the years given in dates for Acts preceding 1752 are often recorded differently – depending on whether the old or new style calendar is used. In this note, the dates used in Halsbury’s Laws of England have been used. 2 The Earl of St Andrews married Sylvana Tomaselli in January 1988. Prince Michael of Kent married Baroness Marie-Christine von Reibnitz in 1978. 3 The British Monarchy’s website, The Duchess of Kent – Public Role 4 ‘Fiancée secures royal succession by abandoning her Catholic faith’, The Times, 1 May 2008 5 More information about the gender restrictions on the succession are set out in Library Research Paper 09/24, Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill 2008-09 6 All references in this note to ‘Catholics’ are to Roman Catholics. 3 withdrawn himself out of this kingdom; has abdicated the government; and that the throne is thereby vacant. 7 On 12 February 1688 a declaration was drawn up affirming the rights and liberties of the people and conferring the crown upon William and Mary, then Mary's children, and, failing any heirs, Princess Anne and her heirs; and failing also that, William’s heirs. Once the declaration had been accepted by William and Mary, it was published as a proclamation. The declaration was subsequently enacted with some additions in the form of the Bill of Rights 1688, and the Acts of the Convention Parliament were subsequently ratified and confirmed by the Crown and Parliament Recognition Act 1689 which also acknowledged the King and Queen. In this way, the Bill of Rights was confirmed by a Parliament summoned in a constitutional manner and thereby acquired the force of a legal statute and appears as such on the statute book.8 The portion of the Bill of Rights affecting the right of succession reads as follows: And whereas it hath beene found by experience that it is inconsistent with the safety and welfaire of this protestant kingdome to be governed by a popish prince or by any King or Queene marrying a papist the said lords spirituall and temporall and commons doe further pray that it may be enacted that all and every person and persons that is are or shall be reconciled to or shall hold communion with the see or church of Rome or shall professe the popish religion or shall marry a papist shall be excluded and be for ever uncapeable to inherit possesse or enjoy the crowne and government of this realme and Ireland and the dominions thereunto belonging or any part of the same or to have use or exercise any regall power authoritie or jurisdiction within the same [And in all and every such case or cases the people of these realmes shall be and are hereby absolved of their allegiance.9] and the said crowne and government shall from time to time descend to and be enjoyed by such person or persons being protestants as should have inherited and enjoyed the same in case the said person or persons soe reconciled holding communion or professing or marrying as aforesaid were naturally dead [And that every King and Queene of this realme who at any time hereafter shall come to and succeede in the imperiall crowne of this kingdome shall on the first day of the meeting of the first Parlyament next after his or her comeing to the crowne sitting in his or her throne in the House of Peeres in the presence of the lords and commons therein assembled or at his
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