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Act of Settlement

Volume 512: debated on Thursday 1 July 2010

Motion made, and Question proposed, That this House do now adjourn.—(Mr Vara.)

We move from a matter of modern, enormous significance to one of historic significance. None the less, it matters to today’s society, particularly, I would suggest, to many Roman Catholics in this country, as well as to people of other faiths. I am talking about the Act of Settlement, which makes a series of provisions. I will not deal with them all, because some have been dealt with in previous legislation. I shall instead focus on those that state, first, that the throne was to pass to the Electress Sophia of Hanover and her Protestant successors; secondly, that the monarch

“shall join in communion with the Church of England”;

thirdly, that anyone who is married to a Catholic should be barred from the line of succession; and fourthly, that the monarch should make a series of oaths and declarations when they accede to the throne or are crowned.

The provisions of the Act of Settlement built on the Bill of Rights of 1688, particularly where it reads that

“whereas it hath beene found by experience that it is inconsistent with the safety and welfaire of this protestant kingdome to be governed by a popish prince or by any King or Queene marrying a papist the said lords spirituall and temporall and commons doe further pray that it may be enacted that all and every person and persons that is are or shall be reconciled to or shall hold communion with the see or church of Rome or shall professe the popish religion or shall marry a papist shall be excluded and be for ever uncapeable to inherit possesse or enjoy the crowne and government of this realme”.

In addition, the Coronation Oath Act 1688 provided that the new monarch would have to take an oath upon their coronation that they would

“maintaine the Laws of God the true profession of the Gospell and the Protestant reformed religion established by law…and…preserve unto the bishops and clergy of this realm and to the churches committed to their charge all such rights and privileges as by law do or shall appertain unto them or any of them.”

One further provision springs from common law and means that the succession in the United Kingdom falls to a male, rather than a female, which is known as male preference primogeniture—another element that many people now would think to be rather outdated.

Subsequent Acts have amended elements of the Act of Settlement. The Scottish and English Acts of Union in 1707 ensured that there would be no alteration to the Presbyterian Church of Scotland, that the new monarch, when monarch of both kingdoms, would ratify the confession of faith, and that a new oath would be undertaken by the monarch in relation to the Church of Scotland stating that the monarch

“shall inviolably maintain and preserve the foresaid settlement of the True Protestant Religion”—

I note that “True Protestant Religion” always comes with a capital T, capital P and capital R—

“with the Government Worship Discipline Right and Privileges of this Church as above established by the Laws of this Kingdom.”

Subsequent reforms also included the Royal Marriages Act 1772, which provided that the monarch could determine who any member of the royal family or anybody in the line of succession could marry. Today, still, the Lord Chancellor has to issue certificates for anyone in the line of succession stating whether they have married a Catholic or someone who has now renounced their Catholic faith. Not the most recent—there was an instance last June when the Lord Chancellor had to do this—but the better known recent case is probably that from 9 April 2008, when the marriage of Peter Phillips and Autumn Kelly had to be signed off by the Lord Chancellor.

In 1801, when the Parliaments of Ireland, England and Scotland were joined together, there was further reform of the Act of Settlement, which meant that the Irish agreed to the provisions in the Act. Later, the Accession Declaration Act 1910 specified that on accession, the monarch would have to declare:

“I am a faithful Protestant”—

capital P again—

“and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law.”

The Statute of Westminster 1931 further determined that if there were to be any changes to those or many other provisions, they ought to be consulted on around the Commonwealth so that, on a particular day, one could not have a different monarch for Australia from the monarch for Canada and the United Kingdom. However, it is worth pointing out that, because we had to perform another piece of legal jiggery-pokery over the abdication of Edward VIII, there was one day when Ireland had a different monarch from the United Kingdom.

There was one further, tiny, Church of England measure that affected the position, which was the Admission to Holy Communion Measure 1972. That meant that any person in good standing with their Church—in other words, not necessarily a member of the Church of England—was able to receive communion in the Church of England. In theory, that could mean that a monarch who was not an Anglican—or, for that matter, a Presbyterian member of the Church of Scotland—but was, for instance, a Methodist, would be able to enter into communion with the Church of England without being a member.

