The Succession to the Crown Bill
1. The Succession to the Crown Bill was introduced
into the House of Commons on 13 December 2012. Both second reading
and Committee of the Whole House have been scheduled for 22 January
2013. Given the subject matter of the bill, it is legislation
of first-class constitutional importance. The Act of Settlement
1700 confirmed the fundamental constitutional principle that Parliament
determines the title to the Crown.
In reference to the current bill, the Deputy Prime Minister has
spoken of "a historic moment for our country and our Monarchy"legislation
"which will make our old fashioned rules fit for the 21st
2. On 9 January we took evidence on the bill
from the Deputy Prime Minister, the Rt Hon. Nick Clegg MP, and
the Minister for Political and Constitution Reform, Chloe Smith
MP. In particular, we
raised the issue of the proposed use of fast-track legislation
for this measure. The principal object of this report is to
advise the House of our conclusions on that matter.
The Perth agreement
3. The bill follows the "Perth agreement"
of 28 October 2011, made at the bi-annual Commonwealth Heads of
Government Meeting. The 16 Commonwealth Realms
which currently recognise Her Majesty as Head of State all agreed
to modernise the existing laws on succession to the Crown.
The system of male preference primogeniture would be abolished,
together with one of the vestiges of a distinctively "Protestant
the bar on those who marry Roman Catholics from succeeding to
the Throne. Led by the government of New Zealand, the 16 Realms
further agreed to work together to enable the necessary measures
to be given effect simultaneously in their respective jurisdictions.
The explanatory notes to the bill underwrite this: the Government
expect to bring the substantive provisions into force "at
the same time as the other Realms bring into force any changes
to their legislation or other changes which are necessary for
them to implement the Perth agreement".
4. A third matter was referred to the other Realms
by the Prime Minister: the requirement of the Monarch's consent
to certain marriages. On 2 December 2012 the UK Government received
final written agreement
from all the other Realms regarding all three aspects of the proposed
reform. The following day the Duchess of Cambridge's pregnancy
5. We welcome the close consultation and co-ordination
between the Realms. Considerations of
mutual respect and friendship among sovereign states, and of uniformity
and decorum, demand nothing less. More particularly, the approach
accords with the clear expression of will in the preamble to the
Statute of Westminster 1931 that "any alteration in the law
touching the Succession to the Throne or the Royal Style and Titles
shall hereafter require the assent as well of the Parliaments
of all the Dominions as of the Parliament of the United Kingdom".
The provisions of the bill
6. Clause 1 of the bill removes the element of
gender discrimination in the existing common law rules whereby
an elder daughter is displaced by a younger son in the line of
succession. It is thus provided that the gender of a person born
after the making of the Perth agreement (i.e. 28 October 2011)
"does not give that person, or that person's descendants,
precedence over any other person (whenever born)".
7. Clause 2 removes an element of religious discrimination
deriving from the Bill of Rights 1688 and section 2 of the Act
of Settlement 1700. Clause 2(1) provides that "a person is
not disqualified from succeeding to the Crown or from possessing
it as a result of marrying a person of the Roman Catholic faith."
Reflecting as it does a historical struggle between the forces
of Protestantism and Catholicism in Europe, the existing disqualification
is unique. In evidence, the Deputy Prime Minister said:
"Under the present provisions an heir to the
throne can marry someone of another religious denominationsomeone
of the Hindu or Muslim faiths
What we are doing is simply
removing a very specific act of discrimination against Catholics".
Clause 2 is retrospective in that those who have
married Roman Catholics will regain their places in the current
line of succession. However, in the words of the explanatory notes,
"this does not affect anyone with a realistic prospect of
succeeding to the Throne".
8. Clause 3 will repeal the Royal Marriages Act
1772, which (subject to exceptions) renders void the "marriages"
of descendants of George II who fail to obtain the Monarch's permission
to marry. This is thought to apply to several hundred people,
"many of whom will be unaware of the Act or its impact".
The requirement of the Sovereign's consent is not abolished entirely,
however. Rather it is (a) narrowed so as to apply only to the
first six in the line of succession and (b) softened, such that
failure to comply is no longer a matter of invalidity but of disqualification
of that person and of that person's descendants from succeeding
to the Crown. As such, clause 3 better respects the right to marry.
