Document 1245

Scottish Parliament: Research Briefings: RP 99-17 The Act of Settlement

Author(s): Scottish Parliamentary Corporate Body

Copyright holder(s): Scottish Parliamentary Corporate Body: © Scottish Parliamentary copyright material is reproduced with the permission of the Queen's Printer for Scotland on behalf of the Scottish Parliamentary Corporate Body.

RESEARCH PAPER 99/17
14 DECEMBER 1999

THE ACT OF SETTLEMENT
The Parliament is due to debate the Act of Settlement on Thursday 16 December, on an SNP motion. This Act is part of a web of constitutional legislation which ensures that the Crown, and the line of succession, remains the preserve of those of a Protestant faith. In particular, no Catholic, nor anyone marrying a Catholic, can succeed to the Crown or remain as Sovereign.

This Research Paper briefly outlines the relevant constitutional history and legislation, north and south of the border, and the current debate on the effect and possible future of this legislation.

The issue of the Crown, including the succession to the Crown, is expressly made a reserved matter by the Scotland Act 1998. This means that the Parliament cannot make valid law in this area.

SUMMARY

“The Act of Union with Scotland (May, 1707) further complicated the question with reference to the connection of church and state. By it the nation [England] was involved in the religious anomaly which had formerly belonged to the sovereign alone, and the church of Scotland was incorporated with the constitution of two united kingdoms upon the same footing, in the most essential respects, with the church of England. Doubtless it was under the belief, however questionable its foundation, that the differences between the two churches were unimportant, and that unity was not substantially violated by the change. Subsequently to the rebellion of 1745, the episcopalians of Scotland were subjected to a legal suppression of their worship with fine and imprisonment … It was upon political grounds that this conduct was adopted; conduct which may serve to show how delicate is the subject-matter of the question with which we are dealing, and how necessary is a clear comprehension of the principles which should govern the relations between the church and the state.”
WE Gladstone, The state in its relations with the church, 3rd ed., 1839

On Thursday 16 December, the Parliament is due to debate, as business initiated by the SNP, the following motion:

S1M-117 Michael Russell: Act of Settlement—That the Parliament believes that the discrimination contained in the Act of Settlement has no place in our modern society, expresses its wish that those discriminatory aspects of the Act be repealed, and affirms its view that Scottish society must not disbar participation in any aspect of our national life on the grounds of religion.

This paper provides some general background in the context of the Parliament’s debate of what is, in legislative terms, a ‘reserved matter’. It briefly looks at the constitutional background and context, especially in the late 17th and early 18th century, north and south of the border. It also brings together some of the recent political and constitutional argument and activity over the issue in Scotland and at UK level.

As is inevitable with a subject of this nature, there are many interlocking strands – historical, constitutional, political, theological – and this Paper seeks to concentrate on those relevant to the current debate, especially from a Scottish perspective.


TABLE OF CONTENTS

I. The Act of Settlement ................................................................................5

II. The constitutional law of the Protestant succession .............................6
Scotland ..................................................................................................................6
England ...................................................................................................................8
The current position.............................................................................................. 10

III. Recent developments............................................................................. 11
Action in the Scottish Parliament.......................................................................... 11
Action in the UK Parliament and Government...................................................... 11

IV. The future................................................................................................. 13

V. The Statute of Westminster 1931........................................................... 17

Appendix: Text of the Act of Settlement and other statutes


I. THE ACT OF SETTLEMENT
The Act of Settlement 1700 (1) is an Act of the pre-Union English Parliament. The intention of the measure was to settle the succession in a protestant line to follow the death of Queen Anne. For present purposes, the main provisions of the Act are that

• the line of succession is through the Hanoverian line, being protestants
• those who are or become Catholics or marry a Catholic shall be excluded from the succession
• a person who succeeds to the Crown must be in communion with the Church of England.

The relevant provisions (2) are set out in the annex to this Paper. The Act of Settlement was made part of Scots law through the Treaty of Union, by virtue of Article II. This, in effect, made the line of succession to the English Crown, which the English Parliament had determined through the Act of Settlement, the line of succession to the new Crown of the United Kingdom of Great Britain. The provisions were reinforced, for the new state, by provisions (now repealed) in the Succession to the Crown Act 1707, by which active denial, by preaching or speaking, of the legitimacy of the succession set by the 1700 Act, or support for the Jacobite claim, was made a serious offence. (3)

The interpretation of these provisions would ultimately be a matter for the courts, or for the UK Parliament if amendment is contemplated. Because of the nature of the statutory language and the sensitivity of the subject, the meaning of some of the relevant provisions may not be unambiguous. For example the phrase “or shall marry a papist” has been interpreted by some as meaning that no statutory disability applies where a person marries somebody who subsequently becomes a Roman Catholic.

The case of the present Duke and Duchess of Kent is often cited in this context. The Duchess of Kent, who married the Duke (who is currently 19th in order of succession) in 1961, was received into the Catholic Church in January 1994. (4) At the time of the Duchess’s conversion, Buckingham Palace stated its view that

• the Bill of Rights and the Act of Settlement prevents the succession of a person married to someone who at the time of the marriage is a Roman Catholic
• the legislation does not apply to cases where the spouse of an otherwise eligible successor enters the Roman Catholic Church at a later date
• the Duchess’s action, therefore did not affect the Duke’s right, nor that of their children, to succeed. (5)

Prince Michael of Kent and the Earl of St Andrews (the eldest son of the Duke and Duchess of Kent) have lost their right of succession by marrying Roman Catholics in, respectively, 1978 and 1988. (6) Their children remain in succession, so long as otherwise eligible.


