The Succession to the Crown Act 2013 has landed

bob-morris

On Friday 26 March 2015 the 2013 Succession to the Crown Act was finally brought into force. Bob Morris offers an overview of the Act and explains why it has taken so long to come into effect.

At practically the last gasp of the now dissolved Parliament, the bringing into force of the Succession to the Crown Act was announced by the Deputy Prime Minister Nick Clegg in his capacity as Lord President, on Friday 26 March 2015 [Hansard, Lords, HLWS483].

Many people may well have concluded that all this had been accomplished when the Act was passed in 2013. Some may even have thought that it had all been settled when the Prime Minister secured agreement to proceed on 28 October 2011 at the Commonwealth Heads of Government Meeting (CHOGM) at Perth, Australia. It may be a mark of how little general interest there was in the final consummation that the first publications to greet it were the Hello and Elle magazines.

However, the latest development is not insignificant. What follows seeks to:

  • Recapitulate what the Act is about
  • Explain why it has taken so long to come into force
  • Discuss how the changes are to be understood

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Reigns in Spain and the ‘A’ word (again) in the UK

Robert Morris explains why the abdication of the Spanish King is unlikely to lead to a similar move by Queen Elizabeth II.

The recent announcement of the abdication of King Juan Carlos of Spain in favour of his heir, Felipe, has renewed discussion about abdication in the UK. Indeed, the abdicating King – anxious no doubt to make the best of a not very happy job – is reported as saying: ‘I don’t want my son to grow old waiting like Prince Charles’. Despite substantial demonstrations in favour of a republic, the abdication seems to be proceeding.

Will it happen here? Will Elizabeth II make way for her heir, Prince Charles? The present consensus is that it will not. This is hardly news. But there are two new twists offered on the usual account that it will not happen because the Queen believes she has to serve for the whole of her life.

Religion makes abdication impossible

The first twist is the suggestion by the Daily Telegraph that abdication is actually impossible because, unlike the Spaniards, the Queen has been consecrated in the religious ceremony of the coronation and the British monarchy is therefore ‘a sacerdotal system’. This was not the case with her uncle, Edward VIII, because he left the throne before becoming an anointed ruler as the result of a coronation ceremony. He was, however, undoubtedly King – a fact of law in no way dependent on coronation. This fact may be taken to emphasise that in UK law the sovereign occupies first and foremost a secular public office.

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Is Britain a Christian country and, whatever the case, what then?

Unusually, British politicians have been talking about religion this Easter.

(i) Events, dear Boy

First, the Communities and Local Government Secretary, Eric Pickles, whose Department leads on faith relations, and then the Prime Minister, David Cameron, both averred that Britain was still a Christian country – Mr Pickles, with customary brutality, reminding us that there is an established Church and advising people to ‘get over’ that fact. A large number of worthies then wrote jointly to the Daily Telegraph (editorially sympathetic to establishment) to challenge ministers’ views, labelling them as both false and divisive in a pluralised society of multiple belief and unbelief. This was countered by a joint letter disagreeing

This lukewarm pot was then stirred by the Deputy Prime Minister and leader of the Liberal Democrat party, Nick Clegg. Out of the blue in a radio programme, he floated the thought that the day was coming when church establishment should be stood down for everyone’s benefit, including that of the Church of England. The Prime Minister and others immediately rejected this view – long Liberal Democrat policy deriving from that party’s ancient Christian Nonconformist roots.

Understandably, the Archbishop of Canterbury, Justin Welby, head of the church established in England (and long ago disestablished in Ireland and Wales) felt moved also to comment – no tablets of stone, just a blog. Acknowledging that church attendance had greatly declined, he maintained that nonetheless much of the nation’s life had been ‘shaped and founded on Christianity’, and that ‘in the general sense of being founded on Christian faith, this is a Christian country’. Characterising objectors as atheists, he pointed to Muslim, Hindu and Sikh support for the Prime Minister’s remarks. This claim, which has been called ‘Anglican multifaithism’ [N. Bonney (2013) Monarchy, religion and the state], is a trope employed by Anglicans to assume a new role and purport to speak for the interests of all religions. On offer is an implied conduit into government valued apparently by a number of non-Christian faiths but not willingly by minority Christian denominations.

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The UK Monarchy: Moving to a regency that dare not speak its name?

Bob Morris

The recent consolidation of the Queen’s and the Prince of Wales press offices under the Prince’s former press secretary and a YouGov poll(i) apparently showing warmer feelings towards the Prince’s deputising increasingly for his mother draw attention again to the gradual anticipatory transfer of functions between the Queen and her heir. How constitutionally is all this to be understood?

Abdication – the ‘A’ word

We are firmly told there isn’t going to be one. The Queen swore to serve all her days and she continues to mean it. Some other – lesser? – monarchies use abdication to pass on the throne to mature heirs with yet many years still in front of them(ii) and before the abdicator is senescent. That way the crown may still be held for decades and the appearance of continuity – thought to be one of monarchy’s advantages – preserved.

In such cases, abdication has been a response to generational arithmetic which, if its course is not revisited, could with modern longevity result in a succession of gerontocrats.(iii) Thus without an ‘A’ event and, just taking an example almost at random, it is possible to imagine a monarch plausibly likely to survive until a few years past their centenary to be succeeded by an octogenarian ruling for a decade or so to be succeeded in turn by a mere sexagenarian pushing 70 themselves succeeded by a similar aged heir.

Vernon Bogdanor is not moved by the arithmetic argument: ‘…the notion of abdications strikes at the heart of the British monarchy. For it implies that monarchy is a vocation that one can choose or abandon at will.//As soon as the monarchy becomes a matter of choice, its usefulness is greatly lessened’.(iv) But the first point naturally raises the question whether monarchy is not in the end a public office like any other public office. If so, then the view of the office holder would normally be subordinate to the interests of good government – and not entirely without regard either to the demands upon the incumbent in their old age. The second point – utility – raises just what, constitutionally, monarchy nowadays does – a point dealt with further below.

