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Main article: English Reformation

The English Reformation was the series of events in 16th century England by which the Church of England broke away from the authority of the Pope and the Roman Catholic Church. Caused by factors such as the decline of feudalism and the rise of nationalism, these events were also part of the European Protestant Reformation, a religious and political movement which affected the practice of Christianity across the whole of Europe.

The English Protestant Reformation was exacted by the State with English post-Reformation oaths. The oaths of royal supremacy in 1534 and 1589, involved Acts of Supremacy, Oath of Supremacy and the Submission of the Clergy. Similar oaths included an Oath of Abjuration under the Commonwealth in 1643 and Test Oath of 1672 and 1678. The 1774 Irish Oath Act and 1829 Catholic Emancipation Act eventually led to the repeal of all Statutory Oaths against Catholicism.

Roman Catholic Relief Bills were attempted steps of legislation in the UK towards Catholic Emancipation. They sought to remove the legal tests and impositions against British and Irish Catholics, brought about by Henry VIII's state Protestant Reformation, and numerous subsequent laws. Such Bills were brought forward from the end of the 18th century onwards, but encountered political opposition, especially during the Napoleonic Wars. Failing as legislation, they did not become Acts of Parliament, with the exception of the 1778 Act and the Catholic Relief Act 1791. In the end the legal position of Catholics was transformed by the Catholic Relief Act 1829. In 1867, during the reign of Victoria, these were repealed [1]. In 1871 the Promissory Oaths Bill removed all the old Oaths of Allegiance [2]. In 1901 strong resolutions were passed against its retention by the Canadian House of Commons, emphasized by similar petitions from the hierarchies of Australia. After the death of Edward VII, a repealing act was brought in during the reign of George V. This Bill was carried through both Houses by large majorities, and received Royal Assent on 3 August 1910, thus removing the last anti-Catholic oath or declaration from the English Constitution.



The Bill of Rights 1688 and the Coronation Oath Act 1688, the Act of Settlement 1700, the Union with Scotland Act 1706, the Sophia Naturalization Act 1705 and Princess Sophia's Precedence Act 1711, the Royal Marriages Act 1772, the Union with Ireland Act 1800, the Accession Declaration Act 1910 and the Regency Act 1937.

Roman Catholic relief bills and Catholic Emancipation

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Clarendon Code

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The four drastic penal laws collectively known as Clarendon Code are named after Charles II's chief minister Edward Hyde, 1st Earl of Clarendon.[3] These included:

  • Corporation Act (1661): All municipal officials to take Anglican communion, and formally reject the Solemn League and Covenant of 1643. (to exclude nonconformists from civil, military or public office, and prevented them from being awarded degrees by Cambridge and Oxford universities.Rescinded 1828.)
  • Act of Uniformity (1662): Book of Common Prayer compulsory in religious service. Over two thousand clergy refused to comply and so were forced to resign their livings (the Great Ejection). (Modified by the Act of Uniformity Amendment Act, of 1872.)
  • Conventicle Act (1664): Forbade conventicles (meetings for unauthorized worship) of more than five people not members of same household. (To prevent dissenting religious groups from meeting.)
  • Five Mile Act (1665): Forbade nonconformist ministers from coming within five miles of incorporated towns or place of their former livings. Forbidden to teach in schools. (Mostly repealed by 1689, but not formally abolished until 1812.)

Parliamentary Archives HL/PO/PU/1/1688/1W

Under Oliver Cromwell in the 1650s, England was governed for the first time under a formal Constitution, the Instrument of Government. When he died in 1658 his son Richard faced a demanded recall of original Members of Parliament, dismissed in 1653. This re-established a Royalist majority. Following elections, the government accepted the terms of Charles II and the monarchy was restored in May 1660. The Scots had already crowned Charles as their King in 1650. Charles II was treated as having succeeded upon his father's death so that all Acts passed since 1649 were null and void.

Although Charles II was Anglican, he married a Catholic. His brother, the future James II, was openly Catholic. Parliament tried to pass an Exclusion Bill to stop Catholics inheriting the throne, but Charles II barred it. James II used his prerogative to issue a Declaration of Indulgence, restoring all rights to Catholics. With the birth of a Catholic heir in June 1688, (the 'Immortal Seven') sent a secret invitation offering the throne to William of Orange in the Netherlands, who had married James's daughter Mary. When William landed in England, James fled to France and then Ireland, where he remained King until defeated at the Battle of the Boyne in July 1690.