Clause 3(5) removes the broader effects of the 1772 Act retrospectively
in most cases.
9. Clause 4 and the Schedule make consequential
amendments. In particular, clause 4(3) provides that relevant
Articles in the Union with Scotland Act 1706 and the Union with
England Act 1707, and in the Union with Ireland Act 1800 and the
Act of Union (Ireland) 1800, are subject to the provisions of
the bill. The Regency Act 1937 is also amended, so that a person
subject to, and failing to comply with, the reworked requirement
of consent to royal marriages is disqualified from being Regent.
10. Clause 5 provides that the substantive provisions
of the bill will come into force on such day and at such time
as is specified by order made by the Lord President of the Council.
11. We began our 2011 report The Process of
by observing that:
"the constitution is the foundation upon which
law and government are built. The fundamental nature of our constitution
means that it should be changed only with due care and consideration
Process is critical in terms of upholding, and being seen
to uphold, constitutional values: particularly those of democratic
involvement and transparency in the policy-making process."
We drew attention in that report to a number of weaknesses
in the current practice of legislating for significant constitutional
change, including the lack of constraints on the Government, failure
to have regard to the wider constitutional settlement, changes
being rushed and lack of consultation.
12. While we fully recognise the need for a consensual
approach among the 16 Realms, the bill relates to domestic constitutional
arrangements in the UK, such as the position of the Church of
England, in ways which are of little or no relevance to the other
Commonwealth Realms. As regards consultation with the Royal Household,
the Prime Minister told the Commons that "there has been
very thorough contact between No. 10 Downing street and the palace,
and all the issues are settled and agreed".
The Deputy Prime Minister further assured us that:
"there has been extensive consultationnot
only between us and the other Commonwealth realms, but also, of
course, between officials in the Cabinet Office and officials
in the Royal Householdover a prolonged period of time."
13. Notwithstanding the constitutional significance
of the legislation, the explanatory notes record the Government's
intention "to ask Parliament to expedite the parliamentary
progress of this Bill".
The explanatory notes seek to give answers
according to a template of questions first set out in our 2009
report Fast-track legislation: constitutional implications
As such, they are part of an unbroken practice since the publication
of the 2009 report.
We note with approval the rapid emergence of a constitutional
convention whereby, when ministers decide to promote fast-track
legislation, a set of explanations is provided to Parliament.
14. The definition of fast-track legislation
is imprecise. The 2009 report described it as legislation which
"passes through the stages of scrutiny in both Houses at
a faster rate than normal."
"There is, in essence, a fast-track "spectrum",
in terms of the degree to which the normal intervals between stages
are departed from."
Situated at one end of this "spectrum", the Government's
original plan for Commons scrutiny of the Succession to the Crown
Bill certainly was abnormal. The notice of the programme motion
which appeared before 9 January proposed all Commons stages on
the bill in one day.
Is fast-track legislation justified?
15. The Committee recently argued that the use
of fast-track legislation to address legal issues that have been
known about for a long time should be avoided.
We note the argument in the explanatory notes for expedition in
the light of the Perth agreement.
However we also note, first, that the procedural promises made
to the other Realmsthat the UK would be the first to draft
and to introduce legislationhave
already been kept; and, secondly, that the legislation will in
any event "not be commenced until the other Commonwealth
Realms have put in place the changes which are necessary for them".
The explanatory notes record that, following the announcement
of the Duchess of Cambridge's pregnancy, "the Government
believes that there is a general consensus that the law should
be changed as soon as possible".
Given that it was possible to publish the bill so soon after the
announcement, it is hard to see the justification for highly attenuated
legislative proceedings. It should also be observed that, technically
speaking, the retrospective element of the provision obviates
the particular need for fast-tracking.
16. From a constitutional standpoint, further
points arise. We drew attention in our 2009 report to the deleterious
consequences of fast-track legislation in terms of constrained
parliamentary scrutiny, executive dominance, and limited public
engagement and transparency.
We also recall in the present context the argument that "where
there is consensus on the process to which a proposed constitutional
change has been subjected, that change will be more widely acceptable,
whether or not the merits of the change are universally agreed."