Regency

The law is clear: there can be a regency only when it can be authoritatively certified that one is necessary because of the mental or bodily infirmity of the sovereign (or for some other definite cause). The Regent has to be able to satisfy all the normal requirements for succession (Including not being a Roman Catholic but being in communion with the Church of England) and swear the relevant oaths. Prohibited from assenting to Bills changing the succession or reneging on the constitutional guarantee to the Church of Scotland, the Regent otherwise assumes all the sovereign’s functions.

Happily, the statutory criteria for a regency cannot at present be satisfied. There may come such a day but, without mental infirmity for example, bodily infirmity would have to be quite extreme to render the sovereign ‘incapable for the time being of performing the royal functions’ – the key statutory test. At what point, for example, would the sovereign become incapable of signifying assent – what sufficient minimal physical gesture, and as assessed by whom – to statutes, orders in council, church and other appointments recommended by ministers?

Short of becoming regent, an heir has no ‘hard’ constitutional position except to represent the sovereign for purposes that do not require the exercise of powers only the sovereign can exercise.(v) In a modern ‘welfare’ monarchy, this leaves quite a lot of room in the case of general ‘public duties’. For example, there is no reason why the heir could not read the sovereign’s speech at fresh Parliamentary sessions. Similarly, the heir could represent the sovereign at a range of public events varying from the annual review of the household regiments to attending the annual assembly of the Church of Scotland or leading on inward and outward state visits. The heir has already substituted for the sovereign at the biennial Commonwealth Heads of Government Meeting.

Present position

What seems to be happening is a movement to co-reigning where the sovereign is closely and explicitly shadowed by the heir but as the junior partner. The talk of an imminent ‘soft’ regency that is sometimes heard seems misplaced because no transfer of constitutional power is involved. There are ancient precedents for co-reigning monarchs but in very different circumstances: the aim seems mostly to have been to signify a preferred succession in turbulent times rather to arrange any real, immediate transfer of authority. Nonetheless, what is on hand does seem to be more a species of co-working than any other recognisable model.

Does any of this matter?

Were the sovereign still also the chief executive, then wooliness would be best avoided. Situations where there could be doubt whether an ageing sovereign could be relied upon to rein in a reckless heir’s dabbling in military matters or plundering the treasury cannot now arise. This is because the monarch is no longer the chief executive of the state: the modern head of state function in the UK is nowadays best understood as the hereditary president of a de facto republic.

The former key constitutional functions of granting Parliamentary dissolutions and selecting prime ministers no longer exist: the first was removed by the Fixed-term Parliaments Act 2011 (which substituted a statutory procedure) and the second by agreed procedures for government formation set out in a Cabinet Office Manual. The royal assent to Bills has long been a routine formality and, it has recently been argued, is ripe for statutory regulation.(vi) Otherwise no constitutional or executive function is exercised except on the advice of responsible ministers. Nonetheless, as Vernon Bogdanor points out, there are certainly important monarchical functions left, chief among them being the relationship with the prime minister, head of state in fifteen other Commonwealth ‘realms’ and headship of the Commonwealth itself. In addition, the crown is one of the few institutions operating throughout the UK. Though the longer term range of the role must be in doubt, the sovereign remains also involved in forms of UK-wide civil religion.(vii) The ‘welfare’ monarchy may beneficially continue to draw attention to causes that otherwise might struggle to obtain recognition. Helping an ageing sovereign more closely has advantages for both the sovereign and the heir, and co-working prepare the way more acceptably for accession – even to the point perhaps of smoothing passage to headship of the Commonwealth for accession to which there are, as yet, no agreed rules.

It seems, therefore, that the nation can expect a period of experimentation with co-working where, perhaps opportunistically, roles are transferred in relation primarily to public duties. One outcome should be a better prepared heir. Another – when that heir succeeds – might be a fresh look at the merits of resort in the long run to abdication as a part of succession planning.

Footnotes
(i) ‘Feet up, Ma’am, Let Charles do the work, Sunday Times 26 January 2014.
(ii) Thirty-two years each in the case of Queens Juliana and Beatrix of the Netherlands.
(iii) See Robert Hazell’s post – ‘Shouldn’t we allow our monarchs to abdicate, like the Dutch’ – 19 February 2013.
(iv) Daily Telegraph 20 January 2014.
(v) Brazier R. (1995) ‘The constitutional position of the Prince of Wales’, Public Law, 401-416, discusses the then minimal substance, a discussion taken further in Evans v Information Commissioner [2012] UKUT 313 (AAC). See also Perry A. (2013) ‘Constitutional Conventions and the Prince of Wales’, Modern Law Review, 1119-1128.
(vi) Brazier R. (2013) ‘Royal Assent to legislation’, Law Quarterly Review, 184-204.
(vii) For a recent discussion, see Bonney N. (2013) Monarchy, Religion and the State: Civil religion in the United Kingdom, Canada, Australia and the Commonwealth (Manchester, Manchester UP).

SUCCESSION TO THE CROWN BILL

7th March 2013

LORDS COMMITTEE STAGE 28 FEBRUARY 2013

The power of the well-phrased question

Bob Morris

There is nothing in Parliamentary debate quite like the well-phrased question for cutting to the heart of things. An issue is encapsulated and the minister has to respond. Unlike podium assemblies where speakers may hector without interruption, the UK Parliament can suddenly be made alive by a pithy intrusion.