In England, a provisional Parliament issued a Declaration of Rights in 1689 condemning the actions of James II as "contrary to the known laws and statutes and freedom of this realm." The Declaration was accepted by William and Mary, and ratified by a formal Parliament in 1689 as a Bill of Rights. Scottish Parliament approved it as Claim of Right.


James II's flight in 1688 had given Parliament the opportunity to alter the succession to the English throne and to elect a King. Having used this power with William and Mary, Parliament was not hesitant in exercising its influence over the succession again.

The 1689 Bill of Rights legislated that succession would pass first to any children of James II's two daughters Mary and Anne, before going to any children born to William by a second marriage. It also stated Catholics, or those married to Catholics, could not succeed to the throne.

There was little concern in 1689, until Queen Mary died in 1694 without any children. This turned to great concern when the Duke of Gloucester, the only surviving child of Princess Anne, died aged 11 in 1700. This left Anne's half-brother James, the infant whose birth in June 1688 had spurred William of Orange to invade, Anne's successor. In June 1701 Parliament passed the Act of Settlement. It confirmed the provision of the Bill of Rights that no Catholic or person with a Catholic spouse could sit on the throne.

The Act also legislated that, to preserve the Protestant Succession in case neither Anne nor William had any more children, the Crown would pass at Anne's death to a Protestant relation. This was Sophia, the Electress of Hanover in Germany, the granddaughter of James I by his daughter Elizabeth, and first cousin to Charles II and James II. Sophia's son George I succeeded to the throne upon Anne's death in 1714, and his descendants, including the current Queen, have ruled Britain ever since - all because of a decision of Parliament in 1701 to alter the succession and to choose its own monarch.

NOTES

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Five monarchies have already eliminated male dominance and introduced equality. In Sweden, after the retroactive approval of equal succession rights in 1979, the older Victoria became Crown Princess over her younger brother, Prince Carl Phillip, and she will be the future Queen of Sweden. In the Netherlands, equal succession was adopted in 1983 under the reign of Queen Beatrix. In Norway, the adoption of equal succession rights in 1990 will not allow Princess Märtha Louise to be Queen over her younger brother, but the rights will apply to his children. In Belgium, a system that excluded females entirely from succeeding to the throne was replaced in 1991, allowing Princess Elisabeth to be second in line to the throne. The Danish public approved a referendum in 2009 whereby women could succeed equally to the throne. Sex discrimination has been illegal in the United Kingdom since 1975. 


Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill 2008-09

Sponsor: Dr Evan Harris

This Bill was on the Order Paper 16 October, to resume the adjourned Second Reading from 27 March, but there was not enough time for debate on that day. This Bill has since been dropped by its sponsor Dr Evan Harris. Summary of the Bill The line of succession for the UK monarchy follows the hereditary principle with certain restrictions. The Crown passes to males ahead of females, and the monarch can neither be nor marry a Roman Catholic. Any heir that marries a Catholic is removed from the line of succession. Key areas • removes the religious requirement on the monarch's spouse and the preference for men in the line of succession. It would have no effect on the religion of the monarch, who would still be required to be in communion with the Church of England. • repeals the Royal Marriages Act 1772, which places certain restrictions on members of the Royal Family marrying without consent of the monarch. 27 Mar 2009 : Column 556 Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill The Comptroller of Her Majesty's Household (Mr. John Spellar): I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill. Second Reading 9.49 am Dr. Evan Harris (Oxford, West and Abingdon) (LD): I beg to move, That the Bill be now read a Second time. It is first appropriate for the House to offer its thanks to the Queen for her permission to hold this debate. It clearly indicates that, at my request, the Government have been in discussion with Buckingham palace about this matter. Indeed, the Prime Minister has announced that that was the case. I just hope that the discussions concern more than just seeking permission to hold the debate. This is a welcome opportunity to debate what most people, if not every right-thinking person, would consider to be the outrageous discrimination in our constitution against Roman Catholics and the equally unfair treatment of women. I come to this not from a religious perspective but from one of recognising that whatever someone’s religious views—or their views of the royal family—our constitution should not be based on unjustified discrimination.

