Act of Settlement 1701

Sophia, Electress of Hanover

The Act of Settlement was, in many ways, the major cause of the union of Scotland with England and Wales to form the Kingdom of Great Britain. The Parliament of Scotland was not happy with the Act of Settlement and, in response, passed the Act of Security in 1704, through which Scotland reserved the right to choose its own successor to Queen Anne. Stemming from this, the Parliament of England decided that, to ensure the stability and future prosperity of Great Britain, full union of the two parliaments and nations was essential before Anne's death.

It used a combination of exclusionary legislation (the Alien Act 1705), politics, and bribery to achieve this within three years under the Act of Union 1707. This success was in marked contrast to the four attempts at political union between 1606 and 1689, which all failed owing to a lack of political will in both kingdoms. By virtue of Article II of the Treaty of Union, which defined the succession to the throne of Great Britain, the Act of Settlement became part of Scots law as well.

In addition to excluding James II (who died a few months after the act received royal assent) and his Roman Catholic children (Prince James (The Old Pretender) and the Princess Royal), the Act also excluded the descendants of Princess Henrietta, the youngest sister of James II. Henrietta's daughter was Anne, Queen of Sardinia, a Roman Catholic, from whom descend all Jacobite pretenders after 1807.

With the legitimate descendants of Charles I either childless (in the case of his two grand-daughters the late Queen Mary II and her successor Queen Anne) or Roman Catholic, Parliament's choice was limited to Sophia of Hanover, the Protestant daughter of the late Elizabeth of Bohemia, the only other child of King James I to have survived childhood. Elizabeth had borne nine children who reached adulthood, of whom Sophia was the youngest daughter. However in 1701 Sophia was the senior Protestant one, therefore with a legitimate claim to the English throne; Parliament passed over her Roman Catholic siblings, namely her sister Louise Hollandine of the Palatinate, and their descendants, who included Elizabeth Charlotte, Duchess of Orléans; Louis Otto, Prince of Salm, and his aunts; Anne Henriette, Princess of Condé, and Benedicta Henrietta, Duchess of Brunswick-Lüneburg.

Since the Act's passing the most senior living member of the royal family to have married a Roman Catholic, and thereby to have been removed from the line of succession, is Prince Michael of Kent, who married Baroness Marie-Christine von Reibnitz in 1978; he was fifteenth in the line of succession at the time. He was restored to the line of succession in 2015 when the Succession to the Crown Act 2013 came into force, and became 34th in line.[19]

The next most senior living descendant of the Electress Sophia who had been ineligible to succeed on this ground is George Windsor, Earl of St Andrews, the elder son of Prince Edward, Duke of Kent, who married the Roman Catholic Sylvana Palma Tomaselli in 1988. His son, Lord Downpatrick, converted to Roman Catholicism in 2003 and is the most senior descendant of Sophia to be barred as a result of his religion. In 2008 his daughter, Lady Marina Windsor, also converted to Catholicism and was removed from the line of succession. More recently, Peter Phillips, the son of Anne, Princess Royal, and eleventh in line to the throne, married Autumn Kelly; Kelly had been brought up as a Roman Catholic, but she converted to Anglicanism prior to the wedding. Had she not done so, Phillips would have forfeited his place in the succession upon their marriage, only to have it restored in 2015.

Excluding those princesses who have married into Roman Catholic royal families, such as Marie of Edinburgh, Victoria Eugenie of Battenberg and Princess Beatrice of Edinburgh, one member of the Royal Family (that is, with the style of Royal Highness) has converted to Roman Catholicism since the passage of the Act: the Duchess of Kent, wife of Prince Edward, Duke of Kent, who converted on 14 January 1994, but her husband did not lose his place in the succession because she was an Anglican at the time of their marriage.[20]

In October 2011 the Australian federal government was reported to have reached an agreement with all of the states on potential changes to their laws in the wake of amendments to the Act of Settlement.[23] The practice of the Australian states—for example, New South Wales and Victoria[24][25]—has been, when legislating to repeal some imperial statutes so far as they still applied in Australia, to provide that imperial statutes concerning the royal succession remain in force.