All those different provisions have meant that, in sum and in total, there is a complete bar on any Catholic—and probably also any member of various other religions—sitting in the line of succession or becoming the monarch of the United Kingdom of Great Britain and Northern Ireland, and, by extension therefore, of her further territories and the Commonwealth. I believe that this is now wholly inappropriate. The legislation that was written in 1688 and 1701 was, in one sense, deliberately offensive to those whom it termed “papists” or “followers of the popish religion”, because it was believed to be against the secure interests of the people of this land. Notwithstanding the fact that anti-Catholicism is, unfortunately, still a vibrant part of many sections of the British media and British society, I do not believe that there are many in this country who believe, in all honesty, that the Roman Catholic faith undermines our national security.

I pay tribute to my hon. Friend for raising something that is not only offensive to Roman Catholics and people of many other faiths, but offensive to anyone who wants equality under the law in our constitution in all respects. He will know that one of the arguments made against taking any such measure forward with urgency is that it would require agreement among all the countries of which the monarch is the Head of State. If by some chance we were to amend the legislation here in the UK, but Tuvalu, Belize, or St Vincent and the Grenadines, for example, inspired by some form of anti-Catholicism, did not change their constitutions, so that we ended up with a different monarch in the UK from those countries, would that really be a particularly worrying matter?

I do not think that it would be, but I happen to know that some of those discussions have already happened with many parts of the Commonwealth, and I do not see any reason why we would not be able to proceed fairly swiftly. It is worth pointing out that, for the abdication of Edward VIII, we had to ensure that the rest of the countries to which my hon. Friend referred also subscribed to the change of monarch, so that not only Edward VIII, but any of his children or successors would also be barred from the succession. I therefore do not think that the issue that my hon. Friend has raised is too much of a problem, although I will come to some of the problems that I think the Minister might raise a little later.

The other point is that it is not just Catholics, but Muslims, Jews, Unitarians and Quakers who are all barred from being the monarch, either by virtue of the fact that the law expressly says that they have to be in communion with the Church of England or by virtue of the fact that they have to make a series of oaths that they would not be able to make. In addition, we have this ludicrous process of certification by the Lord Chancellor of those in line to the throne. The state in this country should not be deciding who can marry; the Crown should not be deciding which distant relative is able to marry or whom they can marry. That should surely be something of the past; indeed, it was much criticised in 1772 as well.

We also have a series of oaths, including a Protestant declaration, an oath in defence of the Church of England and an oath in defence of the Church of Scotland, which are made at different times—either in a Privy Council meeting, at the coronation service or at the first meeting of Parliament—but this is all hideously anachronistic now. We have protection for the Churches of Scotland and England but, to be honest, I think that the Churches of Scotland and England can defend themselves. There was a time, in the 13th century and the early 14th century, when the lower clergy, as well as the prelates, of the Church of England were invited into Parliament, but that has long gone. I hope that in the near future we will see the end of the prelates in Parliament, but it is surely time to give the Church of England and the Church of Scotland their own protection without any special pleading.

It is also wholly wrong to have a male preference in the line of succession. Now is the time to change this, before the young princes have children—just in case they were to have a daughter before they had a son, whereupon there would suddenly be a constitutional crisis. In other countries that have changed the law, they have sometimes had to do so when they are already effectively changing the next in line to the throne. I think that it would be better to do it now.

What would I like to see, then? First of all, we should remove all objectionable references to Catholicism from our constitutional settlement. That means significant repeal of large elements of the Act of Settlement 1701. Before anybody says, “But the Act of Settlement is quintessential to our national identity; this will be undoing and rubbing out parts of our history,” it is worth noting that we have already rubbed out large parts of that history. One element of the Act of Settlement states that the monarch should never be allowed to travel abroad without permission of the House of Commons. That was repealed many years—indeed, several centuries—ago, and rightly so. We need to make sure that our constitution is silent—absolutely silent—on this matter, so that there is equality for all.