II. THE CONSTITUTIONAL LAW OF THE PROTESTANT SUCCESSION

Scotland

A key English policy aim during the Union negotiations prior to 1707 was to ensure that their settlement of the succession issue through the 1700 Act would be maintained by and through the new United Kingdom. This would thereby avoiding any risk of a split monarchy (especially if the Scots were to support a Catholic claimant). (7) Equally, it was an aim of Scottish policy (at least among some sections of the leadership) that the autonomy and continuity of the Scottish Crown be maintained (in a protestant line (8)) whatever was being proposed for the succession to the English Crown (i.e. the notion of an ‘imperial crown’). Events prior to the Union, especially the Act of Security which eventually received royal assent and became law in August 1704, demonstrated the effect of these policies in the context of the Union negotiations. That Act contained the following:

“… the foresaid Estates of Parliament convened or meeting are hereby authorised and empowered to nominate and declare the successor to the imperial crown of this realm and to settle the succession thereof upon the heirs of the said successor’s body; the said successor and the heirs of the successor’s body being always of the royal line of Scotland and of the true protestant religion, providing that the same be not successor to the Crown of England unless that in this present session of Parliament or any other session of this or any ensuing Parliament during her Majesty’s reign there be such conditions of government settled and enacted as may secure the honour and sovereignty of this crown and kingdom; the freedom, frequency and power of Parliaments; the religion, liberty and trade of the nation from English or any foreign influence …..”

This provoked a strong English reaction, through what was known as the ‘Alien Act’ of 1705, which would have treated all Scots not resident in England as aliens, and imposed great restrictions on Scots trade if Scotland did not agree to speedy progress to a Union (including the Hanoverian succession).

The assertion by the Scottish Parliament of the right to determine a protestant line to the Scottish Crown had a long history, although subject to the fluctuations in religious ascendancy in the previous century. A 1567 Act, one of a series that year to establish the reformed Church, provided for a coronation oath by which the monarch swore to maintain and protect the religion of the realm (1567 c 8). One leading author noted, “this was of more political than legal interest, though ... it provided the first complaint of the Claim of Right against James VII.” (9)

The preamble to the 1689 Claim of Right set out clearly the key connection between religious and political issues in the revolutionary situation of the time:

Whereas King James the Seventh being a professed papist did assume the regal power, and acted as King without ever taking the oath required by law, whereby the King, at his access to the government is obliged to swear, to maintain the Protestant religion, and to rule the people according to the laudable laws; and did by the advice of wicked and evil counsellors, invade the fundamental constitution of this Kingdom and altered it from a legal limited monarchy, to an arbitrary despotic power; and in a public proclamation, asserted an absolute power, to cass, annul, and disable all the laws, particularly arraigning the laws establishing the Protestant religion and did exercise that power to the subversion of the Protestant religion, and to the violation of the laws and liberties of the Kingdom:

The Claim of Right (1689 c.13) went on to detail a number of grievances and declarations which expanded on these themes, including the following, relevant to the subject of this Paper:

“That the marriage of a King or Queen of this realm to a papist is dangerous to the Protestant religion and ought to be provided against…..

that by the law of this kingdom no papist can be King or Queen of this realm nor bear any office whatsoever therein nor can any protestant successor exercise the regal power until he or she swear the Coronation Oath”

The Act for the Security of the Protestant Religion of 1706 (c.6), passed by the Scottish Parliament, was designed to protect the position of the Church in Scotland in the face of impending political union and the larger English Church:

“ .. and lastly that after the decease of her present majesty (whom God long preserve) the sovereign succeeding her in the Royal Government of the Kingdom of Great Britain shall in all time coming at his or her accession to the Crown swear and subscribe that they shall inviolably maintain and preserve the foresaid settlement of the true Protestant religion with the government, worship, discipline, right and privileges of this church as above established by the laws of this kingdom in prosecution of the Claim of Right”

The Act also declared that its provisions were to be ‘fundamental and essential conditions’ of the Treaty of Union, and it was duly inserted into the Union legislation of both countries.

England

The 1688-89 ‘revolution’, a key development in British constitutional history, was the immediate backdrop to the religious provisions of the Act of Settlement. Until 1688 there was nothing on the statute book to prevent the monarch being a Catholic. Indeed James II, an avowed Catholic, was in the position of also being supreme governor of the Church of England, a post bestowed by statute. The religious references in the statutes which defined the new constitutional settlement (10) were, at least in part, a reaction to apparently genuine fears of English protestants at the time of a Catholic presence at the heart of the state, given the political history of the previous century.

The replacement by Parliament of one royal line for another made it objectively difficult to classify many of the actions and laws of the time as legitimate, at least by the norms of more recent times. Shortly after his accession in 1685, James VII and II prorogued the English Parliament and, although it was not dissolved until July 1687, it never met again. Thus at his departure there was no Parliament and the Convention Parliament summoned by William of Orange before his accession was inevitably irregularly convened. The Commons resolved in January 1688 –

"That King James II having endeavoured to subvert the constitution of the kingdom by breaking the original contract between the King and people and by the advice of Jesuits and other wicked persons having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government; and that the throne is thereby vacant." (11)

On 12 February a declaration was drawn up affirming the rights and liberties of the people and conferring the crown upon William and Mary, and stating the line of succession. Once the declaration had been accepted by William and Mary, it was published as a proclamation. The declaration was subsequently enacted with some additions in the form of the Bill of Rights 1688. The Acts of the Convention Parliament were subsequently ratified and confirmed by the Crown and Parliament Recognition Act 1689, which also acknowledged the King and Queen. In this way the Bill of Rights was confirmed by a Parliament summoned in a constitutional manner and thereby acquired the force of a legal statute and appears as such on the statute book.