Under examination was the clause that would abolish the rule dating from 1689 that no-one married to a Catholic may succeed to the throne. Discussion turned to an amendment (subsequently withdrawn) which would have permitted the sovereign to be a Catholic but made arrangements during the reign for the Supreme Governorship to be shouldered by an Anglican qualified under the Regency Acts. As noted previously – including by the Commons Political and Constitutional Reform Select Committee (PCRSC) in December 2011 (HC 1615) – removal of the Catholic marriage disqualification leaves intact the absolute ban on Catholics and anyone else not in communion with the Church of England from succeeding. The latter would, of course, disqualify Catholics (and most non-Anglicans) from succeeding even if the explicit ban on Catholics were removed.

Lord Forsyth (a Scottish episcopalian, former cabinet minister and Scottish Secretary) asked what was it that the government were trying to achieve with the provision:

‘Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic?’ (Hansard, Lords, 28 February 2013, col. 1230)

He added that he would be horrified if it were the latter. Whilst it was a good thing that people who wanted to marry should be able to do so, he had thought that the provision ‘was part of a wider agenda of ending discrimination against Catholics. We need to understand why the Bill has not provided for that…’ Lord Stevenson then intervened to point out that the amendments tabled on the point went ‘to the heart of whether the present Anglican establishment in England can or even should remain in its present form’ and suggested that it was time for further Parliamentary consideration in some appropriate committee. This suggestion gained some support though not from the minister who sheltered behind the fiction that such matters were for Parliament alone itself to decide.

None of this will stop the Bill. Parliament knows when it is being bounced and in any case the things in the Bill are not in themselves bad things that should be stopped. On the other hand, what their Lordships pointed out was that, in the words of a PCRSC witness, ‘one cannot half open a can of worms, because all the worms will come out’.

Has the time come for Parliament to take a closer look? We shall see. What is certain is that the Forsyth question will not go away.

SUCCESSION TO THE CROWN BILL – LORDS SECOND READING 14 FEBRUARY 2013

26th February 2013

This was largely a repeat of the Commons discussions but without the smidgeon of republicanism that was voiced there from Labour back benches. As might be expected, there was in the Lords more concern about the possible implications for peerage descent than changing to gender neutral primogeniture for royal succession. At the outset, the minister, Lord Wallace of Tankerness, uttered dire – for the Lords – warnings that the House should not seek to meddle in any way with a package so painstakingly assembled with the agreement of the fifteen Commonwealth realms also having the UK monarch as head of state.

A shared concern between the two Houses focused on whether permitting heirs to marry Catholics risked collision with church establishment in England. Would the children of such ‘mixed’ marriages have to be brought up as Catholics? The government was unable, as before, to offer cast iron assurances in the case of an issue over which it had no control except to reiterate that no children brought up as Catholics could succeed. In practice, it seems that the Catholic church itself is not in a position to enforce its wishes and the language of its relevant canon is less than definitive on the point.

In a way, the concern over the upbringing of the children of ‘mixed’ marriages is a proxy for perplexity about whether the centuries-old ban on Catholic sovereigns should remain. If the only impediment is an alleged incompatibility with the sovereign’s position as Supreme Governor of the Church of England, then modern sympathies with religious equality (which we do not yet have) – as opposed to religious freedom (which we do have) – are set at odds with the interests of one particular denomination. Does this entail disestablishment or are there ways around the difficulty? The opposition spokesman, Lord Stevenson of Balmacara, outlined some possible approaches, one of which could relieve the sovereign of compulsory membership of the Church of England but leave that Church able to remain as a national church in England. As a Catholic, Lord Deben (better known as John Selwyn Gummer), deplored continued Catholic exclusion and may be expected to table amendments for the bill’s later stages from 28 February much on the lines perhaps of those urged by a fellow Catholic, Jacob Rees-Mogg, in the Commons.

The government will no doubt resist resort to the bill for any larger purposes. It will point out that such changes would entail consulting the other fifteen realms all over again and that, in any case, it has no intention of altering the status of the Church of England. The government will get its way more likely than not. On the other hand, removing only one of the Catholic disqualifications continues to draw attention to the ones that remain not only for Catholics but also for everyone else not ‘in communion with’ the Church of England. In much the same way, hereditary peers’ concern about changing peerage gender rules draws attention to the anomaly that titles may still be inherited and some of their bearers become members of the legislature in that capacity.

As tentatively suggested by the Commons Political and Constitutional Reform Committee in December 2011*, has the moment come for Parliament to take time in one of its committees to think further about the form of church establishment in England? The government’s insistence that no change may be contemplated unless on the initiative of the Church is, on one interpretation, a rather cruel way of putting the onus on that body alone when wider public interests are at stake. Perhaps the minister will not be able to prevent the remaining Lords proceedings from 28 February offering clues on current Parliamentary thinking – that is, if their Lordships and Ladyships care to look at all beyond the immediate and limited religious provisions of the bill.

* ‘Rules of Royal Succession’, 11th Report, Session 2010-12, paragraph 14.

Written by Bob Morris, formerly Home Office Under Secretary responsible for Constitutional Affairs. Leader of the Unit’s work on Church and State and also expert on FoI.

SUCCESSION TO THE CROWN BILL – THE RELIGIOUS TESTS

Bob Morris

As the bill goes to the Lords, it might be useful to reflect further on the detail of what was said in the Commons debates on 22 and 28 January about the place of religious tests in our constitution.

Of the three tests, two – ineligibility of Catholic believers and those married to Catholics – are directed explicitly at Catholics and one – the requirement to be ‘in communion with’ the Church of England – excludes Catholics and all others unable to satisfy the requirement. The bill would abolish only the second of the three tests.