Secondly, I believe that we should have a new single accession and coronation oath. This oath should be determined by this House—not by the heir to the throne; not by the monarch when he or she decides to come to the throne; and not by the Archbishop of Canterbury in consultation with anybody. It should be determined by this House, as has been our history and our tradition. I think the oath should be made between the monarch and Parliament, all sitting together, having been previously determined by us.

Thirdly, we need to remove all references to marriage. We need to repeal the Royal Marriages Act 1772. We need to make sure that any member of the royal family or anyone in distant line to the throne—it is remarkable, looking down the list, who is still caught by this provision—is free to marry precisely as they want to. We should establish in our constitutional settlement absolute, straightforward equality between men and women.

I was contacted by Hansard and asked whether I could provide a copy of my speech. I pointed out that it was unusual for Members to read out their speeches—indeed, it is proscribed—but Hansard said, “Well, it is absolutely certain that the Minister will read out his speech, so he is likely to send it to us beforehand.” I hope he has not, as I want him to respond to the things I have said. I suspect, however, that one thing he might say is, “Yes, but this is awfully complicated, as there are so many bits of legislation.” I hope he will not do this, but he might go through all the legislation with which I have already bored the House. I hope he is not suddenly going to say, “Aha, the hon. Member has left out Princess Sophia’s Precedence Act 1711.” I can see from the Minister looking through his notes that he was toying with mentioning that Act.

To be honest, when I have heard Labour Ministers advancing from the Government Benches the argument that it is all too difficult, I have said, “Poppycock. Absolute tosh. Posh tosh maybe, but absolute tosh.” I know that the Minister is a stout, worthy, independently minded person, who is determined to see reform in many things. He is bringing forward, I hope, many pieces of legislation that we will be able to support. I hope he is not going to advocate delaying “because it is so awfully difficult in the Commonwealth” or say that we do not want to open up this Pandora’s box. If he is thinking of invoking Pandora’s box—it has been written into many Ministers’ speeches in the past—let me point out that at the bottom of that box is one important thing: hope.

I very much hope that the Minister is going to open Pandora’s box so that we can move forward. There are many people—not just Catholic prelates, not just Catholic priests, not just Catholics—who find it deeply offensive that we retain a piece of legislation that we could change, which would bring in full equality. I hope that this Minister will be like Alexander and cut through the Gordian knot. It will be a simple piece of legislation. Many others have brought forward legislation before and Labour Ministers have found ludicrous reasons for saying no to them in the past. I hope that this Minister is not going to be like that, and I hope that we shall be able to say of him, as the Archbishop of Canterbury said of Henry V in Shakespeare’s play “Henry V”,

“Turn him to any cause of policy,

The Gordian knot of it he will unloose,

Familiar as his garter”.

The hon. Member for Rhondda (Chris Bryant) tests us with flattery, hoping that it will get him somewhere, but I fear that he may be disappointed.

I congratulate the hon. Gentleman on his choice of subject. The House will know that it is a subject in which he has been interested for some time. Indeed, in 2008 he presented the last Prime Minister, the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown), with his plans for reforming the constitution. I presume that they were broadly in line with what he has just proposed. He nods in assent. I understand from a report in The Guardian at the time that his plans were given to the last Prime Minister’s new adviser on the constitution, but not much seems to have happened to them in the following two years.

They may have got into the Labour manifesto. Many things may have got into the Labour manifesto. I fear, however, that the hon. Gentleman might have been disappointed even if Labour had been successful in the election.

As the hon. Gentleman said, many Members of both Houses have sought debate on this issue, and it is important for us to discuss it. However—I know that this will disappoint the hon. Gentleman—it is complicated. He himself listed a significant number of pieces of legislation that would have to be considered, amended or possibly repealed: the Bill of Rights 1689, the Coronation Oath Act 1688, the Act of Settlement 1701, the Royal Marriages Act 1772, the Union with Ireland Act 1800, and the Regency Act 1706. This is not a straightforward matter, and I do not think that pretending it is straightforward or simple does any of us a service.

