The role of monarchy in modern democracy

In the 21st century, monarchies remain pivotal parts of several democratic countries across Europe, including the UK. In a new book, edited by Unit founder Robert Hazell and Bob Morris, contributors from across Europe consider the constitutional and political role of monarchy, its powers and functions, how it is defined and regulated, the laws of succession and royal finances, relations with the media, its popularity, and why it endures.

Monarchy has a long history in Europe, being the predominant form of government from the Middle Ages until the First World War. At the turn of the twentieth century every country in Europe was a monarchy with just three exceptions: France, Switzerland and San Marino. But by the start of the twenty-first century, most European countries had ceased to be monarchies, and three quarters of the member states of the European Union are now republics. That has led to a teleological assumption that in time most advanced democracies will become republics, as the highest form of democratic government. 

But there is a stubborn group of countries in Western Europe which defy that assumption, and they include some of the most advanced democracies in the world. In the most recent Democracy Index compiled by the Economist Intelligence Unit, six out of the top ten democracies – and nine of the top 15 – in the world were monarchies. They include six European monarchies: Norway, Sweden, Denmark, the Netherlands, Luxembourg and the UK.

This paradox of an ancient hereditary institution surviving as a central part of modern democracies prompted the comparative study which led to our latest book, The Role of Monarchy in Modern Democracy: European Monarchies Compared. Our study, written by 20 academic experts, includes the six countries listed above, plus Belgium and Spain. 

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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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The Royal baby, the Rules of Succession, and the Realms

15th July 2013

In anticipation of the birth of the Royal baby, Parliament passed the Succession to the Crown Act in April 2013.  It provides that in future the eldest child will be next in line of succession, whether it is a girl or a boy.  The law will not come into force in time for the Royal birth, but the new baby when born will be next in line.  This Blog post explains the background, and the difficulties involved in changing the rules of succession.

Why have the rules of succession been changed?

Over the last 20 years a series of Private Member’s bills have been introduced into both Houses of Parliament to provide for gender equality in the rules of succession to the Crown.  The Labour government did not resist the principle of the change; but it explained that such a change could be initiated only by the government, because of the need to engage with the 15 other countries of which the Queen is head of state (the Realms).  The government supported the change because of the equalities legislation it had itself introduced.  Another motivating factor was that the other European monarchies were all amending their laws to introduce equal primogeniture.  Sweden was the first to change, in 1980, followed by the Netherlands in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009, and Luxembourg in 2011.  Spain has said it will switch to equal primogeniture, but the Spanish constitution has not yet been amended.

Although supportive of the change, the Labour government ultimately failed to act because it was daunted by the size of the task involved in engaging with the Realms; by further complications, such as whether to address the discrimination against Catholics which is also built into the rules of succession; and because there was no immediate reason to do so.

Why now?

The marriage of Prince William and Kate Middleton in April 2011 provided a spur to action.  What had been a hypothetical problem became a real possibility.  Having written to them beforehand, in October 2011 David Cameron used the Commonwealth Heads of Government meeting in Perth, Australia, to engage with those Commonwealth countries that are also Realms and seek their agreement to change their own laws.  The UK government has said that it will not bring the new law into force until all the Realms have made the change.  When the change is made, it will be backdated to 28 October 2011, the date of the agreement announced in Perth.

Why has changing the law taken so long?  The Realms

Changing the rules of succession for the UK is complicated because the British monarch is head of state of 15 other countries, known as the Realms.  These include large countries such as Australia, Canada, Jamaica, New Zealand; and small countries such as St Vincent, Tuvalu and the Solomon Islands.  (The full list is Australia, New Zealand, Canada, Jamaica, Antigua and Barbuda, Belize, Papua New Guinea, St Christopher and Nevis, St Vincent and the Grenadines, Tuvalu, Barbados, Grenada, Solomon Islands, St Lucia and The Bahamas).

The UK government and Buckingham Palace want any change in the rules of succession to be introduced throughout the Realms (if there were different rules, that could lead in time to different members of the Royal family succeeding in different countries).  Under the Perth agreement all the Realms agreed to make the necessary changes to their own laws.  The nature of the change required varies roughly in proportion to the size of the country: the smallest countries may simply pass a Cabinet resolution, others will legislate in parliament, while the largest countries may need to amend their constitutions.

Australia and Canada face particular difficulties because they are federations, where the consent of the states (in Australia) or the provinces (in Canada) is required for any constitutional amendment.  In Australia a compromise has been agreed that the State Parliaments will request the federal Parliament to change the law.  In Canada a minimalist law passed by the federal Parliament has since been challenged on the ground that changing the office of the Crown properly requires amendment of the Canadian constitution.

Will the Royal baby be next in line?

As the eldest child, the Royal baby will be next in line of succession after Prince William, whether it is a girl or a boy.  It does not matter that the new law has not been brought into force providing for equal primogeniture: so long as there is only one child, it is next in line.  The new law would only be needed if the eldest child is a girl, and a second child is subsequently born which is a boy.  The UK government hopes and expects that all the Realms will have come into line in the next 6-12 months, so the new law should have come into force by the time of the birth of any second child.

What other changes were made to the rules of succession?

Two other changes were made.  The Royal Marriages Act 1772 was repealed, and in future only the first six persons in line to the throne will require the Sovereign’s approval to marry.  Second, marrying a Roman Catholic will no longer disqualify a person from being in the line of succession.  But the prohibitions on the Monarch being a Roman Catholic remain: the Sovereign continues to be Supreme Governor of the Church of England, and must be in communion with the Church of England.

What does this change tell us about the British constitution?

Being unwritten, the British constitution is very easy to amend. Big changes, such as devolution to Scotland and Wales, reforming the House of Lords, or the Human Rights Act can be introduced by simple Act of Parliament.  What this episode shows is that changes to the succession to the Crown are much more difficult, because the change needs to involve not just the UK but the 15 other Realms.

It will have taken two to three years to effect this small change.  The difficulties in the Realms are multiple and varied.  Some saw this as a project of the UK government, and little to do with them.  Some struggled to realise what was required.  Some did not wish to provoke a wider debate about the monarchy.  At the other end of the scale, the two largest countries, Australia and Canada, have constitutions which are notoriously difficult to change.  So if any future change requires a constitutional amendment in either of those countries, the difficulties are further compounded.

It is too early to tell whether this small change has further consequences for the Realms themselves.  They are a widely scattered group of countries, most of whom have little in common.  It is possible that this exercise will have brought them a little closer together; it is also possible that it prompts some to question the link with the monarchy of a country so far away.

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 – 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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