The Bill of Rights in effect excluded Roman Catholics or those who marry Roman Catholics from the succession and provides for the protestant succession. It required the monarch on his or her accession to make before Parliament a declaration rejecting Roman Catholicism. The specific connection at this stage with the Church of England came in the Coronation Oath Act of the same year which requires the King and Queen to swear, during the coronation ceremony, that they will to the utmost of their power -

"maintaine the Laws of God the true profession of the Gospell and the Protestant reformed religion established by law ... and ... preserve unto the bishops and clergy of this realm and to the churches committed to their charge all such rights and privileges as by law do or shall appertain unto them or any of them".(12)

This oath has been modified since then, though not expressly by statute. The present Queen, at her Coronation on 2 June 1953, swore to

• “govern the Peoples of the United Kingdom of Great Britain and Northern Ireland [and other realms and territories] according to their respective laws and customs”
• “to the utmost of [her] power maintain in the United Kingdom the Protestant Reformed Religion established by law“
• “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”
• “preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them” (13)

The Act of Settlement was seen as necessary to secure the protestant succession. The Stuarts still had claims to the throne and “it being absolutely necessary for the safety, peace and quiet of this realm to obviate all doubts and contentions in the same by reason of any pretended titles to the crown”(14), the Act was passed, devolving the protestant succession after Queen Anne (assuming no heir) on Princess Sophie the Electress of Hanover and her protestant heirs.

The two 1688 enactments establish an exclusion of Catholics and an obligation to uphold the established protestant religion (the Church of England), but technically they did not require the monarch to be a member of the Church of England. This was remedied in s3 of the Act of Settlement which requires active participation in the Church of England by the monarch (“That whosoever shall hereafter come to the possession of this crown shall joyn in communion with the Church of England as by law established …”). Thus adherents of all other religions are excluded, not just Catholics, although Catholics are specifically excluded.

As already noted, it was a key aim of the English Government that a Union would preserve and secure the settlement of the succession as set out in the 1700 Act. Article II of the Articles of Union reiterated and confirmed the provisions of the Act of Settlement. In return, the position of the established protestant presbyterian Church of Scotland was safeguarded in the Act of Union with Scotland 1706.(15)

The current position

The current law on the succession is neatly summarised in the British Monarchy website itself (which also lists the current order of succession):

Succession
The basis for the succession was determined in the constitutional developments of the 17th century, which culminated in the Bill of Rights (1689) and the Act of Settlement (1701). When James II fled the country in 1688, Parliament held that he had 'abdicated the government' and that the throne was vacant. The throne was then offered, not to James's young son, but to his daughter Mary and her husband William of Orange, as joint rulers. It therefore came to be established not only that the Sovereign rules through Parliament, but that the succession to the throne can be regulated by Parliament, and that a Sovereign can be deprived of his title through misgovernment.

The succession to the throne is regulated not only through descent, but also by statute; the Act of Settlement confirmed that it was for Parliament to determine the title to the throne. The Act laid down that only Protestant descendants of Princess Sophia - the Electress of Hanover and granddaughter of James I - are eligible to succeed. Subsequent Acts have confirmed this.

Parliament, under the Bill of Rights and the Act of Settlement, also laid down various conditions which the Sovereign must meet. A Roman Catholic is specifically excluded from succession to the throne; nor may the Sovereign marry a Roman Catholic. The Sovereign must, in addition, be in communion with the Church of England and must swear to preserve the established Church of England and the established Church of Scotland. The Sovereign must also promise to uphold the Protestant succession.

Succession to the throne is based on the principle of male primogeniture, according to which male heirs take precedence over daughters and the right of succession belongs to the eldest son. Daughters take precedence over the Sovereign's brothers. When a daughter succeeds, she becomes Queen Regnant and has the same powers as a king. Where a Sovereign has no children, the succession then lies with the Sovereign's eldest surviving brother and his children (sons, then daughters), as when William IV was succeeded by his niece Victoria. If a Sovereign has no brothers, or if those brothers have no children, then the line of succession passes to the Sovereign's sister(s) in age order, as when Edward VI was succeeded by his half-sisters Mary and Elizabeth.

The religious aspect of the succession is reinforced elsewhere in the statute book.An example is the Accession Declaration Act 1910 (c.29):

1 Alteration of form of accession declaration

The declaration to be made, subscribed, and audibly repeated by the Sovereign under section one of the Bill of Rights and section two of the Act of Settlement shall be that set out in the Schedule to this Act instead of that referred to in the said sections…..

SCHEDULE
I (here insert the name of the Sovereign) do solemnly and sincerely in the presence of God profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law.


III. RECENT DEVELOPMENTS

Action in the Scottish Parliament

Under paragraph 1(a) of schedule 5 of the Scotland Act 1998, “the Crown, including succession to the Crown and a regency” are reserved matters. They cannot be validly legislated upon by the Parliament, as reserved matters are outwith its competence (s29(2)(b)). (16) However, there is nothing in the devolution legislation which prevents the Parliament from debating a reserved matter.(17)

Michael Russell lodged a motion, which first appeared in the Business Bulletin on 2 September (no. 46/1999), and, to date (13 December), it has attracted 76 further signatures. It is the motion which is to be debated on 16 December:

S1M-117 Michael Russell: Act of Settlement—That the Parliament believes that the discrimination contained in the Act of Settlement has no place in our modern society, expresses its wish that those discriminatory aspects of the Act be repealed, and affirms its view that Scottish society must not disbar participation in any aspect of our national life on the grounds of religion.