The proceedings on 28 January were dominated by the attempt of Jacob Rees-Mogg to remove the remaining tests:
‘As the discrimination on the grounds of sex is no longer necessary, or can no longer be argued for logically, nor can exclusions on the grounds of religion.’ [Hansard, Commons, 29 January 2013, col. 697]

Stressing that he was not opposed to church establishment per se, he proposed a device which, he claimed, would permit a Catholic to succeed without challenging the sovereign’s current roles in respect of the Church of England. The device turned on using the Regency Acts to identify a Protestant who could assume the sovereign’s duties much as Catholic and other non-Anglican cabinet ministers relinquish any Anglican related duties to Anglican colleagues during their term of office. Whilst the device was technically inadequate and imperfect, it gave MPs an opportunity to reflect on the fact that the bill fell short of dealing with the other remaining disqualifications affecting Catholics and others.

Understandably, this discussion – as on 22 January in a very thin House – was dominated by Catholics. Interestingly, they appear to have felt obliged simultaneously to object to the disqualifications and declare something like reverence for Anglicanism – the latter position slipping slightly only once (col. 708) when the alleged elasticity of Anglican’s demands on adherents was naughtily raised. Loyalty to the monarchy was also stressed, as if that were nowadays still in question for Catholics. Jacob Rees-Mogg pressed the matter to a division and lost by three to one.

What may be made from all this? As a proportion of those voting on a probably lightly whipped occasion, the supporters of the amendment (not all Catholics and not joined by the Opposition front bench) constituted just over nine per cent but still nearly six per cent of the whole House. Only rarely in the two days was the point being circled and not expressed voiced explicitly, that is whether the headship of the state needs any longer to be yoked to a particular religious denomination. An SNP Catholic, Angus MacNeil, said of the bill:

‘It is only a halfway house – a real dog’s breakfast of broken biscuits. It deals with succession and partially with freedom of religion, but it leaves the question of full freedom of religion untouched.’ [Hansard, Commons, 22 January 2013, col. 226]

Another MP, Nia Griffith, thought that there was a further downside in persisting with the religious tests:

‘…if someone is expected to take on the role of monarch, we are putting them in a situation in which they will have to pay lip service to a faith, possibly one in which they do not believe, making a mockery of those who have a true faith.’ [Hansard, Commons, 22 January 2013, col. 237]

The government was, of course, not having any of this. To be fair, the bill was after all a strictly limited exercise pre-agreed with no fewer than fifteen Commonwealth countries. The minister, Chloe Smith, in what appears to have been a carefully pre-scripted formula, was adamant:

‘…let me state again that the Government are absolutely committed to the Church of England as the established Church, with the sovereign as its Supreme Governor. We consider that the relationship between Church and state in England is an important part of the constitutional framework. It has evolved over centuries and the Government have no intention of legislating to disestablish the Church of England. It is important to state that. The Government’s view is that allowing a person of the Roman Catholic faith to accede to the throne would clearly be incompatible with the requirement for the sovereign to be in communion with the Church of England.’
[Hansard, Commons, 28 January 2013, col. 721]

She said this in reply to the senior government backbencher, Nicholas Soames, who asked the minister whether she agreed that what Rees-Mogg had with his interventions ‘just shown is that what has been completely settled and without question can now be open to challenge? Does she believe that this is a sensible way to proceed when overturning 1,000 years of British history?’. (col. 721)

Has the genie been now let out of the bottle? No doubt the government will get its way in the Lords, but it will be interesting to see what the current range of opinion now is there. How many, for example, will be with Gerald Howarth –
• ‘I believe that the established Church and the Crown are indissolubly linked.’ [Hansard, Commons, 22 January 2013, cols 252-3.]

how many with Chris Bryant –
• ‘I do not want to disestablish the Church of England, but I think it could be established in a different way.’ (col. 233)

and how many again with Nia Griffith –
• ‘The clause is a missed opportunity. It misses the opportunity to decouple the role of monarch from a specific role in the Church of England.’ (col. 237)

SUCCESSION TO THE CROWN BILL – POSSIBLE UNTOWARD EFFECTS?

This asks whether the Bill risks any untoward, unintended practical consequences and considers what, if any, may be among the longer term, less direct implications for church establishment in England.

Direct effects

The short Bill contains three provisions: gender neutral primogeniture is to be retrospective from the date of the CHOGM 2011 agreement; heirs may marry Catholics without disqualification; and prior sovereign marriage approval is restricted to the first six in line where marrying without approval entails disqualification from succession without invalidation of marriage.

The Bill does not disturb the requirements that no Catholic may succeed, that the heir must be in communion with the Church of England, must make a declaration on accession that swears fidelity to the Protestant faith, and must swear at coronation to uphold the Church of England. It is therefore the case that heirs who become Catholics are still barred from the throne. This only partial removal of Catholic disabilities is why Catholic reception of the change has been one of muted joy – muted, that is, in England: Scottish Catholics have customarily been more outspoken about the remaining disqualifications.

The Prime Minister, David Cameron, made the government’s position clear at the conclusion of the CHOGM meeting on 28 October 2011:

The great strength of our constitutional approach is its ability to evolve. Attitudes have changed fundamentally over the centuries and some of the out-dated rules  – like some of the rules of succession – just don’t make sense to us any more

…we have agreed to scrap the rule which says that no-one who marries a Roman Catholic can become monarch. Let me be clear, the monarch must be in communion with the Church of England because he or she is head of the church. But it is simply wrong that they should be denied the chance to marry a catholic if they wish to do so. After all, they are already quite free to marry someone of any other faith.[1]

Catholic marriages

Concern has been expressed in both Commons and Lords committees and in the press[2] about the implications of the requirement in Catholic ‘mixed’ marriages that the children should be brought up as Catholics. The general concern is that somehow the way would be opened to Catholic succession. Such a result would  conflict with the requirement that the sovereign is automatically Supreme Governor and church establishment in England threatened accordingly.