The legal process required at the federal level remains, theoretically, unclear. The Australian constitution, as was noted during the crisis of 1936, contains no power for the federal parliament to legislate with respect to the monarchy.[26] Everything thus turns upon the status and meaning of clause 2 in the Commonwealth of Australia Constitution Act 1900, which provides: "The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom."[27]

Anne Twomey reviews three possible interpretations of the clause.[26]

• First: it "mandates that whoever is the sovereign of the United Kingdom is also, by virtue of this external fact, sovereign of Australia"; accordingly, changes to British succession laws would have no effect on Australian law, but if the British amendment changed the sovereign, then the new sovereign of the United Kingdom would automatically become the new sovereign of Australia.
• Second, it is "merely an interpretative provision", operating to ensure that references to "the Queen" in the Constitution are references to whoever may at the time be the incumbent of the "sovereignty of the United Kingdom" as determined with regard to Australia, following the Australia Act 1986, by Australian law.
• Or, third, it incorporates the United Kingdom rules of succession into the Commonwealth of Australia Constitution Act, which itself can now be altered only by Australia, according to the Australia Act 1986; in that way, the British rules of succession have been patriated to Australia and, with regard to Australia, are subject to amendment or repeal solely by Australian law.

However, Twomey expresses confidence that, if the High Court of Australia were to be faced with the problems of covering clause 2, it would find some way to conclude that, with regard to Australia, the clause is subject solely to Australian law.[28] Canadian scholar Richard Toporoski theorised in 1998 that "if, let us say, an alteration were to be made in the United Kingdom to the Act of Settlement 1701, providing for the succession of the Crown... [i]t is my opinion that the domestic constitutional law of Australia or Papua New Guinea, for example, would provide for the succession in those countries of the same person who became Sovereign of the United Kingdom."[7]

In practice, when legislating for the Perth Agreement (see below), the Australian governments took the approach of the states requesting, and referring power to, the federal government to enact the legislation on behalf of the states (under paragraph 51(xxxviii) of the Australian Constitution) and the Commonwealth of Australia.

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In Canada, where the Act of Settlement (French: Acte d'établissement) is now a part of Canadian constitutional law, Tony O'Donohue, a Canadian civic politician, took issue with the provisions that exclude Roman Catholics from the throne, and which make the monarch of Canada the Supreme Governor of the Church of England, requiring him or her to be an Anglican. This, he claimed, discriminated against non-Anglicans, including Catholics, who are the largest faith group in Canada.[29] In 2002, O'Donohue launched a court action that argued the Act of Settlement violated the Canadian Charter of Rights and Freedoms, but, the case was dismissed by the court.[30] It found that, as the Act of Settlement is part of the Canadian constitution, the Charter of Rights and Freedoms, as another part of the same constitution, does not have supremacy over it. Also, the court noted that, while Canada has the power to amend the line of succession to the Canadian throne, the Statute of Westminster stipulates that the agreement of the governments of the fifteen other Commonwealth realms that share the Crown would first have to be sought if Canada wished to continue its relationship with these countries. An appeal of the decision was dismissed on 16 March 2005.[31] Some commentators state that, as a result of this, any single provincial legislature could hinder any attempts to change this Act, and by extension, to the line of succession for the shared crown of all 16 Commonwealth realms.[32][33][34][35][36] Others contend that that is not the case, and changes to the succession instituted by an Act of the Parliament of Canada "[in accord] with the convention of symmetry that preserves the personal unity of the British and Dominion Crowns".[37]