The issue has been considered by the Equal Opportunities Committee. It was briefly, though not substantively, mentioned in its 2 November meeting; (18) at its next meeting, as a matter to be looked at by its race issues group (whose reporter is Michael McMahon); (19) and as a brief discussion at its meeting on 23 November. (20)

On 8 November David McLetchie wrote to the First Minister, asking him if he supported amendment of the relevant provisions of the Act of Settlement, and promising his party’s support in the Parliament for action by his colleagues in the House of Lords (on which see below). (21)

Action in the UK Parliament and Government

Roseanna Cunningham tabled an early day motion in the House of Commons in November, in terms similar to the motion in the Parliament: (22)

"That this House believes that the discrimination contained in the Act of Settlement has no place in modern society; expresses its wish that those discriminatory aspects of the Act be repealed; and affirms its view that society must not disbar participation in any aspect of national life on the grounds of religion."

She said: (23)

"The pressure for change to the Act of Settlement has been focussed in the Scottish Parliament, and some 40 parliamentarians have signed up to my colleague Michael Russell's motion. The drive for change in Scotland is leading the UK agenda, and that is a significant achievement for the Scottish Parliament. The purpose of my House of Commons motion is to enable Westminster parliamentarians to support this initiative, and add to the pressure for this discrimination to be repealed. I am delighted that Labour MP Jeremy Corbyn has signed my motion, and I look forward to MPs of all parties coming on board. Downing Street's behaviour over the Act of Settlement has been deplorable – giving out conflicting and contradictory messages from day to day. Both the Scottish Parliament and Westminster motions can put clarity and the demand for change in place of the Government's confusion."

The House of Lords, on Thursday 2 December, considered a motion for an Address seeking the Queen’s consent to the introduction of a private member’s Bill amending the law of the succession to the Crown. The motion was moved formally by Lord Forsyth of Drumlean, (24) but was opposed by Lord St John of Fawsley, and the motion was disagreed to by 65-14. Lord St John’s brief speech highlights the legal and constitutional complexities of this whole issue:(25) ...

...In a matter of such importance the wording is all-important. It refers to removing a bar against succession to the Throne of a person who is married to a person who is not a Protestant. No such bar exists; the Act of Settlement 1700 forbids succession to the Throne of anyone who marries a papist. I do not object to the word "papist", but regard it as a term of honour. That is the wording, and the wording is vital. The Act says that if one marries a papist one is out of the royal stakes; but if one is married to a papist--that is, if he or she becomes a Catholic after marriage--there is no bar. That is contradicted by the Address. It is not an academic legal point. The Duke of Kent is married to a lady who, some years after the marriage, became a Roman Catholic. The Duke in no way lost his right of succession to the Throne. The Palace made it plain that that was the situation at the time. The Duke and his children in no way are deprived of their rights of succession. Therefore, I submit that the wording of the Address is fatally flawed.

My second point is that this is a matter of extreme complexity. The status of the Sovereign's Coronation Oath, made in 1952, is brought into the issue. The Address involves the amending of not only one statute, but of many, including the Act of Union with Scotland of 1706. Under the Statute of Westminster 1931, if the Address were to lead to legislation, that legislation would have to be approved by all the relevant Commonwealth governments and by their parliaments. Therefore I ask your Lordships to draw the conclusion that surely such a major matter is best set in train--and should be set in train--by the Government and Opposition parties officially acting together and not by a single Peer ….


IV. THE FUTURE
The present UK Government is making a number of significant changes to various aspects of the UK Constitution, from devolution to the House of Lords. To date, it has not sought to address directly the basic position of the monarchy itself, perhaps because that brings together many fundamental and sensitive issues, such as religion, especially the constitutional position of the established churches, (26) and the nature of citizenship. Issues relating to the Crown and the monarchy themselves, including its finances and taxation, and questions relating to the succession (arising, in part, due to the circumstances of members of the royal family), have surfaced in the last couple of decades in various ways. (27)

The question of the succession to the Crown, encompassing the Act of Settlement and related legislation, is one aspect of the wider question of religious disabilities in UK law. Generally speaking, there are few remaining disabilities on Roman Catholics or on those of other non-protestant faiths. (28) The Stair Encyclopaedia of Laws of Scotland (29) provides a good summary of the disabilities of the Catholic Church and its members.

There are sometimes suggestions that some of the highest offices of state, such as those of Prime Minister or Lord Chancellor, are subject to such disabilities. Questions about the premiership arose because of that office’s direct practical involvement in ecclesiastical appointments in the Church of England. Some legislation still prohibits Jews or Roman Catholics from advising the Crown on such appointments. Presumably, if such a situation ever arose, alternative administrative arrangements would be made to avoid breach of the law.(30) Doubt about the office of Lord Chancellor appears to have been settled by the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974.

During a BBC TV Question Time programme on 4 November, the Scottish Secretary said: (31)

John Reid: I'm a Catholic. Amongst all the priorities in government should we give time to eight pieces of legislation and possibly the disestablishment of the Church of England? James Douglas Hamilton, who raised this, was minister in the Conservative government for 18 years. But it was not one of his priorities. People in my constituency are not talking about this but about the health service, education, jobs, and poverty…..

At Scottish Questions on 9 November, he expanded on these remarks: (32)

Mrs. Rosemary McKenna (Cumbernauld and Kilsyth): … Will my right hon. Friend ensure that when he is representing those interests, especially in matters that touch on deeply held religious beliefs and convictions, he does so with great sensitivity and careful consideration?

Dr. Reid: I can give that guarantee; I would not do otherwise, because of my respect for all the people in Scotland. I take it that my hon. Friend is referring to the Act of Settlement 1700, about which there has been much discussion. As a Roman Catholic myself--I am informed that, to the Government's credit, I am the first Roman Catholic to hold the office of Secretary of State for Scotland--I am only too well aware of the deep feelings and passions that surround the issue. I recognise that the discrimination inherent in the Act of Settlement is offensive to many people in Scotland and perhaps more widely. The fact that it has little practical significance does not negate its symbolic significance.