The hon. Gentleman is right to say that the Government —indeed, my right hon. Friend the Deputy Prime Minister and I—will be introducing a number of pieces of legislation that are mentioned in the coalition Government’s programme for government. We will introduce legislation on a referendum on the alternative vote, on reviewing the boundaries, on fixed-term Parliaments, and indeed on reform of the House of Lords, which may deal with the issue that the hon. Gentleman raised about the position of bishops in the other place. He can be confident that we have the appetite for reform, but I think that this particular matter involves a number of complicated issues.

As I said, posh tosh. The Minister is going to cite arguments that the civil servants around the corner will have prepared for him about how awfully difficult this is and how many pieces of legislation are involved, but if he is going to reform the House of Lords he is going to have to start with Magna Carta, and that is going considerably further back than the Act of Settlement.

I said that merely to illustrate that this is a Government who are happy to carry out reform when it is necessary.

Clearly we would not legislate today to give men precedence over women in the line of succession, and I do not think that we would concern ourselves today with the religion of the monarch’s spouse or treat differently members of a particular religion. However, it is one thing to say that we would not legislate in that way today, and quite another to say that there are no obstacles to change. We need to think through the changes and their consequences before making them.

As the hon. Gentleman knows, the Act of Settlement is part of a political and constitutional settlement with strong historical roots. It does not, of course, prevent those in the line of succession from marrying Roman Catholics; it merely means that if they do so, they will lose their spot in the line of succession. It raises complex issues about the relationship between Church and state. There are many who, like the hon. Gentleman, do not think that the Church of England should be the established Church—

That was the implication of what the hon. Gentleman said when he talked of allowing the Church of England to rush off by itself. In any event, the Act raises issues connected with the establishment of the Church, and it does us no service to pretend that it is not so.

The issue of primogeniture, particularly male preference primogeniture, has been raised from time to time, as has the hon. Gentleman’s point about giving female descendants of the sovereign the same rights as their male siblings. The title to the Crown, however, derives not just from statute but from common rules of descent. Succession to the throne in this country is based on a form of primogeniture which favours sons over daughters, but favours daughters of a sovereign over the siblings of that sovereign, so an older sister would lose her place to a younger brother but not to an uncle. Again, changing that arrangement would be a major constitutional measure. The hon. Gentleman pointed out one thing that is important to note, which is that currently the first three members of the royal family in line to the throne are all male and so we have some time until there may be a pressing issue to address.

The hon. Gentleman highlighted an issue that is complicated and I do not think it is right to sweep it away, pretending it is not. I am talking about the fact that this is not just an issue for the United Kingdom, because Her Majesty the Queen is sovereign of a further 15 independent nations and they have a right, with us, to decide on the line of succession. I do not suggest that they would necessarily have any problems with removing outdated provisions, but it is not the substance of the issue that is the problem; the problem is how we go about doing that. Because of the nature of our Parliament, this House and the other place can change the most fundamental of our constitutional provisions by a simple Act of Parliament, so the Act of Settlement could indeed be amended in this House, as could any of the other Acts that he mentions. That is true of some of the other countries of which Her Majesty is Queen, but it is not true of all of them. For some that have a federal constitution, such as Australia and Canada, amending those rules is a more complicated process, involving the states in those countries; it is not as straightforward as it is here.

