The rule that the Sovereign can’t be a Catholic has long been on the reform agenda.
It pops up from time to time. Sometimes it arises because some republican grandee wishes to grab the headlines. Sometimes it is because a government needs a distraction. There are even times when the proponent is actually genuine.
Referring to indications the British government will change the Act if it is returned after the election, Philip Johnston asks in the London Daily Telegraph of 25 September, 2005 “Is it time to scrap the Act of Settlement?”
The answer is no – just amend it. The Palace has indicated The Queen has no objection to a change in this rule, and also the rule that a male of the same rank has precedence over females, male primogeniture.
Actually our common law was for centuries in advance of some other legal systems, such as German Salic law, which could never contemplate a female monarch such as Queen Elizabeth I.
That is why Queen Victoria did not succeed to the throne of Hanover.
The War of the Austrian Succession (1740-1748), which involved most of the European powers, began because it was argued the Empress Maria Theresa of Austria should not succeed because of Salic law.
…. the Act of Settlement and the Glorious Revolution…
The change would mean that if Prince William had an older sister, she would succeed before him.
It would seem a change concerning female succession would have little immediate practical relevance.
But it would if say, Prince William or Prince Harry, were to marry a Catholic.
This does not mean that, as the papers are saying, the relevant legislation, the Act of Settlement, 1701 should be “axed” or “scrapped”
The Act of Settlement is as much Australian, New Zealand or Canadian law as it is British.
It is a significant part of the constitutional reforms which together are often referred to as the "Glorious” or “ Bloodless Revolution” which began in 1688.
The joint Sovereigns, King William III and Queen Mary II, agreed to those reforms.
Mary’s father, King James II, was deemed to have abdicated when he fled England, destroying important state documents and throwing the Great Seal into the Thames.
Parliament was unhappy with James who seemed to see himself more as an absolute monarch on the model which now prevailed on much of the continent.
Parliament would not agree to the Crown descending to James’ young son, Prince James Francis Edward Stuart.
This was because both father and son had gone to France and were under the protection of the Realm’s mortal enemy, King Louis XIV of France, who had clear ambitions to control all of Europe.
Instead James’ daughter and her husband, the Dutch Prince, William of Orange were invited to take the Throne.
William, a Calvinist, was incidentally in alliance with the Pope in the League of Augsburg, a defence against French aggression.
…why the Act of Settlement is important…
It introduced the important rule that judges were no longer appointed “at pleasure,” but “during good behaviour” and that they could only be removed by a resolution of both Houses of Parliament.
This was the beginning of the separation of powers which Montesquieu later discovered in the English constitution.
This separates the judicial power from the executive and legislative powers, a doctrine which was taken to the United States , Australia and other lands.
This is yet another example of allowing a constitution to evolve through trial and error, rather than letting some obsessed individuals or some movement declare what the constitution should be.
Quite often they don't understand what they are doing. Or there are unintended consequences in following them. Or worse they have an agenda which they are keepin secret.
Australia's so called republicans encompass each of these three evils.
…amending the Act of Settlement…
Under the present constitutional arrangements governing the personal union of the sixteen Crowns of the Commonwealth, the Realms agree that any change to the succession will be done only by common consent.
This principle may be found expressed in the Preamble to the Statute of Westminster, 1931, which was adopted in Australia in 1942.
The better process would be for the British government rather than a private member to draft an amending Bill in consultation with the Palace, consult with the governments of the Realms and then for it to be introduced into the UK Parliament where any objections could be considered.
Objections are more likely in the UK because of religious issues which do not apply in other realms.
Before Royal Assent is granted it could then be introduced into the Parliaments of the other Realms.
…the place of the Act of Settlement in our constitutional system…
On 2005, in O'Donohue v. Canada, a Canadian lawyer opposed to Canada’s oldest institution, her Crown, sought a declaration that the Act of Settlement breached the Canadian bill of rights, the Canadian Charter of Rights and Freedoms.
The ruling of the Superior Court of Justice of Ontario would be a persuasive precedent if some action were brought in Australia, New Zealand and other Realms.
Similar litigation in the UK was also unsuccessful.
The Canadian Court said that to make such a declaration would make the constitutional principle of union under the Crown together with other Commonwealth countries unworkable.
It “would defeat a manifest intention expressed in the preamble of our Constitution, and would have the courts overstep their role in our democratic structure.”
Those who whinge most about the Act of Settlement – politicians who have an agenda to change the Constitution – have never done anything about amending it.
It is open to any government, including the Australian government, to propose changes.
Accordingly, we can assume they are not genuine and are only using the Act of Settlement as a whipping boy.