In the past I have merely pointed out that we have a heavy legislative programme based on our manifesto, which was endorsed by the people of this country and which we are pledged to implement. Neither the Prime Minister nor I have said that changes cannot be considered in future. Everyone in the House should be aware that too often in the past our country has been scarred by religious divisions. We all have a responsibility to handle the issue in a sensitive and considered fashion.

It does not help when those who have sat in this House, sometimes for years, and some as Ministers, and who have failed even to raise the matter, now parade themselves as the exclusive champions of non- discrimination. This is not an issue in which party advantage should or will be gained, and the Scottish people will not thank any party that attempts to use it in that way.

In a reply on 23 October to a letter on the subject from Lord James Douglas-Hamilton, the Prime Minister set out the UK Government’s position: (33)

As you know, the Act of Settlement excludes from the Throne a person who is, or who marries, a Roman Catholic. The Act is a significant element in a political and constitutional settlement with complex historical roots which continues, 300 years later, to have wide-ranging constitutional implications for the United Kingdom, and indeed for the Commonwealth as a whole. The central point of the Act of Settlement is that the Established Church in England is the Church of England, of which the Sovereign is Supreme Governor. Therefore the Act does not prevent members of the Royal Family from becoming or marrying Roman Catholics but does remove them from the line of succession.

The Government is conscious that this is a subject on which both Catholics and non-Catholics have deeply held views which need to be treated with respect.

The Government has, however, no plans to repeal the Act; and any attempt to amend the Act of Settlement would in any case be complex in the extreme, as at least eight other pieces of legislation, some prior to the Acts of Union with Scotland and with Ireland, would also have to be amended or repealed. Moreover, in order to avoid any disputes over the Succession; identical legislation would need to be passed by at least fifteen other independent monarchies within the Commonwealth.

More recently there has been some media speculation as to the policy of UK Ministers, including reports that the UK Government would support, in some way, any private Member’s bill on the subject, or establish a Royal Commission.(34) A Downing Street spokesman was quoted as saying: "As far as we are concerned, there is no basis in fact for this. The position has not changed." (35) During the second reading of Lord Archer of Weston-Super-Mare’s bill in 1998 to remove the discrimination against women in the rules of succession to the Crown, the junior Home Office minister, Lord Williams of Mostyn (now the Attorney General) said: (36)

I should make it clear straight away that before reaching a view the Government of course consulted the Queen. Her Majesty had no objection to the Government's view that in determining the line of succession to the throne daughters and sons should be treated in the same way. There can be no real reason for not giving equal treatment to men and women in this respect. ….

We do not think that, whatever its merits, a Private Peer's Bill is an appropriate vehicle for so important a change as the one we have been debating. A major constitutional measure of this sort ought properly to be the subject of a government Bill. We shall be considering how best to carry this forward within government and in consultation with the Royal Family.

Under the Statute of Westminster 1931, before any alteration in the law touching the succession to the Throne can take effect the assent of all those countries of which Her Majesty is Queen is required. The United Kingdom cannot act unilaterally. That is another good reason for introducing a government measure. It would seem very odd to the legislatures of the 15 Realms to be invited to consider assenting to legislation instigated by an individual Member of your Lordships' House.

I cannot tell noble Lords today precisely how we shall be taking this forward. A number of suggestions have been made today for further changes in the law governing succession to the Throne. We shall of course look at these--in consultation of course with the Royal Family--but the only issue on which a decision has been taken is that which is the subject of the noble Lord's Bill: equality of treatment for men and women in relation to the succession to the Throne.

I do not think that I need say more at this stage. We have had our debate and I am grateful to all those noble Lords who have participated in it. I welcome the support which has been expressed for the principle behind the noble Lord's Bill and I trust that he will understand why we cannot support the Bill itself.

Following his letter from the Prime Minister, it is understood that Lord James Douglas-Hamilton consulted the churches and faiths in Scotland, asking for their views by the end of the year. He is believed to have received at least 9 responses so far, 8 of which express opposition to the perceived discrimination contained in the provisions of the Act of Settlement, while the ninth was concerned with the complexities involved. None of the responses so far received appeared to defend the terms of the legislation. It is understood that Lord James intends to make these responses received thus far available to fellow MSPs by giving a set of them to the Parliament’s Reference Centre on 15 December, the day before the scheduled debate.

The Church of Scotland’s position has been set out as follows: (37)

The Church of Scotland speaks through the General Assembly. It is recognised that issues will arise between meetings of the Assembly on which it is appropriate for the Church to comment through one of the Committees of the Assembly. However, in anything that it says or does, such a Committee remains answerable to the General Assembly which may endorse, vary or repudiate what has been said or done.

It is the view of the Legal Questions Committee that the discriminatory provisions of the Act of Settlement have no place in our contemporary society. The Committee’s advice would be that the General Assembly should not oppose any review of the Act of Settlement within the context of the process of constitutional reform upon which the Government is currently engaged. Such a review should lead both to the removal of the discriminatory provisions and the identifying of solutions to the constitutional questions which could then arise.

Although such constitutional questions would not bear directly on the Church of Scotland, we do recognise the potential implications for the Church of England of whom the Sovereign is supreme governor. While the relationship with the crown and the Church of Scotland is very different, it is a relationship which the Church values. It would be a matter of regret to the Church were a Roman Catholic Sovereign to be put in the position of denying Church of Scotland orders and of being prevented from receiving communion within the Church of Scotland or, indeed, within other protestant and reformed churches within the United Kingdom.

Cardinal Winning, on behalf of Roman Catholic Church in Scotland, issued the following statement on 4 December:

I understand that more than half the MSPs on the Mound have signed a motion urging an amendment to the Act of Settlement. The Royal Family has not signalled any opposition to the proposal. It is sad that less than 80 peers could even be bothered to vote on an issue which crudely discriminates against Catholics as such.

