Settling for Reform


Change can be dealt with in different ways and the British certainly have their own way of going about it; usually reluctantly bending to circumstances rather than being swayed by ideological considerations. In the current debate over the laws of succession and the reform of the 1701 Act of Settlement, contemporary beliefs and tradition find themselves in opposition, with the former appearing to have an unstoppable momentum. Which is welcome news for the reformers. Whilst changing the law of succession has been on the agenda it has been quietly left aside for years and it took the news of the Duke and Duchess of Cambridge’s first child to take matters to critical mass. At first glance the issue seems a straightforward one: an end to male primogeniture, meaning that if William and Kate’s first child is a girl she cannot be supplanted by the arrival of a younger brother in the future. In a phrase: gender equality. But for others the British constitution is an almost sacred inheritance shaped by history and custom. A thing rarely to be tinkered with, let alone given major overhauls, and only in the most exceptional of circumstances. Which means that although the debate is taking place within a narrow circle of the ruling elites it is a heated one. Progressive reform crossing the red line of tradition. The reformers expect to have their way, but there may be a surprise or two in store before the issue is decided. The task of steering the legislation through Parliament has been given to Deputy PM?Nick Clegg. The change will need to be legislated for in all 16 Commonwealth realms – the UK, Australia, New Zealand, Canada, Jamaica, Antigua and Barbuda, the Bahamas, Barbados, Grenada, Belize, St Christopher and Nevis, St Lucia, the Solomon Islands, Tuvalu, St Vincent and the Grenadines and Papua New Guinea. But what seems a clear principle – equality – becomes much more complex when it becomes enshrined in law and MPs from both sides of the House quickly raised their fears.

Nicholas Soames, a renowned parliamentarian and a trusty war-horse for the right-wing of the Conservative Party, cited the dangers of unintended consequences. Mr. Soames, who is a grandson of Sir Winston Churchill and lifelong friend of the Prince of Wales, expressed concerns that abolishing male primogeniture would also impact the law that governs hereditary peerages. Mr Clegg responded robustly: “I’ve heard the suggestion that we use the bill to tackle the gender bias in hereditary titles, where titles and the benefits that come with them leapfrog eldest daughters and are handed down to younger sons or can be lost entirely when there is no male heir. Personally, I am sympathetic to that reform and I can see why this seems like the natural time to do it, but for purely practical reasons it cannot and won’t be done in this bill.” Delay offered some respite but offers scant real assurance for Mr Soames who criticized the bill as being the child of “political correctness” and European human rights legislation without being properly considered. He said it was from the “good wheeze school of Government” and had not been considered thoroughly. Chris Bryant, the Labour MP for Rhondda, expressed fears for the constitution itself: “When you pull one of the threads of the constitution, there’s a danger of unravelling the whole jumper. I want to start asking questions about whether you start changing all the provisions relating to the religion of the monarch.” It is at this juncture of the debate that the Prince of Wales is said to have raised concerns. According to what are described as ‘well-placed sources,’ Charles fears for the delicate relationship between the state and the Church of England. During a meeting with Richard Heaton, permanent secretary at the Cabinet Office, the Prince is said to have discussed the position if his grandchild is allowed to marry a Roman Catholic, as the Government proposes. Along with the Prince, church leaders have expressed concern that if a future heir to the throne married a Roman Catholic, their children would be required by canon law to be brought up in that faith. Theoretically it could lead to the constitutional nightmare of an heir to the throne, due to become the Supreme Governor of the Church of England, being a Catholic and therefore barred from being crowned.