With the announcement in 2007 of the engagement of Peter Phillips to Autumn Kelly, a Roman Catholic and a Canadian, discussion about the Act of Settlement was revived. Norman Spector called in The Globe and Mail for Prime Minister Stephen Harper to address the issue of the act's bar on Catholics, saying Phillips' marriage to Kelly would be the first time the provisions of the act would bear directly on Canada—Phillips would be barred from acceding to the Canadian throne because he married a Roman Catholic Canadian.[29] (In fact, Lord St Andrews had already lost his place in the line of succession when he married the Roman Catholic Canadian Sylvana Palma Tomaselli in 1988. But St Andrews' place in the line of succession was significantly lower than Phillips'.) Criticism of the Act of Settlement due to the Phillips–Kelly marriage was muted when Autumn Kelly converted to Anglicanism shortly before her marriage, thus preserving her husband's place in the line of succession.

From time to time there has been debate over repealing the clause that prevents Roman Catholics, or those who marry one, from ascending to the British throne. Proponents of repeal argue that the clause is a bigoted anachronism; Cardinal Winning, who was leader of the Roman Catholic Church in Scotland, called the act an "insult" to Catholics. Cardinal Murphy-O'Connor, the leader of the Roman Catholic Church in England, pointed out that Prince William (later the Duke of Cambridge) "can marry by law a Hindu, a Buddhist, anyone, but not a Roman Catholic."[38] Opponents of repeal, such as Enoch Powell and Adrian Hilton, believe that it would lead to the disestablishment of the Church of England as the state religion if a Roman Catholic were to come to the throne. They also note that the monarch must swear to defend the faith and be a member of the Anglican Communion, but that a Roman Catholic monarch would, like all Roman Catholics, owe allegiance to the Pope. This would, according to opponents of repeal, amount to a loss of sovereignty for the Anglican Church.

When in December 1978 there was media speculation that Prince Charles might marry a Roman Catholic, Powell defended the provision that excludes Roman Catholics from ascending the throne, stating his objection was not rooted in religious bigotry but in political considerations. He said a Roman Catholic monarch would mean the acceptance of a source of authority external to the realm and "in the literal sense, foreign to the Crown-in-Parliament ... Between Roman Catholicism and royal supremacy there is, as Saint Thomas More concluded, no reconciliation." Powell concluded that a Roman Catholic crown would be the destruction of the Church of England because "it would contradict the essential character of that church."

He continued:

When Thomas Hobbes wrote that "the Papacy is no other than the ghost of the deceased Roman Empire sitting crowned upon the grave thereof", he was promulgating an enormously important truth. Authority in the Roman Church is the exertion of that imperium from which England in the 16th century finally and decisively declared its national independence as the alter imperium, the "other empire", of which Henry VIII declared "This realm of England is an empire" ... It would signal the beginning of the end of the British monarchy. It would portend the eventual surrender of everything that has made us, and keeps us still, a nation.[39]

The Scottish Parliament unanimously passed a motion in 1999 calling for the complete removal of any discrimination linked to the monarchy and the repeal of the Act of Settlement.[40] The following year, The Guardian challenged the succession law in court,[41] claiming that it violated the European Convention on Human Rights, which provides,

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.

As the Convention nowhere lists the right to succeed to the Crown as a human right, the challenge was rejected.

Adrian Hilton, writing in The Spectator in 2003, defended the Act of Settlement as not "irrational prejudice or blind bigotry", but claimed that it was passed because "the nation had learnt that when a Roman Catholic monarch is upon the throne, religious and civil liberty is lost." He points to the Pope's claiming universal jurisdiction, and Hilton argues that "it would be intolerable to have, as the sovereign of a Protestant and free country, one who owes any allegiance to the head of any other state" and contends that, if such situation came about, "we will have undone centuries of common law." He said that because the Roman Catholic Church does not recognise the Church of England as an apostolic church, a Roman Catholic monarch who abided by their faith's doctrine would be obliged to view Anglican and Church of Scotland archbishops, bishops, and clergy as part of the laity and therefore "lacking the ordained authority to preach and celebrate the sacraments." (Hilton noted that the Church of Scotland's Presbyterian polity does not include bishops or archbishops.) Hilton said a Roman Catholic monarch would be unable to be crowned by the Archbishop of Canterbury and notes that other European states have similar religious provisions for their monarchs: Denmark, Norway, and Sweden, whose constitutions compel their monarchs to be Lutherans; the Netherlands, which has a constitution requiring its monarchs be members of the Protestant House of Orange; and Belgium, which has a constitution that provides for the succession to be through Roman Catholic houses.[42]

