Kevin Rudd could learn something from the statesmanlike approach of Gordon Brown, who is the first British Prime Minister to address an issue which will not go away, those two aspects of the law relating to the succession to the Thrones of sixteen Commonwealth Realms.
The fear of the Blair government was that in taking this issue to the British Parliament, government backbenchers would open up a can of worms. This has been greatly circumvented by what may well constitute the wise advice of The Queen herself. This is to raise the issue first where it belongs. This will be with the relevant Commonwealth leaders at the Commonwealth Heads of Government meeting in November this year in the Caribbean.
This will have the advantage of putting difficult back benchers in the British Parliament in their place when they try to tack on other issues to the legislation, such as the role of the Sovereign in the Church of England and the place of the Church in England.
… constitutional propriety and plain good manners….
Mr Rudd should try to emulate Mr. Brown’s punctilious attention to constitutional proprieties. By announcing twice in London the advent of something he is completely powerless to impose, the politicians’ republic which was overwhelmingly rejected by the people in 1999, Mr. Rudd is not creating a good impression. Of the three Commonwealth Prime Ministers at the G20 meeting, he was left isolated ( "Kevin Rudd isolated in London" 31 March,2009).
He should remember that he became the Prime Minister under the constitutional processes of what is a crowned republic. He should respect and not seek to undermine that constitutional system. In addition, he has sworn allegiance more than once to the Sovereign, but just before seeing her – twice – he has told the media that Australia will become a republic. The suspicion must be that he is playing domestic politics.
An elementary respect for basic good manners should tell him to stop going on about his soi-disant lifelong republicanism.
...republicans sad while monarchists have nothing to fear…
The fact is that Australia’s republicans will be very sad if Gordon Brown is successful. They like to complain that the law is discriminatory, but the last thing they want is for it to be changed. All of the republican politicians or former politicians who go on about this are hypocritical. None of them have ever done anything to initiate action which to change what is an Australian law. If they want change, the ball has long been in their court.
The reason for this hypocrisy is that it suits Australia’s republican politicians to whinge endlessly about the Act of Settlement, and thus attack the Australian Crown to which incidentally they regularly swear allegiance.
In the meantime constitutional monarchists have absolutely nothing to fear about any change in the law which has the support of all the Realms and above all, The Queen. Indeed this process, when completed, will once again demonstrate to all the world how effectively constitutional monarchy can evolve in a changed world. How many politicians’ republics have this ability?
...The process…
If the proposed changes are agreed, as seems highly likely, the amending bills should be quite simple and easily passed. An important subsidiary issue issue will be whether these should be retrospective to cover those members of the Royal Family who have been removed from the line of succession because they have married Catholics, and whether the Princess Royal (Princess Anne) and her children should advance in the line of succession over her younger brothers Prince Andrew and Prince Edward and their children.
On these issues the Prime Ministers should be guided by The Queen.
The issue has been regularly raised over the years by some or other British backbencher who sometimes introduces a private member’s bill to amend the Act of Settlement. But without British government endorsement and the support of all of the fifteen other Realms, the bill is invariably doomed to failure.
...the Realms…
It is a convention among the Realms that their laws relating to the succession be identical. The law, the Act of Settlement, is a statute law of each Realm. This requirement for commonality used to extend to Royal Titles, but with the exception of the title Head of the Commonwealth, the determination of Royal Titles is now left to each country.
This convention agreeing that all Realms agree to any change in the law relating to the succession has been declared in the preamble to the Statute of Westminster, 1931. This principally gave effect to the convention formally declared in 1926 that Britain and the Dominions were equal and independent.
The preamble states “that it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another 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.”
Case law and academic opinion used to suggest that a preamble has no independent substantive effect. When I referred to the Preamble to the Constitution Act, 1900 as authority for the proposition that Australia is as the preamble states, an “indissoluble Federal Commonwealth under the Crown”, Mr. Ian Sinclair, the National Party minister and subsequently Speaker, referred me to this view about preambles.
However some of the judgments in the 1992 High Court case of Leeth v Commonwealth suggest that the Preamble is in fact a source of substantive law. So I had no hesitation in repeating my claim in The Cane Toad republic in 1999 that the preamble to the Constitution Act establishes Australia as an “indissoluble Federal Commonwealth under the Crown”.
The same considerations apply to the Statute of Westminster, about which there has been some suggestion the preamble creates no legal rights in the Realms.
Even if this were so, the Preamble is declaratory of the conventions which govern Commonwealth relations. And in event, it has long been the practice that the Realms must agree.