The solution suggested is that if any difficulties arose they could be resolved by negotiations with the Vatican. Prince Charles is said to have found this “unsatisfactory and unconvincing”. It would certainly be an odd sight: a British monarch negotiating with the Vatican. A throwback to the days of Henry VIII in the 21st century! If equality is the reformers’ trusty battle cry which justifies storming a few barricades, for the constitutionalists the issue remains one that goes to the heart of the British system of governance. Conservative historian Andrew Roberts writing in The Daily Telegraph spoke out against “tinkering”: “The proposed changes, and the very mention of the European Convention on Human Rights, show how the Government is intent on treating the Headship of State as just yet another civil servant doing a public job. In so doing, they ignore the obvious fact that the entire concept of a hereditary monarchy is so ancient, so unlike any other institution in public life, and so inherently, gloriously, irrational that as soon as one attempts to apply modern criteria to it – especially today’s human rights and equal opportunities legislation as laid down in the European Convention – one undermines the single strongest reason for existence: its uniqueness. It is a phenomenon upon which we should not, in Bagehot’s other phrase, ‘let in daylight upon magic’.” Others take a less romantic view. The aim of the Act of Settlement was to secure the line of succession for Protestant heirs. It was the last of the Stuarts, King James II’s Catholic sympathies and his absolutist tendencies that led to his overthrow in the Glorious Revolution of 1688. His daughter Mary became queen regnant through marriage to her cousin William of Orange. The crisis resulted in the 1689 Bill of Rights which confirmed that the monarch ruled constitutionally (in consultation with parliament). The Bill of Rights established the order of succession to the heirs of Queen Mary II, her sister Anne and her husband William III of Orange. But neither daughter of James II had surviving heirs casting uncertainty on the future succession. Parliament saw the need to ensure that future sovereigns remained within the Protestant faith. The Act of Settlement was the chosen instrument. It was a practical contemporary measure underpinning constitutional government by securing the Protestant line of succession and, undeniably, putting religious discrimination at the heart of the constitution. But these were very different times when religion and politics were virtually one and the same. Although The Act of Settlement was a response to an era of religious strife its ramifications have echoed down the ages.

As much as society has changed with regards to religious and gender equality, royalty continues to live by the laws of the eighteenth century. Some have relinquished their position in the line of succession rather than confirm to its religious requirements. In 1978 Prince Michael of Kent, the Queen’s first cousin, gave up his right to the throne in order to marry the Catholic Baroness Marie-Christine von Reibnitz. A sacrifice in the other direction was made by Autumn Kelly, wife of the Queen’s grandson Peter Phillips. Autumn renounced her Catholic faith prior to their wedding in 2008 so her husband could retain his place as 11th in line to the throne . Indeed, the response from Catholics has been a mixed one and not all are in favour of the reforms. A noteable example is former Tory minister Ann Widdecombe who said: “If we get rid of the provision that the heir to the throne and the Monarch can’t marry a Catholic, we will undermine the link between the Monarchy and the Church of England which will threaten the establishment of the Church, taking with it our last figleaf that we are a Christian country.” A view that inevitably opens up a thorny debate about discrimination towards other faiths and whether or not in the 21st century Britain should define itself through one particular religion. Whatever the pros and cons of the existing system the bare facts, the simple inequality of male primogeniture and discrimination towards Catholics, are hard to circumvent or, in contemporary terms, justify. And the issue will continue to trouble until it is resolved, as the arrival of the Queen’s grandchildren is illustrating. The birth of the Viscount Severn to the Earl and Countess of Wessex in December 2007 saw the infant installed in the line of succession ahead of his older sister, Lady Louise Windsor. It was around this time that Buckingham Palace was said to have agreed that the time had come to change the succession law. With a direct heir due in a few months time the nettle now has to be grasped. But, as is often the case in Britain, even when a constitutional issue seems about to be dealt with resistance appears. The Liberal Democrats much hoped for reforms of The House of Lords were scuppered by Conservative backbenchers. Which led to some political revenge from the Liberal Democrats in voting against proposed boundary changes to constituencies. The coalition government is looking increasingly strained. Nonetheless, Prime Minister?David Cameron is sticking by his guns, as he has done on the issue of gay marriage, and has come out unequivocally in favour of reform. Which leaves the nay sayers angry but rather isolated on the backbenches. But is there, if not resistance, disquiet from the monarchy itself? The Queen is after all a follower of Walter Bagehot and has always been a cautious reformer. Any suggestion of division between 10 Downing Street and Buckingham?Palace was of course dismissed as “ridiculous”. But with regard to the Prince of Wales’ recent discussions little was conceded: “We would never comment on exchanges between the Government and the Prince of Wales.” The Prince of Wales’ office put the ball firmly back in the Government’s court: “Any change in the law is a matter for the Government. If and when the Prince of Wales meets with senior civil servants it is always documented properly in the Court Circular. Issues discussed in those meetings are private.” When all is said and done, the proof of the reform pudding may well be in the constitutional eating.