In December 2004, a private member's bill—the Succession to the Crown Bill—was introduced in the House of Lords. The government, headed by Tony Blair, blocked all attempts to revise the succession laws, claiming it would raise too many constitutional issues and it was unnecessary at the time. In the British general election the following year, Michael Howard promised to work towards having the prohibition removed if the Conservative Party gained a majority of seats in the House of Commons, but the election was won by Blair's Labour Party. Four years later, plans drawn up by Chris Bryant were revealed that would end the exclusion of Catholics from the throne and end the doctrine of agnatic (male-preference) primogeniture in favour of absolute primogeniture, which governs succession solely on birth order and not on sex.[43] The issue was raised again in January 2009, when a private member's bill to amend the Act of Succession was introduced in parliament.

In early 2011 Keith Vaz, a Labour Member of Parliament, introduced to the House of Commons at Westminster a private member's bill which proposed that the Act of Settlement be amended to remove the provisions relating to Roman Catholicism and change the primogeniture governing the line of succession to the British throne from agnatic to absolute cognatic. Vaz sought support for his project from the Canadian Cabinet and Prime Minister Stephen Harper, but the Office of the Prime Minister of Canada responded that the issue was "not a priority for the government or for Canadians without further elaboration on the merits or drawbacks of the proposed reforms". Stephenson King, Prime Minister of Saint Lucia, said he supported the idea and it was reported that the government of New Zealand did, as well.[44] The Monarchist League of Canada said at the time to the media that it "supports amending the Act of Settlement in order to modernize the succession rules."[45]

Later the same year, the Deputy Prime Minister of the United Kingdom, Nick Clegg, announced that the government was considering a change in the law.[46][47] At approximately the same time, it was reported that British Prime Minister David Cameron had written to each of the prime ministers of the other fifteen Commonwealth realms, asking for their support in changing the succession to absolute primogeniture and notifying them he would raise his proposals at that year's Commonwealth Heads of Government Meeting (CHOGM) in Perth, Australia.[48] Cameron reportedly also proposed removing the restriction on successors being or marrying Roman Catholics; however, potential Roman Catholic successors would be required to convert to Anglicanism prior to acceding to the throne. In reaction to the letter and media coverage, Harper stated that, this time, he was "supportive" of what he saw as "reasonable modernizations".[49]

At the 2011 Commonwealth Heads of Government Meeting on 28 October 2011, the prime ministers of the other Commonwealth realms agreed to support Cameron's proposed changes to the Act.[50][51][52] The bill put before the Parliament of the United Kingdom would act as a model for the legislation required to be passed in at least some of the other realms, and any changes would only first take effect if the Duke of Cambridge were to have a daughter before a son.[23][53][54]

The British group Republic asserted that succession reform would not make the monarchy any less discriminatory.[50] As it welcomed the gender equality reforms, the British newspaper The Guardian criticized the lack of a proposal to remove the ban on Catholics sitting on the throne,[55] as did Alex Salmond, First Minister of Scotland, who pointed out that "It is deeply disappointing that the reform [of the Act of Settlement of 1701] has stopped short of removing the unjustifiable barrier on a Catholic becoming monarch."[40] On the subject, Cameron asserted: "Let me be clear, the monarch must be in communion with the Church of England because he or she is the head of that Church."[40]

The disqualification arising from marriage to a Roman Catholic was removed by the Succession to the Crown Act 2013.[56]