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]


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] (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]‘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 – (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] 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.

Continue reading



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 –

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. (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?


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.