The relationship between the Crown of the United Kingdom and the Crown of the other realms is complicated. The hon. Gentleman mentioned the one occasion when it has been tested, which was the abdication of Edward VIII. In those days, there were only six realms involved—Australia, Canada, New Zealand, South Africa, Newfoundland and Eire. Only three still survive as realms, although there are now a further 12, which were mentioned by the hon. Member for Edinburgh North and Leith (Mark Lazarowicz), who is no longer in his place. Even then, when the concept of the “imperial crown” and the “imperial Parliament” was much stronger, there were, as the hon. Member for Rhondda highlighted, a number of different views about the extent to which the United Kingdom could legislate on their behalf and the extent to which if we changed the line of succession to our throne, that would automatically feed into their arrangements. So if we were to go ahead and legislate in the UK alone, we would either be presenting the other realms with no choice in their own Head of State or we would cause a divergence in the line of succession.

The hon. Gentleman alluded to the fact that discussions have started with those Commonwealth countries and are continuing, but they should involve careful consideration of how we would implement change, the consequences and the timing. I do not think that those matters should be unduly rushed. Dealing with our non-codified constitution is complicated without having unexpected consequences. The Act of Settlement is part of the backbone of our constitution, and tinkering with it lightly without thinking through all the changes would have unforeseen consequences.

I sort of sympathise with the Minister because he has officials who want to make life difficult for him about this. But the truth about timing is that if Prince William were to have a daughter first and then a son, in realms other than this, where people wanted to assert that they thought it was unfair to have an unequal system that disfranchised or shoved the daughter further down the list, there would be a constitutional crisis. That is why it is timely to do this now, while there is not a problem.

I thank the hon. Gentleman for that point, but that is why I thought it was important to highlight the fact that discussions are under way with other Commonwealth countries. It is not that the Government are in favour of no change; we are simply considering change carefully and thoughtfully.

The hon. Gentleman mentions timing, so it is worth picking up on the issue relating to the exclusion of Roman Catholics from the throne. We should examine the view of the Church on this, although I appreciate that there are divergent opinions. The previous Cardinal Archbishop of Westminster, Cormac Murphy-O’Connor, said that he thought that the Act of Settlement was

“discriminatory. I think it will disappear, but I don’t want to cause a great fuss”.

The current Archbishop of Westminster has said:

“I wouldn’t rush to support such a change in the law. I think that the position of the Queen and the monarchy is to be handled with great sensitivity”.

However, Catholic cardinals in Scotland have asserted very forcefully that they believe the law is entirely discriminatory and should be changed, and many prelates in the Church of England have also said it should be changed. I think I am right in saying that the General Synod of the Church of England also believes that it should be changed.

The hon. Gentleman is right to highlight that point. Cardinal O’Brien in Scotland, for example, is much firmer about wanting to move quickly on this. However, this merely highlights the complexity of the debate. There is not even a single clear view within the Catholic Church in these islands. Some very significant Catholics think that the law should be changed, but should not be rushed or done in a way that causes the monarchy difficulty.

But there is not a single Catholic in the land who does not think that the law should be changed.

I cannot possibly know the views of every single person in the United Kingdom, and neither can the hon. Gentleman.

As I have said, the Government are not saying that there should be no change. We are simply saying that, if we are to undertake change, we need to do it in a careful and thoughtful way. We are not saying that the parts of the Act of Settlement that we are discussing should never be changed. We do not rule out change. We simply argue that, if there is to be a change, it should be thoughtful, and undertaken carefully and with due consideration for our obligations to the other Commonwealth realms of which Her Majesty is Queen. We should also have consideration for the consequences not only for the Crown and the succession but for the position of the established Church in this country.

To give the hon. Gentleman hope, let me assure him that we have not ruled out change, but it would need to be done carefully and thoughtfully. If done in that way, it is much more likely to endure and not have unforeseen consequences. I shall leave him with that positive message, although I am sure that he will go away disappointed. I will also leave him with the thought that, although I will give the Hansard reporters a copy of my speech, I have waited until after the debate to do so, rather than giving it to them in advance, as he suggested. He was probably expecting the comments that I have uttered tonight. I fear that he will have to be disappointed in the pace of reform in this area, but when we bring to the House the measures on other areas of constitutional reform that were in our manifesto, I shall look forward to his wholehearted support for them.

Question put and agreed to.

House adjourned.