It seems uncertain just how far Catholics in ‘mixed’ marriages are obliged by Catholic canon law to insist that any children must be brought up in the Catholic faith. A Catholic Herald article[3] was emphatic that children had indeed to be brought up in the Catholic faith but, although the present writer cannot pretend to be an authoritative interpreter of the relevant Catholic canons, they do not seem as emphatic as the Catholic Herald has claimed.[4] On the other hand, there is no doubt that any heirs who professed the Catholic faith would be excluded from the throne. There would be no need for the sovereign to withhold marriage consent to prevent a Catholic succeeding because the law would in any case prevent it. A clash of the kind envisaged would not therefore be possible. It is very likely, too, that unless they positively wishing to disqualify themselves, Windsor family members within shouting distance of succession will continue to be careful themselves to remain in communion with the Church of England and – to avoid any possible complications – choose Protestant brides

Indirect effects

The following looks at possible consequences for the monarchy on the one hand and the Church of England on the other.

Changing rules of succession cannot avoid drawing attention to the peculiarities of monarchy. Any system of primogeniture, gender neutral or not, must nowadays seem objectively a rum way of running a political system. Its very basis is to select a head of state as the result of accident of birth. Conversely, of course, the fact that the system produces certainty of a kind is in its favour. There is no demeaning push-and-shove scramble to slot celebrities – political or otherwise – into the position; there is a family continuity across generations; and the absence of merit can be, as Lord Melbourne declared of the Garter, a positive attraction.

The monarchy’s survival is the prime example of the effects of the relative absence of discontinuity in our constitution. Occasional Guardian squibs aside[5], it is difficult to believe that the monarchy will be affected adversely at all by the Bill. On the contrary, conditioned to accept the illogicality of the monarchy in the first place, a little apparent ‘modernisation’ can seem proof of the institution’s protean qualities in a situation where its lack of any real executive functions silently makes it politically acceptable. And, until further notice, it will remain a Protestant monarchy.

For the Church of England, the position is somewhat more complicated. Whilst there is an obvious dissonance between a monarchy which operates on a basis of gender equality and a Church which cannot yet bring itself to do so, current difficulties arising from the Church’s troubles over female bishops should not be allowed to mask profounder issues. The truth is that the threats to the Church’s status come less from the legislature than from larger societal changes. The Church has hitherto shown great sensitivity about its established character, that is the degree of its direct involvement with the state and its associated privileges/duties. Though far from moribund, it survives – in England alone – as the last remains of the confessional state mostly dismantled in the 19th century.

Inadvertently perhaps, in voicing its concern about the future of the supreme governorship, the Daily Mail put its finger on an important point: there may be religious freedom in the UK but there is not yet, because of the English establishment, religious equality. In a country where about half the population are now prepared to say that they belong to no religion, where active church affiliation is very much a minority sport, and where important and growing minorities practise non-Christian religions, the gap between the formal position – the Church is there to serve the whole English community – and the reality has continued to grow. Some members have for some time been asking whether sundering the remaining ties with the state might be good for both: a former diocesan bishop, for example, has questioned the continuing relevance of establishment.[6]

A previous blog has drawn attention to Anglican claims that the Church of England may now be regarded as in some way protecting other religions. This is clearly new doctrine in the sense that the role is one the Church has only recently sought to assume.  Moreover, the language suffers from the same difficulty of the coronation oaths: the Church is no more able to protect anyone any more than the sovereign can preserve the Church by virtue of a coronation oath – an oath which did not prevent disestablishment in Ireland or Wales. Perhaps such claims will fall to be regarded as the high water mark of the claims of a Church which nowadays accepts religious freedom but does not wish to concede religious equality.

In this situation, finding firm ground for the Church has been difficult. Its current ‘official’ position judging from the evidence of the Archbishops to the Houses Joint Committee on the Future of the House of Lords is to hold on to what it has, including the twenty-six bishops in the House of Lords whose departure would not in fact effect disestablishment. In the context of the current Bill, great importance has been attached to keeping the sovereign ‘in communion with’ the Church to avoid any inconsistency with that person also being Supreme Governor – a role nowadays devoid of any significant executive function. It is nonetheless that position that the government has endorsed in the Bill by seeking to remove only the Catholic prohibition least threatening to the Church.

It has to be asked whether it is right to keep the remaining anti-Catholic prohibitions and whether the Church should not contemplate more flexible and nuanced positions. If the Supreme Governorship were to become regarded more as a kind of super patronage role for any head of state in recognition of the Church’s historic role in England, would the religious affiliation of the sovereign be crucial? In a similar fashion, Fidei Defensor (handily without a definite article) could be reinterpreted, as the Prince of Wales has suggested, as a slogan/totem of religious freedom.

At present the Church might abhor a Catholic in the office of Supreme Governor because of the theological offence involved. But if the office’s character were changed to reflect what actually occurs, a non-contentious link with the monarchy could remain if wanted – a possibility the Prince of Wales seems to have envisaged.[7] After all, the Church already in fact itself controls all appointments to its senior posts, and legislates for itself under an admittedly advantaged procedure but one not wholly different from that for private bills. Even royal peculiars could keep a special status though one more completely distanced perhaps from the person of the sovereign. In such a situation, the sovereign could be free like everyone else to adopt any faith or none. Such pathways seem more promising than making unhistoric and vapid claims of faith protection. Coronations – which recognise rather than make sovereigns – could rise to new challenges in what Andrew Brown has called an ‘emotional or effective establishment, where the church is a natural theatre of society’s self-understanding’.[8]

Conclusion

The relative complexity – emotional, political, legal, administrative – of these issues are no doubt glimpsed by government. Of course, the government does not wish to plunge into these deep waters. It wants a quick, limited fix without too much argument. Commentators are right that there has been too little public discussion, but not all the blame can be laid at the government’s door. What is needed is fresh, bound-breaking thinking and most of that can best come only from within the Church itself.


