Anne Twomey, Professor of Law at Sydney University and author of The Chameleon Crown: The Queen and Her Australian Governors, gave a talk on 27 September at the Constitution Unit on the possibility of amending the rules of succession to the British throne and the role of those Commonwealth countries where the Queen was head of state – the realms – in this process.
Pointing out that current talk of ending male primogeniture and some anti-Catholic discrimination was merely the latest in a series of attempts to reform succession, Professor Twomey highlighted the reluctance of recent governments to actually implement reform – allegedly because of the complexity of dealing with the realms.
This reluctance was unfounded. Professor Twomey began with an outline of the Statute of Westminster, which in 1931 formally recognised that the Dominions of the Empire possessed full responsible government: the legislatures of the Dominions now had the power to amend or repeal existing British laws affecting them, including the Act of Settlement.
To prevent each Dominion from creating its own rule of succession and thereby ‘bifurcating’ the personage of British crown, two safeguards were enacted. First, Section 4 of the Statute gave the British Parliament power to legislate for the Dominions with their consent. Secondly, the Preamble to the Statute stated that any alteration to the succession would have to be agreed by the legislatures of all the Dominions and the UK, granting each of the Dominions an effective veto over changes to the royal succession.
The Statute of Westminster, argued Professor Twomey, remained the source of much confusion surrounding the question of the succession and the realms. However, much had changed within the Commonwealth since the Statute was passed by Parliament. Nowhere, now, did Section 4 still apply – South Africa was now a republic, for example, and all other former Dominions had ended the power of the UK to legislate for them. Any legislation passed in the UK regarding the succession would not therefore apply in the realms of its own power, though of course, they might well (and probably would) pass equivalent legislation of their own.
We in Britain might ask whether there remained a need to consult with the realms at all over such matters. Professor Twomey thought that we should, in order to avoid a potential situation where different monarchs or heirs existed simultaneously across the realms. This was best understood by looking at the different arrangements in the former Dominions by which amendment of the rules of succession would be brought about.
In New Zealand, for example, since the British Act of Settlement was in 1988 effectively converted into New Zealand law, any change in the UK would not automatically apply in New Zealand, unless they decided otherwise. In Tuvalu, where an eccentric mix of royalism and popular sovereignty underpinned the constitution, any change in the UK would in fact automatically apply, unless the Tuvaluan government decided otherwise (in the name of the Tuvaluan people). Both of these cases indicated how relatively straightforward any change would be to accomplish in unitary states.
However, Australia and Canada – both federal states – presented more worrying obstacles. For a start, there was the question of precisely how many crowns existed in Australia. Professor Twomey suggested that since all of the state premiers could consult the sovereign directly, there could theoretically be a crown for each state, adding a new layer of complexity to the situation. A blind eye had been turned to this specific question. In any case, with anti-discrimination laws in force in each state, it was unlikely that any Australian state would refuse to go along with the proposed reforms.
In Canada meanwhile, while we could safely say that there was only one crown, the Constitution Act of 1982 brought the provincial legislatures into the constitutional amendment process. That of course created a potential hurdle in the form of Quebec.
In short, Professor Twomey concluded by suggesting that the problem was much more manageable than usually claimed, but we should not be under any illusions about the obstacles that still persisted. The fundamental problem was not so much obtaining consent to the (limited) policy change itself but how to get everyone to act with reasonable simultaneity.
In the question and answer session that followed, a number of interesting points were raised, not least about the possible role of Scotland (as a sort of British Quebec) if the Act of Settlement was to be amended. Professor Twomey also noted that Australian monarchists were usually supportive of ending male primogeniture and religious discrimination since it made their task easier in defending the monarchy to fellow Australians. It was also wondered whether it would prove viable to abolish only one part of the religious discrimination in the Act of Settlement without also dealing with the rest. Concern was voiced over the recently imposed severe freedom of information restrictions exercised over material relating to the monarch, which naturally inhibited those – like Professor Twomey – seeking to write about such important issues.
The summary of Anne Twomey’s talk on 27 September places on the record exactly the sort of public airing that important features of the government’s proposals deserve but have not received.
At present, the government is committed to alter the rules of succession to the crown by substituting gender blind for male only primogeniture and amending the Act of Settlement so that heirs will not be disqualified if they marry Roman Catholic spouses. Change will in practice require the agreement of the fifteen other Commonwealth countries – the realms – where the Queen is also head of state.
The government continues to play the issues close to its chest and to fend off Parliamentary interest. At the time of writing, for example, it is not known either whether the government will seek to raise the issues with the realms at the late October 2011 Commonwealth Heads of Government Meeting (in Perth, Australia) or in what terms.
To some this conduct may be thought typical of governmental behaviour which stems from ingrained habits of regarding its own nationals as subjects not citizens. The Act of Settlement – devised over 300 years ago at the height of the struggle against European Roman Catholic states – deserves a more open-ended, public and informed review. Removing the disqualification in respect of marriage to Roman Catholics amounts in discrimination terms to no more than a distinction without real difference: heirs themselves will still not be able to be Roman Catholics and, in addition, will still have to be in communion with the Church of England.
Will the government sponsor an open review of these arcane rules and, if not, why not?