  • DR HARRIS The case that I put in my Bill can be found in a book by Professor Vernon Bogdanor, who is, I am pleased to say, one of my constituents. In “The Monarchy and the Constitution”, published in 1995, he says at the end of chapter 2:

“The rules relating to succession, being a product of the religious struggles of the seventeenth century, are now ripe for reform. The statute specifically prohibiting a Roman Catholic or someone married to a Roman Catholic from occupying the throne is deeply offensive to Catholics, not only in Britain, but also in those Commonwealth countries with large Catholic populations such as Canada and Australia. It should be repealed.” I think that we will hear more about the Commonwealth later in the debate. Professor Bogdanor goes on: “In an era of equality of opportunity, moreover, it will appear increasingly anomalous for male heirs still to take precedence over female. There is at the time of writing a male heir apparent with two sons. Therefore, the succession is unlikely to be affected by any alteration in the law allowing for it to be passed to the eldest child of the sovereign irrespective of gender, as in Sweden. The time is ripe, surely, for such a reform. 


TREASON FELONY, ACT OF SETTLEMENT AND PARLIAMENTARY OATH BILL

19. In relation to the Treason Felony, Act of Settlement and Parliamentary Oath Bill, which has been presented to the House of Commons by Mr. Kevin McNamara MP (a member of this Committee) and others, we note that it would make three changes to important constitutional provisions in order— — to remove the statutory incapacity of people in communion with the Roman Catholic Church to inherit the Crown, and the requirement that the monarch must be in communion with the Church of England, by amending sections 2 and 3 of the Act of Settlement 1700; — to decriminalize the promotion of a republican form of government for the United Kingdom, by amending section 3 of the Treason Felony Act 1948; and — to provide for an alternative form of parliamentary oath which would not refer to the monarch or the Crown. 20. The Bill would remove a legal disability which has previously affected Roman Catholics and others who are not in communion with the Church of England. In decriminalizing the promotion of a republican form of government and providing for an alternative form of parliamentary oath, the Bill would also enhance the protection for the right to freedom of conscience under ECHR Article 9, the right to freedom of expression under ECHR Article 10, and the right to be free of discrimination on the grounds of religion and political opinion under ICCPR Article 26 and under Article 14 of the ECHR taken together with Article 10 of the ECHR and Article 3 of Protocol No. 1 to the ECHR. 21. In our view the Bill would be compatible with Convention rights. http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/93/9303.htm 9 Treason Felony, Act of Settlement and Parliamentary Oath Bill,-The Order of the day being read, for the Second Reading of the Treason Felony, Act of Settlement and Parliamentary Oath Bill; The Solicitor General, by Her Majesty's Command, acquainted the House, That Her Majesty, having been informed of the purport of the Bill, gives Her Consent, as far as Her Majesty's prerogative and interest are concerned, That the House may do therein as it shall think fit. Objection was taken to further proceeding. 

The Queen’s Consent

Bills which affect the prerogative powers of the monarch require the signification of Queen’s consent in both Houses before they are passed. Erskine May explains that: Signification of Queen’s consent is usually deferred until the third reading unless the interests involved, particularly those of the royal prerogative, are fundamental 25 RESEARCH PAPER 09/24 61 Erskine May, 23rd Edition, p708-709 62 HL Deb 14 January 2005 c495 63 Erskine May, 23rd Edition, p710 to the bill. This distinction is, to a great extent at least, one of convenience. In ordinary cases the communication is deferred to the latest stage in order that account may be taken of any amendment of the bill before the Queen’s consent in respect of the whole bill is given. But, if the matters affecting the royal interests form the main or a very important part of a bill, there is advantage in securing the permission of the Crown to proceed with the bill at the outset. In such cases, accordingly, the communication from the Queen is signified at the earliest practicable stage – usually the second reading. In the House of Lords, if a bill affects the prerogatives of the Crown, consent is normally signified at second reading. If a bill affects the interests of the Crown, but not the prerogative, the normal practice is to signify consent on third reading.61 It would appear that a bill to change the succession would need the signification of Queen’s Consent at the earliest possible stage in the Commons. Queen’s consent would probably need to be indicated at the second reading on the Royal Marriages and the Succession to the Crown (Prevention of Discrimination) Bill. 

second reading on Lord Dubs’s Bill Succession to the Crown Bill [HL] 2004-05, the Lord Chancellor, Lord Falconer of Thoroton, stated:

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Succession to the Crown Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.62 Erskine May explains the procedure if the Queen’s consent is withheld or not signified: If Queen’s consent has not been obtained or is not signified, the question on the relevant stage of a bill for which consent is required cannot be put [at this point Erskine May refers to, inter alia, the Military Action Against Iraq (Parliamentary Approval) Bill]. Similarly, where a bill affecting the interests of the Crown has been allowed through inadvertence, to be read a third time and passed without the Queen’s consent being signified, the proceedings have been declared null and void. The government’s usual practice is to advise the granting of consent even to bills of which it disapproves. The understanding is that the grant of consent does not imply approval by the Crown or its advisers, but only that the Crown does not intend that, for lack of its consent, Parliament should be debarred from debating such provisions.63 It is possible for consent to be granted by the monarch, but for Royal Assent to be withheld. The consent of the monarch does not necessarily reflect the monarch’s own personal view. 26 RESEARCH PAPER 09/24 64 HL Deb 27 February 1998 c916 65 Robert Blackburn, King and Country: Monarchy and the Future King Charles III, 2006, p118 66 Ibid, pp118-119 

67 “The Royal Marriages Act 1772”, Modern Law Review, Vol 14, Jan 1951 suggests that descendants of Queen Elizabeth II do not come within the Act, as she was a princess marrying into a foreign family

68 Sussex Peerage Case (1844) 11Cl and Fin 85 During the debate on Lord Archer of Weston-Super-Mare’s Succession to the Crown Bill [HL] 1997-98, Lord Williams told the House that the Queen had herself been consulted about the provisions, and on the gender issue, had indicated she had no objection: 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.64 

In his book, King and Country, Professor Blackburn argues that it might be the case that Prince Charles is in favour of reform of the religious requirements on the monarch:

It seems that the future Charles III is himself in favour of removing the religious provisions in the Act of Settlement… As he is famously known for saying, as King he would want to bee seen by the country as the ‘defender of faith’, not Defender of the Faith.65 Professor Blackburn goes on to quote former Liberal Democrat Leader Paddy Ashdown’s account of a conversation between Prince Charles, Tony Blair and Jonathan Sacks, the Chief Rabbi: The conversation turned to religious matters in the UK and the question of disestablishment of the Church of England, which Mr Ashdown expressed his support for. In response, Mr Ashdown records, “Charles looked at me, smiled broadly and said, “I really can’t think why we can’t have Catholics on the throne”.66 

A. Discrimination on the grounds of gender and religion

When Dr Evan Harris announced that he was to introduce a Bill on the Crown succession he stated that he intended: …to reverse centuries of discrimination against Catholics and women under the Act of Settlement and other enactments. Dr Harris said, “It is wrong that anti-Catholic discrimination is written into the UK’s constitution”… “It is not acceptable that our law continues to relegate women down the success to the crown, at a time when no sane politician would argue in its favour”… “Although the current discrimination does not have a wide practical effect, because this is still part of our constitution, it is an ongoing symbol of the lingering 2nd class status of Roman Catholics and women.”26 The Fabian Society’s 2003 Commission on the Future of the Monarchy argued that it is difficult to align the current restrictions on religion and gender in relation to the succession with general concerns to end discrimination and promote equality: The current rules of succession raise a fundamental question for a modern democracy. In the context of increasing cultural diversity, and an expectation of civil and social equality, can institutionalised gender and religious discrimination any longer be acceptable? We believe it cannot, for symbolic and practical reasons, and reform is long overdue.27 Professor Blackburn has also commented, on the matter of gender, that: Today, the practice is condemned of treating some people less favourably than others on grounds of their gender or sexuality in virtually all matters of a public nature, especially in holding public office. The principle is enshrined in post-war statutes such as the Sex Discrimination Acts and in western international human rights treaties such as the European Convention on Human Rights. Clearly, in this context, the present male preference in the law of succession to royal and aristocratic titles looks an anomaly. 28 John Gummer’s ten-minute rule Bill, Catholics (Prevention of Discrimination) Bill 2006-07 was the most recent attempt to change the rules on succession. Seeking leave to introduce the Bill he stated: In a civilised society there ought to be no reason to introduce this Bill. If we proposed a Bill on the Floor of the House of Commons that would make it illegal for the heir to the throne to marry a Muslim, a Methodist or a Mormon, that would be intolerable in a free society, yet the heir to the throne is still not allowed to 17 RESEARCH PAPER 09/24 29 HC Deb 20 February 2007 cc154-156 30 See for example HC Deb 28 June 2006 c259 31 Scottish Parliament Official Report, 16 December 1999, c1633-1754 32 Scottish Parliament Research Centre, The Act of Settlement, RP99/17, http://www.scottish.parliament.uk/business/research/pdf_res_papers/rp99-17.pdf 33 Ibid 34 Ibid, c512 marry a member of what is, on any Sunday, the largest worshipping community in this country. That is an insult to the Catholic community because it suggests that, somehow or other, being a Roman Catholic means being less of a citizen than someone belonging to any other religious denomination.29 