[1] http://www.number10.gov.uk/news/prime-minister-unveils-changes-to-royal-succession/ (accessed 28 October 2011)

[2] Commons Political and Constitutional Reform Select Committee, 11th Report 2010-12; Lords Select Committee on the Constitution, evidence session 9 January 2013; Daily Mail 7 January 2013. The latter purported to voice concerns of the Prince of Wales but without any evident authority.

[3] http://www.catholicherald.co.uk/commentandblogs/2011/10/31/why-shouldnt-there-be-a-catholic-‘supreme-governor’-of-the-church-of-england/ (accessed 17 January 2013). The article overlooks the significance of the requirement that the heir has also to be ‘in communion with’ the Church of England. Because no Catholic could therefore succeed to the throne under Mr Cameron’s proposals, much of the article’s relevant argument is vitiated.

[4] See Frank Cranmer’s article 9 January 2013 on the Law and Religion UK website analyzing the relevant canons – http://www.lawandreligionuk.com/2013/01/09/succession-to-the-crown-bill-la-reine-ou-le-prince-le-veult/ (accessed 17 January 2013.

[5] ‘Britain’s Voodoo monarchy – The succession bill puts a ludicrous spin of equality on an institution that is inherently unequal’ – Guardian , 11 January 201.

[6] Peter Selby, Eric Symes Abbot Memorial Lecture, 10 May 2012.

[7] ‘I really can’t think why we can’t have Catholics on the throne’, quoted remark from the memoirs of Lord Ashdown noted at Blackburn R (2006) King and Country (London, Politico’s), p. 119.

[8] http://www.guardian.co.uk/commentisfree/2012/dec/18/church-of-england-traditionalists-hiding-places/ accessed 13 January 2013.

 

Written by Bob Morris, formerly Home Office Under Secretary responsible for Constitutional Affairs. Leader of the Unit’s work on Church and State and also expert on FoI.

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SUCCESSION TO THE CROWN BILL

SUCCESSION TO THE CROWN BILL: SOME REFLECTIONS

Bob Morris

This Bill aims to achieve three things: primogeniture gender neutrality, removal of marriage to Catholics as a disqualification for succession, and limitation to the first six in line to the throne of the sovereign approval requirement for proposed marriages. (The content of the proposals is admirably explained in the Commons Research paper here – http://www.parliament.uk/briefing-papers/RP12-81.)

The provisions have had a long gestation because of the need to consult the fifteen other Commonwealth countries (the ‘realms’) which have the UK sovereign as their head of state. The Statute of Westminster 1931 expresses in effect an expectation that they will be consulted about proposed changes to succession rules and royal style and titles. There is also the very practical imperative that consultation is necessary to prevent different succession rules producing different monarchs for different countries.

How the Prime Minister broached the enterprise to his Commonwealth realm colleagues is unknown because the relevant letter remains undisclosed. Publication would help understanding of which parts of the plan were thought to fall within the 1931 expectations and which were not. Gender blind primogeniture clearly would have so fallen, but Catholic marriages and certainly the Royal Marriages Act 1772 could be thought to fall into different categories.

Each provision of the Bill is admirable in its way but the government’s wish to pursue an expedited procedure in Parliament betrays – in its unspoken wish to curtail debate – some anxiety over how these parts are to be understood against each other and related provisions. Although the government has been careful to set out the reasons for expedition responding to the criteria recommended by a Lords committee, its position is somewhat undermined by the fact that the legislation has from the beginning been expected to have retrospective effect. The government will no doubt argue that Parliament should not interfere with a package so laboriously negotiated with fifteen other countries. There is also the fact that few, surely, would wish to submit the Cambridges to any more uncertainty than is necessary.

Primogeniture gender neutrality

Removing the male preference system could prompt the question why primogeniture should determine succession rather than some merit rule. But, as Lord Melbourne remarked about the Garter, monarchy has the advantage that ‘there is no damned merit’ about it. Precisely – it is certainty that is required rather than qualification.

Catholic marriage

Because abolishing this disqualification leaves untouched the remaining Catholic disqualifications, the question is naturally why should any remain. That is, it will still be the case that the monarch cannot be a Catholic and, moreover – a rule applying generally – will also have to be ‘in communion with’ the Church of England. This latter rule means that, even if the explicit ban on Catholics succeeding were repealed, an implicit ban would remain – including on everyone else not ‘in communion’ i.e. non-Trinitarian Christians, all non- Christian believers and all non-believers.

The customary defence to preserving the explicit and implicit Catholic bans is that repeal would be incompatible with the monarch remaining Supreme Governor of the Church of England. That would have force were it still the case that the monarch exercised any executive function. Whilst that was true when the present rules were devised at the end of the 17th century, it is certainly not true now. Similarly, the monarch’s coronation oath to uphold the Anglican church has no force. In practice, the monarch nowadays functions as a patron of the Church where the formal powers – for example, appointing senior clergy – are actually exercised by committees of the Church itself. Whilst the monarch’s writ does still run in the royal peculiars such as Westminster Abbey and St Georges, Windsor, it is not in practice exercisable in despite of the Church’s own wishes even if the peculiars escape episcopal oversight.

Realising that things have changed is one thing: finding ways to respond to what  has occurred is another. The relative absence of UK constitutional discontinuity means at some levels that the gap between appearances and reality can become abnormally stretched. Constitutional catch-up calls for skilled – and opportunistic – practitioners. On some occasions legislation is required but on others re-labelling or reinterpreting could suffice, as suggested above in relation to how ‘Supreme Governorship’ could nowadays be understood. Some loosening of ancient, exclusive ties would seem desirable in our increasingly pluralised society.

