Changing the succession?
Written by Professor David Flint AM   
Saturday, 11 December 2004

The London newspaper The Observer of 12 December 2004 reports that three of the British Fabian Society’s recommendations on the monarchy have been included in the draft of a private members’ bill.

Lord (Alf) Dubs will introduce a Bill containing three of its recommendations. His Succession to the Crown Bill, scheduled for a second reading in the Lords on 14 January, 2004 proposes ending male primogeniture, under which a male succeeds to the throne before any female of the same degree, abolishing the ban on an heir marrying a Catholic and doing away with the Royal Marriages Act, under which members of the Royal Family need The Queen’s approval to marry.

To have any hope of success, the Bill will need government support.

 The British government may be wary about this-it has not been successful with other constitutional initiatives. Its attempt to abolish the ancient office of Lord Chancellor has failed. This was announced in a press release, without any discussion papers and without any consultation, and, it is widely believed, without even the courtesy of even letting The Queen know about it before the newspapers announcing this arrived at the Palace!

The reform of the House of Lords seems to have nowhere to go. The government does not want any hereditary element,even the few left, but it cannot bring itself to have an elected senate which would expect real powers over legislation.

On the other hand, the principal part of Lord Dubs Bill, the abandonment of primogeniture so that the eldest child will succeed, whether a boy or girl, is unlikely to have any practical effect for a long time. If the government is inclined to support the Bill, common courtesy, if not constitutional convention suggests the Prime Minister should first consult with The Queen. He should not do this one by press release!

Constitutionally, the British Prime Minister should also consult with the governments of the Realms, all of those Commonwealth countries which have The Queen as their Sovereign. It would be diplomatic to do this after consulting The Queen, and certainly before indicating in public any government support for the Bill.

 Otherwise it would look as if he were taking The Commonwealth for granted. It is however most unlikely that any Realm would object. Most would see the need for approval under the Royal Marriages Act as a domestic matter for the UK, on which The Queen is advised by Her British ministers, as was the case concerning the late Princess Margaret .

Nor would any Realm object to the end of the rule against Catholic marriages-none have an established church, and this rule resulted from political disputes and wars in Europe of no relevance to them or indeed to the modern United Kingdom, except perhaps vestigially in the politics of the Northern Irish province.

As for male primogeniture, all of the Realms, as with the United Kingdom itself, affirm the legal equality of women and men. If the UK does legislate along these lines, the Act could recite the consultation with the governments of the Realms, their support and their intention to introduce supporting legislation. Indeed, the preamble to the Statute of Westminster declares that the constitutional position is that any alteration of the law touching the succession to the Throne should also enjoy the assent of each of the Parliaments nof each of the then Dominions, now Realms.

In addition, the Australia Act of 1986 provides that British legislation cannot now extend to Australia, which suggests that the change could only have effect here under Australian and not just British legislation.

 Otherwise the Australian Crown could descend differently from the succession in the UK. If there were different laws about the succession, the Crown of one Realm could go to a younger prince, and the Crown of another to a first born princess. Clearly such a situation should not be the result merely of oversight on the part of Parliament.

At the time of the Abdication of Edward V111, the Dominion Parliaments did not all coordinate the date of the new reign with the UK, the result being that it could have been argued that some had Edward for a slightly longer period.

Is Australian state legislation also necessary? Parallel state legislation has not been thought necessary when the Royal Style has been changed, for example the introduction of the title Queen of Australia in 1953. And Australia is an "indissoluble federal Commonwealth under the Crown and the Constitution", as the preamble to the Constitution Act affirms.

 In my view, the Australian Crown is one-we do not have seven crowns. This I think was one of the several faults of the 1999 model-it conceived a constitutional monstrosity- a federal republic and six state constitutional monarchies.

This of course is technically possible-Switzerland once contained a monarchical canton and Malaysia today has monarchical and republican states.But I would argue that it was not open to the Parliament to create, by implication from a federal referendum, what did not exist constitutionally.

This went against the proposition that the Imperial Crown had devolved into several Crowns as the Dominions gained full independence. I do not believe the Australian Crown became seven-after all we are, as I pointed out, an indissoluble federal Commonwealth under the Crown, once the Imperial Crown, now the Australian Crown.

And if the Australian Crown had somehow subdivided into seven, presumably because of the Balfour Declaration and the Statute of Westminster, what would stop one from claiming independence? So state legislation is probably not necessary, but it would reaffirm the constitutional importance of the measure, and the direct access The Queen which the State Premiers enjoy, which is unique in the Commonwealth. And can you imagine what a delight that must be for Her Majesty to be able to communicate with and to receive all of her six Australian Premiers and her State Governors, as well as the Prime Minister and the Governor-General! And for over fifty years of this, we have never paid her a cent!

Until next time,

 David Flint