As to the suggestion that a Royal Commission might be set up to consider the case, I can see no reason for such a step. A Royal Commission’s function is in solving difficult ethical or legal problems where there is no consensus - areas like abortion law or proposals for the legalisation of certain drugs come to mind.

On this issue there is very broad consensus, across party and religious lines. The Act of Settlement contains nasty, outdated and embarrassing language which should have no place in modern Britain. It is an anachronism and it should be amended.

What is needed is a clear statement of political will, not a royal commission, to set about tackling the problem.


V. THE STATUTE OF WESTMINSTER 1931

As already noted, any legislative change to the succession may well be subject to the involvement of Commonwealth Parliaments. The Statute of Westminster was enacted in 1931 (22 Geo V c.22), in part, to put into law what had developed into constitutional convention (especially at Imperial Conferences in the previous decade) concerning the relationship between the UK and the various selfgoverning Dominions of the Commonwealth and Empire. Its preamble included the following:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol to the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, 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:

The interpretation of the 1931 Act, and its possible application to any future legislative proposals affecting the succession, is beyond the scope of this Paper.(38) It is interesting to note, however, the following comment from the Minister replying to the second reading debate on the Succession to the Crown Bill, a measure introduced as a private Member’s Bill by Lord Archer of Weston-Super-Mare, in the House of Lords on 27 February 1998. The then junior Home Office minister, Lord Williams of Mostyn (now the Attorney General) said: (39)

Under the Statute of Westminster 1931, before any alteration in the law touching the succession to the Throne can take effect the assent of all those countries of which Her Majesty is Queen is required. The United Kingdom cannot act unilaterally. That is another good reason for introducing a government measure. It would seem very odd to the legislatures of the 15 Realms to be invited to consider assenting to legislation instigated by an individual Member of your Lordships' House.

This Government approach to the 1931 Act could well be relevant to its attitude (as discussed in the previous section of this Paper) to any future private Member’s Bill on this or related subjects (perhaps in either House at Westminster), such as that recently proposed by Lord Forsyth of Drumlean.


APPENDIX
• Text of the Act of Settlement:

Preamble
Whereas in the first year of the reign of your Majesty and of our late most gracious soverign lady Queen Mary (of blessed memory) an Act of Parliament was made intituled (An Act for declaring the rights and liberties of the subject and for setling the succession of the crown) … it was thereby further enacted that all and every person and persons that then were or afterwards should be reconciled to or shall hold communion with the see or church of Rome or should professe the popish religion or marry a papist should be excluded and are by that Act made for ever incapable to inherit possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same or to have use or exercise any regall power authority or jurisdiction within the same and in all and every such case and cases the people of these realms shall be and are thereby absolved of their allegiance and that the said crown and government shall from time to time descend to and be enjoyed by such person or persons being protestants as should have inherited and enjoyed the same in case the said person or persons so reconciled holding communion professing or marrying as aforesaid were naturally dead …. And your Majesties said subjects having daily experience of your royall care and concern for the present and future welfare of these kingdoms and particularly recommending from your throne a further provision to be made for the succession of the crown in the protestant line for the happiness of the nation and the security of our religion and it being absolutely necessary for the safety peace and quiet of this realm to obviate all doubts and contentions in the same by reason of any pretended titles to the crown and to maintain a certainty in the succession thereof to which your subjects may safely have recourse for their protection in case the limitations in the said recited Act should determine Therefore for a further provision of the succession of the crown in the protestant line …

1 The Princess Sophia, Electress and Duchess dowager of Hanover, daughter of the late Queen of Bohemia, daughter of King James the First, to inherit after the King and the Princess Anne, in default of issue of the said princess and his Majesty, respectively; and the heirs of her body, being protestants

The most excellent Princess Sophia Electress and Dutchess dowager of Hanover daughter of the most excellent Princess Elizabeth late Queen of Bohemia daughter of our late sovereign lord King James the First of happy memory be and is hereby declared to be the next in succession in the protestant line to the imperiall crown and dignity of the said realms of England France and Ireland with the dominions and territories thereunto belonging after his Majesty and the Princess Ann of Denmark and in default of issue of the said Princess Ann and of his Majesty respectively and that from and after the deceases of his said Majesty our now soveriegn lord and of her royall Highness the Princess Ann of Denmark and for default of issue of the said Princess Ann and of his Majesty respectively the crown and regall government of the said kingdoms of England France and Ireland and of the dominions thereunto belonging with the royall state and dignity of the said realms and all honours stiles titles regalities prerogatives powers jurisdictions and authorities to the same belonging and appertaining shall be remain and continue to the said most excellent Princess Sophia and the heirs of her body being protestants And thereunto the said lords spirituall and temporall and commons shall and will in the name of all the people of this realm most humbly and faithfully submitt themselves their heirs and posterities and do faithfully promise that after the deceases of his Majesty and her royall Highness and the failure of the heirs of their respective bodies to stand to maintain and defend the said Princess Sophia and the heirs of her body being protestants according to the limitation and succession of the crown in this Act specified and contained to the utmost of their powers with their lives and estates against all persons whatsoever that shall attempt any thing to the contrary.

2 The persons inheritable by this Act, holding communion with the church of Rome, incapacitated as by the former Act; to take the oath at their coronation, according to Stat 1, W & M c 6

Provided always and it is hereby enacted that all and every person and persons who shall or may take or inherit the said crown by vertue of the limitation of this present Act and is are or shall be reconciled to or shall hold communion with the see or church of Rome or shall profess the popish religion or shall marry a papist shall be subject to such incapacities as in such case or cases are by the said recited Act provided enacted and established. And that every King and Queen of this realm who shall come to and succeed in the imperiall crown of this kingdom by vertue of this Act shall have the coronation oath administered to him her or them at their respective coronations according to the Act of Parliament made in the first year of the reign of his Majesty and the said late Queen Mary intituled An Act for establishing the coronation oath and shall make subscribe and repeat the declaration in the Act first above recited mentioned or referred to in the manner and form thereby prescribed.