We made clear in the 2009 report that, in support of our constitutional
system of representative democracy:
"it is imperative that such fast-tracking of
normal parliamentary procedure should only occur where strictly
17. As regards the handling of the Succession
to the Crown Bill, the Deputy Prime Minister said in evidence
"I want to stress that there is nothing untoward
about a rather pragmatic decision taken by the business managers.
It is straightforward; it seemed to enjoy complete consensus.
There have been no significant reservations raised by the other
realms. We have a very congested legislative agenda. It was a
pragmatic business-management decision
It was just a pragmatic
assessment of how long it needed or, rather, how little time it
18. The Minister, Chloe Smith MP, confirmed that:
"it is not any sense of doing it as an emergency
this has been in public and well-aired since the Commonwealth
Heads of Government Meeting in 2011
we had not anticipated
it to be fundamentally controversialin the sense that it
removes a very specific piece of discrimination and is very short."
19. We note that, following our meeting with
the Deputy Prime Minister and the Minister for Political and Constitutional
Reform, notice of a new programme motion was published proposing
all stages in the Commons in two days.
In light of the undoubted constitutional significance of the Succession
to the Crown Bill, the House will no doubt wish to reflect on
whether a similar approach would allow for proper deliberation
and scrutiny in the Lords.
20. In our view, the use of fast-track legislation,
while it may be necessary for reasons of emergency and overriding
public interest, will rarely, if ever, be appropriate for significant
constitutional matters. It is never appropriate for reasons of,
in the Deputy Prime Minister's words, "pragmatic business
21. The fact that legislation is short or
that the executive does not anticipate it being controversial
are not in themselves reasons to set aside the usual parliamentary
scrutiny of a bill. In parliamentary scrutiny there can emerge
issues which had been previously overlooked or hidden.
22. Questions may be raised about possible unintended
consequences of the bill.
In the light of an often conflicted history stretching back to
the English Reformation in the 16th century, the concern expressed
is first and foremost about the relationship between the monarchy,
the Established Church in England and the Roman Catholic Church.
As rehearsed in the Preface to the 39 Articles of the Established
Church, this more particularly involves the constitutional place
and role of the Monarch as "Defender of the Faith[]
and Supreme Governor[]
of the Church in England".
23. The particular sensitivities in the relationship
between Church and State are illustrated in an array of statutory
provisions regarding the Monarch and the monarchy. Section 1 of
the Act of Settlement 1700
refers to "the Heirs
, being Protestants"; section
2 excludes persons who "shall profess the Popish Religion"
from the Throne; and section 3 states that the Monarch "shall
joyn in communion with the Church of England as by Law established".
There is detailed provision about the declarations and oaths to
be made by a new Monarch. The Accession Declaration Act 1910 requires
that he or she "profess, testify and declare that I am a
faithful Protestant" and will "uphold and maintain"
the enactments "which secure the Protestant succession to
the Throne of my Realm". Likewise, together with the Act
of Union 1707, the Coronation Oath Act 1688 largely framed the
oath sworn by Her Majesty in Westminster Abbey in 1953:
"to the utmost of [her] power maintain in the
United Kingdom the Protestant Reformed Religion established by
maintain and preserve inviolably the settlement of
the Church of England, and the doctrine, worship, discipline,
and government thereof, as by law established in England".
24. The Government consider that "the relationship
between the Church and State in England is an important part of
our constitutional framework that has evolved over the centuries"
and have "no current intention of changing this position".
Further, the Government are "committed to the Church of England
as the Established Church in England, with the Sovereign as its
As regards the Succession to the Crown Bill, the existing bar
on a Roman Catholic Monarch will remain. With reference to removal
of the bar on the Monarch being married to a Roman Catholic, the
Government do "not believe that this raises questions about
the future role of the Sovereign in the Church of England".
25. An issue has been raised concerning the religious
upbringing of a royal heir. It was pointed out by the House of
Commons Political and Constitutional Reform Committee in the wake
of the Perth agreement:
"Catholics are normally obliged under canon
law to bring up as Catholics any children from an inter-faith
marriage.[] The proposal
thus raises the prospect of the children of a monarch being brought
up in a faith which would not allow them to be in communion with
the Church of England. This would prevent them from acceding to
One possible response in this scenario would be to
seek papal dispensation in respect of a child's upbringing, either
before or after proceeding with the marriage.
