We recently reported on Lord Dubs private members bill to change the Act of Settlement, and the Royal Marriages Act. The purpose was to provide the eldest child succeed, whether a boy or girl, that the heir be allowed to marry a Catholic and ending the requirement that a Royal Marriage must be approved by The Queen.
Lord Dubs decided not to proceed further when the Lord Chancellor, Lord Falconer, indicated the proposal raised constitutional issues which needed further study, and that the issues were not pressing.
The Lord Chancellor would know all about the danger of rushing constitutional change. He was Mr Blair’s choice as last Lord Chancellor when the Prime Minister announced, without any consultation, and it was widely reported, without telling The Queen, that the ancient office of Lord Chancellor would be abolished. Lord Falconer would exercise the functions temporarily as Minister for Constitutional Affairs.
It was then discovered that abolition would require the repeal or amendment of a vast number of Acts of Parliament, and moreover abolition had little support. According to The Guardian, now an almost obsessed republican newspaper, opponents of the bill argued that the Commonwealth could end up with more than one head unless all member states passed the same legislation.
This is a point ACM has long been making. In fact the preamble to the Statute of Westminster reflects the correct constitutional position-the Realms must agree on changes to the succession.
Some opponents in the Lords were also concerned that allowing the marriage of the heir to a Catholic would change the nature of relations between the Church of England and the state. The Bishop of Winchester, Michael Scott-Joynt, who with certain other bishops of the Church of England ,sits in the chamber as a Lord Spiritual, said it posed the question:
"What kind of state have we and what kind of state do we want? "
But the Bishop of Worcester, Peter Selby, said there was absolutely no reason why a Catholic or the spouse of a Catholic could not be Supreme Governor of the Church of England if well-advised by the ministers – presumably of the Crown and not of the cloth.
The ecclesiastical position is of course of no relevance in Australia where there is no established church. But the point made in the Lords that the other Realms should be consulted and will need to approve any change is correct.
It would be most unlikely that any of the Realms would object to any of these proposed changes, but constitutionally Australia would have to legislate to change the succession.
While the title of the Sovereign is determined by federal legislation, there may be an argument that questions relating to the succession require supporting state legislation under the Australia Act. It is hard not to agree with the Lord Chancellor that these questions need further study and are certainly not pressing.