3 Further provisions for securing the religions, laws, and liberties of these realms

And whereas it is requisite and necessary that some further provision be made for securing our religion laws and liberties from and after the death of his Majesty and the Princess Ann of Denmark and in default of issue of the body of the said princess and of his Majesty respectively Be it enacted by the Kings most excellent Majesty by and with the advice and consent of the lords spirituall and temporall and commons in Parliament and by the authority of the same

That whosoever shall hereafter come to the possession of this crown shall joyn in communion with the Church of England as by law established ……

The earlier statute referred to in the preamble of the 1700 Act is the Bill of Rights 1689. The statute referred to in s2 of the 1700 Act is the Coronation Oath Act 1688, s3 of which contains the form of administration of the coronation oath, including the following:

ARCH BISHOP OR BISHOP: Will you to the utmost of your power maintaine the laws of God the true profession of the Gospell and the Protestant reformed religion established by law? And will you preserve unto the bishops and clergy of this realme and to the churches committed to their charge all such rights and priviledges as by law doe or shall appertaine unto them or any of them.
KING AND QUEENE: All this I promise to doe.

• Relevant provisions of the Treaty of Union:

Article II Succession to the monarchy
That the succession to the monarchy of the United Kingdom of Great Britain and of the dominion thereto belonging after her most sacred Majesty and in default of issue of her Majesty be remain and continue to the most excellent Princess Sophia Electoress and Dutchess dowager of Hanover and the heirs of her body being protestants upon whom the crown of England is settled by an Act of Parliament made in England in the twelfth year of the reign of his late Majesty King William the Third intituled An Act for the further limitation of the crown and better securing the right and liberties of the subject And that all papists and persons marrying papists shall be excluded from and for ever incapable to inherit possess or enjoy the imperial crown of Great Britain and the dominions thereunto belonging or any part thereof and in every such case the crown and government shall from time to time descend to and be enjoyed by such person being a protestant as should have inherited and enjoyed the same in case such papist or person marrying a papist was naturally dead according to the provision for the descent of the crown of England made by another Act of Parliament in England in the first year of the reign of their late Majesties King William and Queen Mary intituled An Act declaring the rights and liberties of the subject and settling the succession of the crown.

Article XXV: Subjects not liable to oath, test, or subscription, inconsistent with the Presbyterian Church government; successor to swear to maintain the said settlement of religion- And further her Majesty with advice aforesaid expressly declares and statutes that none of the subjects of this kingdom shall be liable to put all and every one of them for ever free of any oath test or subscription within this kingdom contrary, to or inconsistent with the aforesaid true Protestant religion and Presbyterian Church government worship and disipline as above established and that the same within the bounds of this Church and kingdom shall never be imposed upon or required of them in any sort And lastly that after the decrease of her present Majesty (whom God long preserve) the soveraign succeeding to her in the royal government of the kingdom of Great Britain shall in all time coming at his or her accession to the crown swear and subscribe that they shall inviolably maintain and preserve the foresaid settlement of the true Protestant religion with the government worship discipline right and privileges of this Church as above established by the laws of this kingdom in prosecution of the claim of right.

• The relevant portion of the Bill of Rights reads as follows:

And whereas it hath beene found by experience that it is inconsistent with the safety and welfaire of this protestant kingdome to be governed by a popish prince or by any King or Queene marrying a papist the said lords spirituall and temporall and commons doe further pray that it may be enacted that all and every person and persons that is are or shall be reconciled to or shall hold communion with the see or church of Rome or shall professe the popish religion or shall marry a papist shall be excluded and be for ever uncapeable to inherit possesse or enjoy the crowne and government of this realme and Ireland and the dominions thereunto belonging or any part of the same or to have use or exercise any regall power authoritie or jurisdiction within the same [And in all and every such case or cases the people of these realmes shall be and are hereby absolved of their allegiance.] and the said crowne and government shall from time to time descend to and be enjoyed by such person or persons being protestants as should have inherited and enjoyed the same in case the said person or persons soe reconciled holding communion or professing or marrying as aforesaid were naturally dead [And that every King and Queene of this realme who at any time hereafter shall come to and succeede in the imperiall crowne of this kingdome shall on the first day of the meeting of the first Parlyament next after his or her comeing to the crowne sitting in his or her throne in the House of Peeres in the presence of the lords and commons therein assembled or at his or her coronation before such person or persons who shall administer the coronation oath to him or her at the time of his or her takeing the said oath (which shall first happen) make subscribe and audibly repeate the declaration mentioned in the Statute made in the thirtyeth yeare of the raigne of King Charles the Second entituled An Act for the more effectuall preserveing the Kings person and government by disableing papists from sitting in either House of Parlyament But if it shall happen that such King or Queene upon his or her succession to the crowne of this realme shall be under the age of twelve yeares then every such King or Queene shall make subscribe and audibly repeate the said declaration at his or her coronation or the first day of the meeting of the first Parlyament as aforesaid which shall first happen after such King or Queene shall have attained the said age of twelve year3] All which their Majestyes are contented and pleased shall be declared enacted and established by authoritie of this present Parliament and shall stand remaine and be the law of this realme for ever And the same are by their said Majesties by and with the advice and consent of the lords spirituall and temporall and commons in Parlyament assembled and by the authoritie of the same declared enacted and established accordingly


Research Papers are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.