The question of whether possible reliance on discussions with
the Vatican represents a satisfactory and convincing response
is a relevant matter for debate in relation to clause 2.
26. In evidence, the Deputy Prime Minister said:
"The Catholic Church itself has not had a doctrine
for many years obliging people who are of a mixed religious denomination
to educate their children as Catholics. That has been made clear
... There is a lot of flexibility and the Catholic Church has
been very clear about that."
27. The further question arises in this context
of the relationship between clauses 2 and 3 of the bill. The Deputy
Prime Minister warned against:
"mixing two things here. The restriction of
who must seek the permission of the monarch to marry to six individuals
is separate from the issue of whether the heir to the throne can
marry a Catholic just as he or she can marry someone of other
However, conceivably the Monarch could be expected
to decide whether or not a person high in the line of succession
should be allowed to marry a Roman Catholic.
28. There is a lack of explanation in the explanatory
notes for retaining a requirement of consent to certain royal
marriages. On whether clause 3 is compatible with Convention rights
(the right to marry), it is simply stated that "in the Government's
view there is a public interest in having special provisions";
that the clause has "a legitimate aim" and is "proportionate";
and that "other European monarchies also have requirements
of consent" to royal marriages.
Presumably the status of divorcees is no longer a matter of contention.
29. An issue arises with the Duchy of Cornwall,
which provides the source of revenue for the heir apparent to
the throne. When the Duke of Cornwall succeeds to the throne,
the Duchy automatically transfers to the new heir. At present,
however, the Duchy can only be held by a male. If it is to continue
to be held by the heir apparent to the throne, the Letters Patent
for the Duchy will need to be altered. The explanatory notes to
the Succession to the Crown Bill are silent on the matter.
30. As with the Duchy of Cornwall, most hereditary
peerages involve male primogeniture according to letters patent.
Since 92 seats are still reserved for hereditary peers in the
House of Lords, this
has constitutional significance in terms of gender representation
in Parliament. Although the Succession to the Crown Bill may be
said "to cast the spotlight on the hereditary aristocracy"
in this respect, the Government believe that "the laws of
succession with regard to hereditary peerages
a separate issue", one which ministers have "no plans"
31. Whilst we do not here seek to resolve
the points raised about possible unintended consequences, they
demonstrate the need to provide the opportunity for full debate
1 In order to secure the Protestant succession, section
1 of the Act of Settlement 1700 constructed the order of succession
through Princess Sophia, Electress of Hanover. Back
Deputy Prime Minister, Royal succession rules will be changed,
press release, 4 December 2012. See further, House of Commons
Library, Succession to the Crown Bill 2012-13, Research
Paper 12/81 (December 2012). Back
As part of our annual evidence session with the Deputy Prime Minister:
the full transcript is available on the Committee's webpages. Back
Antigua and Barbuda, Australia, the Bahamas, Barbados, Belize,
Canada, Grenada, Jamaica, New Zealand, Papua New Guinea, St Christopher
and Nevis, St Lucia, St Vincent and the Grenadines, the Solomon
Islands, Tuvalu and the United Kingdom. Back
The text of the Perth agreement is in Annex 1 of the resulting
report by the House of Commons Political and Constitutional Reform
Committee, 11th report (2010-12): Rules of Royal
Succession (HC 1615). Back
Originating in the realm of Henry VIII with statutes including
the Act of Supremacy 1534. Back
Para 42. Back
ibid., para 11. Back
In face of the principle of divisibility of the Crown, whereby
Her Majesty is Queen in each of the Realms separately. Back
Three of the present 16 Realms were dominions at that time: Australia,
Canada and New Zealand. Back
Unrevised transcript of evidence, 9 January 2013, Q8. Back
Para 28. Back
ibid., para 5. Back
As provided for by Article 12 of the European Convention on Human
The bill has no provision on territorial extent; however, as well
as extending to the whole United Kingdom, it will extend to the
Crown Dependencies and British Overseas Territories by necessary
implication. Para 13 of the explanatory notes records that "the
Devolved Administrations, Crown Dependencies and British Overseas
Territories have all been kept informed throughout the drafting
Constitution Committee, 15th report (2010-12): The
Process of Constitutional Change (HL Paper177). Back
ibid., para 1. Back
ibid., para 51. The Government disagreed with our recommendations:
The Government Response to the House of Lords Constitution
Committee Report "The Process of Constitutional Change",
Cm 8181, 2011. Back
HC Deb, 9 January 2013, col 310. Back
Unrevised transcript of evidence, 9 January 2013, Q8. Back
Para 15. Back
ibid., paras 16-25. Back
Constitution Committee, 15th report (2008-09): Fast-track
legislation: constitutional implications and safeguards (HL
Paper116), para 186. Back
For details, see Constitution Committee, 8th Report
(2012-13): Police (Complaints and Conduct) Bill (HL Paper
80), paras 4-5. Back
Fast-track legislation, op. cit., para 12, Back
ibid., para 26. Back
Police (Complaints and Conduct) Bill (HL Paper 80), op.