The publication of the Succession to the Crown Bill has revealed the complexity of the changes that will be required to ensure that the Duke and Duchess of Cambridge’s child, due this summer, will be monarch regardless of its sex. But the reformers assert they are not imposing modern notions on hallowed traditions. Rather that constitutional tinkering and a good deal more has in fact been one of the strengths of the British system and, indeed, of the monarchy itself. MP?Chris Skidmore, writing in The Daily Telegraph, put the argument that the constitution is in fact an ongoing evolution based on pragmatism. Although the Succession to the Crown Bill will be a major reform, overturning centuries of tradition “radical changes to the rules are nothing new, especially when convenience – or more usually crisis – demands it.” History, for Skidmore, shows that the Act of Settlement was a statute suited to particular circumstances, not a constitutional tablet of stone. Skidmore cites the Tudors as a vivid example of how politics has often bypassed statute. Henry VII’s claim to the throne was weaker than Richard III’s and as a matter of realpolitik he asserted his right to the throne by conquest following victory at the Battle of Bosworth in 1485. Thereafter the age of “meddling” by parliament in the succession began and the struggle between absolutism and parliamentarians would be one of the great issues of the early modern period. In Henry VIII’s reign there were no less than three Acts of Succession, each the result of one of Henry’s marriages and which of his daughters would succeed him. In 1533, Mary Tudor, Henry’s daughter with Catherine of Aragon, was disinherited in favour of Elizabeth, his child with Anne Boleyn. Then in 1536, another Act disinherited Elizabeth too, this time giving his son Edward (by Jane Seymour) full rights to the throne.

A few years later the young King Edward’s failing health caused a panic that his Catholic half-sister Mary would succeed him, threatening the reformation of the Church of England. As death approached Edward drew up his own rules for the succession In 1553, as he lay on his death bed aged just 15, Edward drew up his own “devise for the succession” giving the crown to his first cousin once removed Lady Jane Grey in an attempt to thwart his half-sister. It proved a death sentence for Lady Jane who ruled for nine days until Mary rallied her forces. The fiercely Catholic Mary proved to be a divisive but brief lived monarch, reigning for just five years and dying without issue. She was succeeded by her half-sister Elizabeth, as fiercely anti-Catholic as Mary had been anti-Protestant. One of Britain’s greatest monarchs, Elizabeth died childless in 1603. Yet again the laws of succession were found controversial if not outright unworkable. If Henry VIII’s statute had been followed Elizabeth would have been succeeded by Lady Anne Stanley, daughter of Henry’s sister Mary Tudor, Queen of France, consort of King Louis XII. The practical solution, far from perfect though it was, saw Parliament turn to King James VI of Scotland. For Skidmore the succession struggles of the seventeenth and early eighteenth century further illustrate what had become a ‘Byzantine complexity’. On this view the organic approach has proven flawed, leaving the statute books with an unwanted tangle of legislation to navigate. The proposed reforms require amendments to a plethora of previous laws: the Coronation Oath Act 1688, the Bill of Rights 1689, the Act of Settlement 1701, the Union with Scotland Act 1707, , Princess Sophia’s Precedence Act 1711, the Royal Marriages Act 1772, the Union with Ireland Act 1800, the Accession Declaration Act 1910, and the Regency Act 1937. All of which show that the constitution has always been a response to the needs of the age and, for Skidmore, the current reforms “fit seamlessly into a tradition of monarchy adapting to the nation that it governs.” The traditionalists have made their stand, reminding the nation of its distinctive history and inheritance; but, taken as a whole, pragmatism has been the hallmark of the monarchy and, indeed, of British politics generally. Whether, as the traditionalists fear, the constitution is really beleaguered on all sides and ready to unravel only time will tell. In the current debate Parliament will have the final say and will almost certainly vote for reform, with a few carefully noted exceptions and caveats; which is very much the British way of doing things. (Extract from Royalty Magazine  Vol. 22/11)

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