The present sovereign has herself voiced reinterpretive language about the modern role of the Church of England. At what was one of the first of the Diamond Jubilee engagements, the sovereign said at a multi-faith event at LambethPalace on 15 February 2012:

Here at LambethPalace we should remind ourselves of the significant position of the Church of England in our nation’s life. The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated. Its role is not to defend Anglicanism to the exclusion of other religions. Instead, the Church has a duty to protect the free practice of all faiths in this country.

It certainly provides an identity and spiritual dimension for its many adherents. But also, gently and assuredly, the Church of England has created an environment for other faith communities and indeed people of no faith to live freely. Woven into the fabric of this country, the Church has helped to build a better society – more and more in active co-operation for the common good with those of other faiths.

http://www.archbishopofcanterbury.org/articles.php/2358/hm-the-queen-attends-multi-faith-reception. (accessed 17/02/12)

The language is reflective of current episcopal claims expressed in the House of Lords from time to time and must have been, in the usual way, uttered on advice, presumably that of the Church itself. (If government ministers had been consulted, would they have approved?) Even bearing in mind the nature of the particular occasion, the language would be regarded – particularly by some other Christian denominations – as controversial. The synecdoche of England for the UK apart, the notion of the Church as the protector of other faiths is clearly new doctrine in the sense that the role is one the Church has only recently sought to assume.  Moreover, the language suffers from the same difficulty of the coronation oaths: the Church is no more able to protect anyone any more than the sovereign can preserve the Church by virtue of a coronation oath – an oath which did not prevent disestablishment in Ireland or Wales. Perhaps the language used on this occasion will fall to be regarded as the high water mark of the claims of a Church which nowadays accepts religious freedom but does not wish to concede religious equality.

Royal marriages

Readers of the Bill may be surprised to find that this subject occupies more of the Bill than the other provisions put together. This is because clearing this particular lumber room of history has to deal with the accretions of two and a half centuries. The 1772 Royal Marriages Act applied to all the descendants of George II, by now a mighty tribe of mostly obscure people not all of whom may have been aware of the requirement to seek a reigning sovereign’s prior approval for their marriages. Whilst seeking royal approval for those who were aware became for most perhaps a family rite of passage denoting a proud royal connection however increasingly remote, for others failure go through those formalities jeopardised the status of their marriages. The Bill handsomely rectifies unwitting omissions accordingly.

The Bill also abolishes the oppressive penalties of the 1772 regime. Instead of voiding marriages lacking royal consent, it simply disqualifies from succession the limited categories henceforward subject to the consent requirement should they fail to obtain it.

There remains behind this tidying up exercise the question of whether royal consent should be required for anyone’s marriage in the first place. Whilst the 1772 Act machinery would have been an important element in the matter of Princess Margaret’s decision not to marry Group Captain Townsend, the objection that he was a divorced man would not now perhaps feature as an insuperable objection. Presumably other targets of unsuitability are thought to have force but, if so, which? Would the line be drawn at marriage to one’s personal trainer (Sweden) or an unmarried mother (Norway) – official consent forthcoming in both countries? Are there questions of human rights lurking here despite the Deputy Prime Minister’s confident assertion that the Bill’s provisions are compatible with ECHR rights?

Conclusions

The Bill is a piecemeal assemblage but the government is not to be blamed for that. Granted the character of the UK constitution, it is sensible to tinker where one can. At the same time, however, it is the very limited nature of such changes that draws attention to what remains unchanged. There is no shortage of targets in the case of the residues of the confessional state. Obvious topics include whether sovereigns must continue to be compulsorily linked to a particular religious organisation and not free to choose for themselves; whether Anglican coronations should remain the principal way in which the population is drawn to acclaim a new head of state; and whether twenty-six Anglican bishops should continue automatically members of the legislature. These are not matters the government may wish now to address, but they are not going to go away.

 

 

WOMEN BISHOPS: SHOULD PARLIAMENT INTERVENE?

On 21 November 2012 the Church of England Synod rejected a draft Measure for the introduction of women bishops by a narrow majority of six votes in one of the Synod’s three ‘houses’, that of the laity.  Sufficient two thirds majorities were attained in each of the other two houses – bishops and clergy. Forty-two of the forty-four Anglican dioceses had previously supported the change.

The amended draft contained a compromise arrangement, linked with a putative ‘code of practice’, that would have permitted congregations opposed to women bishops on theological grounds to retain male only episcopal oversight. The opponents – from both the ‘catholic’ and evangelical groups – felt that the compromise did not go far enough to recognise their views. Ordinarily, Synod’s standing orders would prevent a failed draft Measure’s reconsideration until the next newly elected Synod – in this case in 2015. There is, however, an exceptional procedure which could bring the issue back for redetermination.

The latest available – 2011 – statistics show that ordained men amount to seventy per cent of the total of nearly 11,000 diocesan licensed clergy. But, although women constitute only one fifth of full-time clergy, they amount to just over half of both part-time stipendiary and self-supporting clergy.  Out of 111 archdeacons, 17 (15%) and of 36 cathedral deans 4 (11%) are women. All 44 diocesan and all 61 suffragan bishops are, of course, men.

The issues 

(a) For the Church

Having in the past been, if anything, in the vanguard on divorce and homosexual law reform in England, the Church continues to find difficulty in agreeing on issues of gender and human sexuality. These difficulties are not confined to disputes in England: they exist in the wider Anglican community too and now appear to be so irreconcilable as to threaten schism. Addressing these differences will be one of the primary tasks of the new Archbishop of Canterbury, Justin Welby, as they were for his predecessor, Rowan Williams.

The decision to ordain women priests in 1992 carried the implication that at some point episcopal orders would also be made available to them. Granted the strong reservations held by a minority in the Church, agreement to proceed could be reached only as the result of compromise – as had been the case in 1992 when, essentially, female ordination was secured on a basis of conferring a clerical status inferior to that of men. At that time, Parliament – through the Ecclesiastical Committee – was concerned that the minority should be reconciled. The question for the Church now could be whether any compromise satisfactory to the opponents of women bishops could be regarded as compatible with having women bishops at all.