cit., para 7. Back
Paras 16-18. Back
ibid., paras 10, 16. Back
ibid., para 18. The appendix to Succession to the Crown
Bill 2012-13, op. cit., gives an overview of the relevant
constitutional arrangements in the other Realms. Back
ibid., para 17. Back
Fast-track legislation, op. cit., chapter 3. Back
The Process of Constitutional Change, op. cit., para 2. Back
Fast-track legislation, op. cit., para 152. Back
Unrevised transcript of evidence, 9 January 2013, Q13. Back
ibid., Q10. Back
HC Deb, 10 January 2013, col 465. Back
As allegedly by the Prince of Wales in a private meeting with
the Permanent Secretary of the Cabinet Office: first reported
in Mail Online, 7 January 2013, and subsequently covered
by a number of newspapers (for example, The Sunday Telegraph,
13 January 2013). Back
A royal title first bestowed on Henry VIII by Pope Leo X. It has
been suggested that Prince Charles, should he succeed to the Throne,
might instead take the title "Defender of the Faiths"
or "Defender of Faith", better to reflect a multi-faith
For discussion of the contemporary role of the Monarch as "Supreme
Governor", see Rules of Royal Succession, op. cit.,
oral evidence, Q 3. Back
The provisions in the Act of Settlement 1700 build on the Bill
of Rights1688. Back
Unless so requested by the Church of England: House of Commons
Political and Constitutional Reform Committee, 1st
Special Report (2012-13): Rules of Royal Succession: Government
Response to the Committee's Eleventh Report of Session 2010-12
(HC 586), p 2. Back
Rules of Royal Succession, op cit., para 9. Back
Other religions, for example Islam, have similar precepts on the
upbringing of children. Back
The canon law requirement was waived in respect of the children
of HRH Prince Michael of Kent. Back
Unrevised transcript of evidence, 9 January 2013, Q8. See further,
William Oddie, "Why shouldn't there be a Catholic 'Supreme
Governor' of the Church of England?" Catholic Herald,
31 October 2011. Back
ibid., Q9. Back
Paras 53-54. Back
As it famously was earlier in Her Majesty's reign regarding Princess
Margaret. In 2005, Prince Charles married Camilla Parker Bowles
(now the Duchess of Cornwall) in a civil ceremony, both being
divorcees; see further, HL Deb, 24 February 2005, cols WS 87-88.
On 31 December 2012 Her Majesty issued letters patent "to
declare that all the children of the eldest son of the Prince
of Wales should have and enjoy the style, title and attribute
of Royal Highness with the titular dignity of Prince or Princess".
Previously, under letters patent made by George V in 1917, the
style "HRH" and titles "prince" and "princess"
were restricted to the sovereign's children, the children of the
sovereign's sons, and the eldest son of the eldest son of the
Prince of Wales. The new letters patent sit more comfortably with
clause 1 of the bill. Back
Under the House of Lords Act 1999. Back
Rules of Royal Succession, op. cit., para 15. Back
op. cit., note 42, p 2. See also unrevised transcript of
evidence, 9 January 2013, Q13. Back