The Scottish National Party have, in recent years, made a number of calls for the discriminatory provisions of the Act of Settlement to be repealed. 30 Under the Scotland Act 1998 matters related to the Crown are reserved to the UK; the Scottish Parliament has no power to legislate in this area. However, the Scottish Parliament debated a motion on the Act of Settlement in December 1999 and resolved as follows:

Resolved, 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, recognises that amendment or repeal raises complex constitutional issues, and that this is a matter reserved to UK Parliament.31 For further details of developments in Scotland, see Scottish Parliament Information Centre Research Paper 99/17, The Act of Settlement.32 The Government has repeatedly stated its opposition to discrimination in this context. However, the Government has also suggested that the effects of the restrictions placed on the religion of the monarch and their spouse have had limited effect in practice. Lord Falconer also stated during the debate on Lord Dubs’s Bill that: … we should be clear that for all practical purposes, its effects are limited. There are 22 member of the Royal Family in line of succession after the Prince of Wales, all of whom are eligible to succeed and have been unaffected by the Act of Settlement. Only four living members of the Royal Family can be said to have been affected by the Act, but they come after the 22nd person in line to the throne. Therefore, to claim that the Act has a discriminatory impact is to ignore the improbability that any of those members of the Royal Family could, in practice, have succeeded.33 He went on to state that such legislation was: …not needed at the moment as there is no practical discriminatory effect on the current line of royal succession.34 18 21 Union with Ireland Act 1800, article second 22 HC Deb 12 January 2009 c513W

  • The Government’s position was recently summarised in an answer given by the Lord Chancellor, Jack Straw, on 12 January 2009:

Jo Swinson: To ask the Secretary of State for Justice what plans he has to bring forward legislative proposals to amend those provisions of the Act of Settlement relating to the Royal Succession; and what recent representations he has received on the matter. [244129] 

Mr. Straw: The Government have always stood firmly against discrimination in all its forms, including against Roman Catholics, and we will continue to do so. To bring about changes to the law on succession would be a complex undertaking involving amendment or repeal of a number of items of related legislation, as well as requiring the consent of legislatures of member nations of the Commonwealth. We are examining this complex area although there are no immediate plans to legislate.22 
The answer given by the then Prime Minister, Tony Blair, in December 1999, set out a similar line of argument:

Ms Roseanna Cunningham: To ask the Prime Minister if he will make it his policy to seek to amend the law to (a) allow members of the Royal family to marry a Catholic without losing their right to inherit the throne and (b) allow Roman Catholics to inherit the throne; and if he will make a statement. [99658] 

The Prime Minister [holding answer 26 November 1999]: The Government have always stood firmly against discrimination in all its forms, including against Roman Catholics, and it will continue to do so.

The Government have a heavy legislative programme aimed at delivering key manifesto commitments in areas such as health, education, crime and reform of the welfare system. To bring about change to the law on succession would be a complex undertaking involving amendment or repeal of a number of items of related legislation, as well as requiring the consent of legislatures of member nations of the Commonwealth. It would raise other major constitutional issues. The Government have no plans to legislate in this area.23 In March 2008, Jack Straw had seemed to indicate that there had been a slight shift in Government thinking on these matters. Answering a question from Jim Devine on the abolition of the Act of Settlement 1700 Jack Straw stated: Mr. Straw: Let me say to my hon. Friend that I speak on behalf of the Prime Minister: because of the position that Her Majesty occupies as head of the Anglican Church, this is a rather more complicated matter than might be anticipated. We are certainly ready to consider it, and I fully understand that my hon. Friend, many on both sides of the House and thousands outside it, see that provision as antiquated.24 However, as Frank Cranmer has written: Two days later, however, in the No. 10 morning press briefing, the Prime Minister’s spokesman seemed to dismiss the idea that any kind of reform was possible, since: to bring about changes to the law on succession would be a very complex undertaking; it would involve the amendment or appeal [sic] of a number of items of related legislation, but it would also require the consent of the legislators of member nations of the Commonwealth. [Morning Press Briefing from 27 March 2008] So that looks like a ‘no’, then – at least for the moment.25

References

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  1. ^ (30, 31 Vict., c. 75)
  2. ^ (34, 35 Vict., c. 48)
  3. ^ History Learning Site - The Clarendon Code
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