(b) For Parliament

Parliament retains the ability to legislate for the Church. Since 1919, on the other hand, it has in practice ceded the legislative initiative to the Church itself. Above all, even if Parliament did decide to legislate directly, it is difficult to believe that it would be prepared to do so without the consent of the Church. If that consent were forthcoming, then there would, of course, be no reason why the Church should not take the initiative itself. Only if Parliament decided to proceed without the Church’s consent would there be a case for its intervening. But if it did so, it would intervene in the interests presumably of the majority party and negative any possibility of holding all the parties together. Contemplating such a sequence is to remind why Parliament conceded the right of legislative initiative to the Church in the first place.

The Public Worship Regulation Act 1874 was the last time Parliament legislated  for the Church when the latter was divided on an issue. The outcome was not a happy one. Five priests underwent terms of custody, and the bishops in the end vetoed all attempted proceedings rendering the Act a dead letter.

Evidence of the House of Commons’ present mood can be found here –

http://www.bbc.co.uk/iplayer/episode/b01p2px8/The_Week_in_Parliament_23_11_2012/

In the BBC studio discussion, Ben Bradshaw, a member of the Ecclesiastical Committee, judged that the mood of Parliament is very different from that of 1992 when it could be argued that it was more concerned to protect the position of the objectors to female ordination than the status of female orders. Whilst that may well be so, it is also the case that Parliament has now in the Equality Act 2010 passed legislation which exempts priestly orders from the non-discrimination rules otherwise applicable. Requiring women bishops would amount to trenching on the religious freedom that the Act’s provisions were meant to protect.

Mr Field’s Equality Act 2010 (Amendment) Bill, which received its first reading on 22 November (and is due to receive its second on 18 January 2013), will presumably attempt to remove a protection permitted under the EU Directives the 2010 Act was designed to implement. If singling out the Church of England for the repeal alone, the Bill will itself be discriminatory: if the repeal is general, then it will be opposed by every other Christian denomination and all other religions as well. It seems unlikely that the bill will, or could ever have been likely to, obtain essential government support. In so far as that is the case, the bill looks more like a gesture of the moment than a credible and viable solution. This was similarly the object and fate of the Bishops (Consecration of Women) Bill, introduced by Andy Reed on 21 March 2006 (Hansard, Commons, cols 170-4) which made no further progress.

(c) For the Ecclesiastical Committee

Any draft Measure from the Synod will have to come through this Committee, and it will be a test of its judgement whether what it feels able to approve is acceptable to Parliament at large. The Committee is not a Parliamentary joint committee but in fact a statutory joint committee with equal Lords and Commons membership in a total of 30. It will no doubt weigh carefully whether it can in the event certify under the 1919 ‘Enabling’ Act ‘as to the [Measure’s] expediency thereof, especially in relation to the constitutional rights of all [Her] Majesty’s  subjects’. What it approves could be voted down in Parliament and that may temper any Committee enthusiasm to wave through a compromise in flagrant and indefensible default of gender equality. What may be an acceptable price of compromise in the Church may not be automatically acceptable outside so far as the rights of all Her Majesty’s subjects are concerned.

(d) For the government

There is unlikely to be any Ministerial enthusiasm for intervening. Parliamentary legislation would in practice have to be via a government sponsored bill. No government would want to start intervening in the affairs of a religious body. If it was seen to do so in this case, it would be invited to intervene in other controversies such as theological and property disputes not only in respect of the Church of England but also in the case of other religious denominations, Christian and non-Christian. Parliament last ventured into this territory very gingerly with the Church of Scotland Act 1921 which paved the way for the reconciliation of a major schism that had occurred in 1843. Ministers were careful in 1921 to ensure that the Act merely recognised a compromise reached by the parties rather than forcing one.

Is ‘disestablishment’ the answer?

In a situation where religious belief has greatly declined and, where it remains, is much pluralised, church establishment is a hangover from the confessional state – abandoned finally for most purposes in 1828-9 – where everyone in the UK outside Scotland had to be a member of the Church of England or suffer civic penalties. Church and state functioned together, inseparably. But the abandonment of the confessional state was not accompanied by severing that Church’s ties with the state. The disestablishments in Ireland in 1871 and in Wales in 1920 did not affect the position of what was left for England alone.

The key political and constitutional problem is that, although the Church of England now behaves largely as if it is a voluntary society, it remains nonetheless part of the state. The Queen as head of state is ‘Supreme Governor’ of the Church, must be in communion with it, holds the title ‘Fidei Defensor’, and – nominally – appoints its senior clergy. The Archbishop crowns and anoints the new sovereign, and the Church conducts important public ceremonies and rituals effectively in relation to the UK as a whole. The Church’s courts remain courts of the land, although they lost their public law jurisdictions in the 1850s. Twenty-six bishops continue to sit in the House of Lords – each nowadays since the Prime Minister withdrew his involvement in 2007 actually appointed by a private, unaccountable committee of the Church itself.

These are high matters and could be addressed again by Parliament. However, whatever the degree of change made, none could procure the appointment of female bishops unless Parliament legislated directly to that end. In other words, disestablishment could not by itself resolve the particular question of female bishops. On the other hand, what disestablishment could do would be – a very different matter – to permit the state and Parliament to wash its hands of Church of England affairs altogether.

Conclusion

Since nothing so far suggests that Parliament contemplates such a rupture, it follows that the Church must be allowed to deal with the present crisis itself. Whether in doing so it strengthens the case for a radical review of remaining  church/state ties is another question.

Written by Bob Morris, formerly Home Office Under Secretary responsible for Constitutional Affairs. Leader of the Unit’s work on Church and State and also expert on FoI.