Incidentally the law relating to the succession has not always been absolutely identical. The laws determining the succession on the abdication of Edward VIII in 1936 took effect on different days.
Only three Realms, Canada, Ireland and South Africa passed separate legislation on the post Abdication succession. Australia did not as we had not then adopted the Statute. This we did in 1942. But we indicated to the British our approval to the change in the succession. This approval was given and received in accordance with the Preamble. The Australian States did not give separate approval. This is relevant because the question has been asked whether the States should have to approve any change in the law relation to the succession.
Since the adoption of the Statute of Westminster, the Commonwealth Parliament has on two occasions legislated on the associated issue of the Royal Titles in Australia.Legislation proposed by Queensland in the so-called Queen of Queensland case was held to be invalid, but this was more about the Privy Council.
...Gordon Brown's proposal…
The Act of Settlement of 1701 was a key part of the Glorious Revolution which finally settled the long disputes between Parliament and the Crown which had so marked the reigns of the previous four Stuart Kings. The Act is best known for ensuring the Protestant succession; it was far more important in establishing the doctrine of the separation of powers which is central to Anglo- American constitutionalism. King William III and Queen Mary II assented to this as part of a superb new system of government, but that is another story.
The proposal for change is that the rule against the succession of Catholics or those married to Catholics is to be repealed. While this had political relevance in the 17th century, it has none today.
In addition male primogeniture is to go. At present males of the same degree take precedence over females, even if they are younger. Prince Andrew and Prince Edward and their children at present rank before Princess Anne.
While male primogeniture may seem discriminatory, it is sometimes forgotten that for some time Britain was in advance of many European countries in that it allowed females to take the throne, something forbidden for example under German Salic law.
The British Prime Minister has correctly insisted ( Mr. Rudd please note) that the changes should not damage the monarchy. Nor for domestic English purposes should the Church of England be disestablished nor change the monarch’s role in England in the Church.
This will not be as difficult to achieve as some people think; there have been Catholic Kings since the reformation, and the Sovereign now plays no governing role in the Church.
….and the States ?
Australian republicans promoted the view in the nineties that alongside the Australian Crown there are six State Crowns. But as the then Federal Attorney General Daryl Williams admitted, this could have resulted in a constitutional monstrosity had we become a federal republic made up of six constitutional monarchies.
This doctrine suited the republicans. They no doubt thought it easier to achieve their politicians’ republic by degrees, the federation first and then the states.
I argued against this in The Cane Toad Republic (1999) on the ground that the Imperial British Crown had only divided into Crowns for each of the Realms. In other words there were Canadian and Australian Crowns. There has never been any agreement in the Commonwealth of Nations that there be Australian state or Canadian provincial Crowns. The Crown in these areas is distinguished, where necessary, by referring to "the Crown in the Right of British Columbia", or "the Crown in the Right of South Australia", not as the "British Columbian Crown" or the "South Australian Crown".
My argument was that if separate state and provincial Crowns had been created , each state and province could then by its own decision secede from the respective Federation. And yet we Australians had agreed in 1900 in the light of the US Civil War that our Federation be indissoluble.
I concluded that the argument that Australia was a “heptarchy”, as the republicans put it , was not only heretical, it was wrong in terms of the understanding of the separate Crowns in our common law.
The position in Australia is further complicated because of the fact that until 1986, there were two Crowns co-existing in Australia, the Australian Crown federally, and at the State level, the British. This was not because of a British wish to control the States; it was only because State politicians of all parties trusted the British more than they did our Federal politicians.
On State matters until 1986, The Queen was advised by Her British Ministers, who normally acted according to the wishes of the States concerned. They refused to do this on those rare occasions when the State’s wishes were seen as being against sound constitutional practice. One such case involved the attempt by Queensland to re-appoint Sir Colin Hannah as Governor. The British ministers believed Sir Colin had intervened in political matters by criticising the Whitlam government.
Since 1986, the Australian Crown has replaced the British Crown at the State level. Now it is true that provincial Crowns have existed in the past in other countries, e.g. Germany and Switzerland. They may now exist in Malaysia. These all clearly pre-existed the federation of those countries; they did not emerge as part of a move to independence under our common law.
In any event I would think the prevailing, indeed overwhelming view among constitutional lawyers would be that state legislation would not be necessary to change the succession. I would anticipate that if any such legislation were to be challenged in the High Court, the Court would most likely rule that it were valid.
In the meantime, once the proposed change is effected the unhappiest people will be Australia’s republicans.
The constitutional system will have shown yet again how superbly it can evolve while maintaining its stability and unequalled standards of good governance.