1 The date of this statute is sometimes given as 1701
2 The author of a leading work on the Church of England describes these as being in “fiercely unecumenical language”: Norman Doe, The legal framework of the Church of England, 1996, p9
3 Following Edward VIII’s decision to abdicate in 1936, s1(2) of His Majesty’s Declaration of Abdication Act 1936 provided that “His Majesty, His issue, if any, and the descendants of that issue, shall not after His Majesty’s abdication have any right, title or interest in or to the succession to the Throne, and section one of
the Act of Settlement shall be construed accordingly.”
4 See, further, the relevant pages of the Buckingham Palace website
5 Information from Buckingham Palace press Office, December 1999
6 On Prince Michael of Kent, see the relevant page of the Buckingham Palace website
7 Professor Walker wrote, of the 1700 Act: “This Act, to the indignation of many Scots, had been passed without consultation with Scotland and arrogantly assumed to legislate for Scotland also, unless the personal union of the monarchies was later dissolved” (D M Walker, A legal history of Scotland, vol 5, 1998, p101)
8 There was a clear risk in Scottish policy that the assertions of sovereignty over the succession could conflict with the desire to maintain the protestant line, especially if it entailed a Stuart succession.
9 F Lyall, Of presbyters and kings: church and state in the law of Scotland, 1980, p16
10 See, for example, the Bill of Rights [“And whereas it has been found by experience that it is inconsistent with the safety and welfare of the protestant kingdom to be governed by a popish prince or by any King or Queene marrying a papist..”] and the Act of Settlement [“the succession of the crown in the protestant line for the happiness of the nation and the security of our religion”]
11 Commons Journal 28 January 1688
12 Coronation Oath Act 1688 (1 Will & Mar chap 6), s 3
13 Note the different territorial extents of these specific oaths
14 Act of Settlement 1700 (12 & 13 Will 3 chap 2), in long title
15 The present Queen made the oath required by Article XXV to preserve the Church of Scotland at a meeting of the Privy Council immediately after her accession.
16 In addition, relevant issues of religious equality relating to the Act of Settlement may also within Section L2 of sch 5 on equal opportunities, as ‘equal opportunities’ is defined in the interpretation provision of Head L of sch 5 as “the prevention, elimination or regulation between persons on grounds of ... other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions”
17 The Memorandum of Understanding between the UK and the devolved governments (which was endorsed by the Parliament on 7 October following a debate) included the following: “15. The devolved legislatures will be entitled to debate non-devolved matters, but the devolved executives will encourage each devolved legislature to bear in mind the responsibility of the UK Parliament in these matters.”
18 6th meeting, col 146, 2.11.99. See SNP PN 2.11.99
19 7th meeting, cols 164-9, 16.11.99.
20 8th meeting 23.11.99 cols 200-2
21 Conservative Party PN 8.11.99
22 EDM 985, 1998-99. It had attracted 14 signatures by the end of the session later that month.
23 SNP PN 8.11.99 . See also SNP PN 7.11.99, Downing Street Rejecting Act Of Settlement Change "Chaos And Confusion Add Insult To Injury"
24 Lord Forsyth had declared his opposition to the relevant provisions of the Act of Settlement in a speech in January 1999: “Forsyth calls for monarch's freedom to marry”, BBC News, 26.1.99
25 HL Deb vol 607 col 918, 2.12.99
26 The theological and constitutional strands of the establishment debate (especially any perceived differences in the relationship between Church and State, or Church and Sovereign, north and south of the border) are beyond the scope of this Paper. See Stair Encyclopaedia, vol 7 para 707, and generally V Bogdanor, The monarchy and the constitution, 1995, chap 9
27 Which may bring into play, for example, the provisions of the Royal Marriages Act 1772. See, as an example of examination of the more general issues, R Brazier “The constitutional position of the Prince of Wales”, 1995 Public Law 401-416
28 For example, a Catholic cannot be a Regent: Roman Catholic Relief Act 1829, s12. A Regent “shall not have power to assent to any Bill for changing the order of succession to the Crown or for repealing or altering an Act of the fifth year of the reign of Queen Anne made in Scotland entitled ‘An Act for Securing the Protestant Religion and Presbyterian Church Government.’”: Regency Act 1937 s4(2)
29 vol 3, paras 1659-62. For the earlier law, see the Encyclopaedia of the Laws of Scotland, 1949, pp54-58.
30 There have been attempts at legislation to regularise the position, but none has been successful. See HL Deb, 27.3.98, col 1455
31 BBC1 Question Time, 4.11.99, BBC News On-line transcript
32 HC Deb vol 337 cols 865-6, 9.11.99
33 Transcript of letter, 23.10.99. See also “Move to end royal Catholic ban”, BBC News, 7.11.99
34 See, for example, “Blair set to establish inquiry into Act of Settlement”, Scotland on Sunday, 20.11.99, and related editorial, “No stalling on Act”.
35 “Catholic monarchy ban 'to continue'”, BBC News, 20.11.99
36 HL Deb cols 916-7, 28.2.98. There have been other unsuccessful attempts at Westminster to legislate on the succession, such as the Succession to the Crown Bill 1981-82 (Michael English), Constitutional Reform Bill 1990-91 (Simon Hughes), Constitutional Reform Bill 1995-96 (Tony Benn).
37 Information from the Church of Scotland, December 1999
38 Similar considerations applied in the style adopted by the present Queen in 1952. See the Royal Titles Act 1953, and MacCormick v Lord Advocate 1953 SC 396. See also the preamble to His Majesty’s Declaration of Abdication Act 1936: “…And whereas, following upon the communication to His Dominions of His Majesty’s said declaration and desire, the Dominion of Canada pursuant to the provisions of section four of the Statute of Westminster 1931 has requested and consented to the enactment of this Act, and the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa have assented thereto.”
39 HL Deb vol 307 col 917, 27.2.98

Information about Document 1245

Scottish Parliament: Research Briefings: RP 99-17 The Act of Settlement