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Queen and Country: Important Changes to the Crown Succession

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About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

It seems that Britain has come down with a serious case of baby brain, not just any form, mind you, but royal baby brain. The epidemic has spread to the Commonwealth and beyond. As journalists rush to capture every possible moment of their royal childhoods, it does not seem that His Royal Highness Prince George and his new sister Her Royal Highness Princess Charlotte will ever be able to evade the spotlight.

The birth of a new generation of the British royal family is undoubtedly momentous in terms of boosting national pride and morale, but the two young children, third and fourth in line to the British throne, also represent an unprecedented shake-up of the crown succession system. Although the impact of the monarchy on the legal system may be, in practice, virtually non-existent, the changes to the succession rules are an important step forward for gender equality. The symbolic importance of the monarchy sets a welcome example; women can, and should, be world leaders too.

The Role of the Monarchy

To bring this discussion into context, it may be useful to outline the role of the monarchy on the English and Welsh legal system.

Our current court system is the result of hundreds of years of evolution. Although local governments presided over local courts, at one time the monarch himself would have presided over the higher courts. The very first judges date back to the 12th Century, and they were ’court officials who had particular experience in advising the King on the settlement of disputes’. Although it is not necessary to detail the entire history of the influence of the monarch on our court system, it is important to note that this historical influence can still be seen in some aspects of the legal system.

For example, criminal cases are documented to be against ‘Regina’, which means the reigning queen. Additionally, top level barristers are known as the ‘Queen’s Counsel’, and the authority of the court system and the judges operating within it is held to derive from the Crown.

The history of the legislature has also interlocked with that of the monarchy. However, there has been a huge transition from the monarch being able to make their will law to the situation today. Now, the monarch’s role is “purely formal”. Every bill must have Royal Assent in order to become a legally binding statute, but in practice the monarch does not refuse to give assent. Indeed, Royal Assent has not been refused since 1707, when Queen Anne refused a bill which sent militia to Scotland.

The monarch also has ceremonial duties to perform when Parliament opens and closes and when a new Government is elected, but these duties largely involve making speeches, meeting with politicians and attending Parliament in person. They do not, in practice, affect what laws are made.

Hence, the monarchy has a largely symbolic role within the law machine of England and Wales, with little ability to alter the democratic process in practice.

The Succession to the Crown Act 2013

The Succession to the Crown Act 2013 made some important changes to the rules regarding the Crown succession.

1. Changes to the Rules on Gender

Historically, boys took precedence over girls in the line of succession to the Crown. Hence, if Elizabeth II had had a brother, whether he was younger or older, she would not have been the matriarch of the immediate royal family. Instead, she would have remained a Princess, and her brother would have been King.

For the first time, this Act alters the rules so that the line of succession to the Crown does not depend on gender. The succession is now solely dependent on the respective ages of the monarch’s children or heirs. This means that the new-born Princess Charlotte has a right to the throne after her older brother Prince George, even if her parents have another male child in the future.

The Act applies to any child born after 28th October 2011. The Act is not retrospective, so Princess Charlotte is one of the first women in the royal family to have ever had such an unshakeable claim to the throne despite having a brother.  The Act first came to fruition in 2012, when Lady Davina Lewis, whose father, the Duke of Gloucester, is the Queen’s first cousin, had her second child. The boy, Tāne, who was born in 2012, would have overtaken his sister Senna in line to the throne if the old rules had been in place. However, he is now 29th in line to the throne while Senna, born in 2010, is 28th.

2. Marriage to a Roman Catholic

As the monarch is the head of the Church of England, he or she is not permitted to be a member of or to practise any other religion. Historically, it was additionally forbidden for the spouse of the monarch to be a Roman Catholic. The tensions between the British monarchy and Roman Catholicism date back to King Henry VIII, but the new Act has removed discrimination against Catholic spouses. The Act is retrospective in this regard; hence the Queen's cousin, Prince Michael of Kent, who married a Catholic, will regain his place in the line of succession.

Commentary

The central theme to these changes to the crown succession laws has been anti-discrimination. Although the monarchy have a largely symbolic importance in the legal sphere of England and Wales, as discussed below, this Act has managed to root out embedded discrimination, and has transformed the succession lineage for the 21st century. With an increasing public awareness of gender bias and discrimination, the old rules would have been unsustainable. Indeed, as there has been a rise in public support and interest in the monarchy in recent years, the rules of the royals have come under scrutiny and may not have stood well against arguments in favour of equality.

Nick Clegg, the former deputy Prime Minister, had a central role in producing the legislation. In a statement made on 26th March 2015, he said:

The Act removes the male bias in the line of succession, ending the system of male heirs automatically inheriting the throne over female heirs and removing this historic discrimination against women. The Act also ends another long-standing piece of discrimination, the bar on anyone who marries a Roman Catholic from becoming monarch…

The Act reflects [the former] Government’s emphasis on equality by removing centuries of discrimination on both religious and gender grounds. The Act puts in place succession laws that are fit for the 21st century and for a modern constitutional monarchy.

However, there are some who have argued that the Act does not go far enough. The monarch is still not permitted to be a Roman Catholic. Although this may seem obvious, given that the monarch is the head of the Church of England, it may put future successors at risk of losing their place in line. By allowing the monarch to marry a Roman Catholic, the future heirs to the throne may be brought up or influenced by Catholicism. Hence, religion may still be a barrier for some. Religion, as ever, is a thorny issue. Indeed, The Telegraph reported that ’one Scottish cardinal described the bar as ‘state sponsored sectarianism’.

Elsewhere in the Commonwealth there has been serious concern. In Ontario, Canada, a Roman Catholic challenged the law stating that it discriminates against his religion. Although the court dismissed his case, it is clear that the influence of the monarchy has resounding relevance both at home and abroad.

The monarchy has been under-going a much needed shake-up over the past decade or so. A rise in public interest in the family, particularly since the marriage of Prince William and Kate Middleton, has changed their public image. The royal family were not the only ones eagerly awaiting the birth of Prince George or Princess Charlotte – it seems the whole Commonwealth has been counting down. This has put a lot of emphasis on the royal family, which means that there has been more scrutiny on the laws surrounding the Crown. Changes to the Crown succession have been one of the most significant developments in recent times because there has been an intense emphasis on removing discriminatory frameworks.

Although there are some who would argue that the Act does not go far enough in terms of religion, it is undeniable that there has been massive advances for women in the monarchy. The monarchy play a significant symbolic role in the legal system, despite having little to no practical effect in modern times, so these developments are particularly influential and promising for future leaders.

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Tagged: Constitution

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