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The Succession to the Crown Bill is a constitutional can of worms

22 January 2013

Today, the Succession to the Crown Bill will receive its second reading in the House of Commons. If one had to think of one person who would welcome this plan to ‘modernise’ the Monarchy, it would have to be that arch-Blairite, Baroness Jay of Paddington. But she popped up yesterday in her capacity as chair of the Lords’ Constitution Committee, to warn of the potential ‘unintended consequences’ of the Bill and to decry the use of the emergency fast track procedure to rush it through.

Surely some mistake? Actually, no. Baroness Jay arguably knows more than anybody about tinkering with the constitution, having made it her life’s work. Despite the consensus across parties and in the media, we ought to take her comments as a sign there is far more unease about this Bill behind the scenes than there is in public.

A hint of the trouble the Bill could bring, comes in clause 5, which says that once it is passed, none of its measures will actually come into effect until the Lord President, ie Nick Clegg says so. This is because the British Monarch is head of state of 15 other nations too. And although their governments have signed up to the plan, none of them has started the legislative process. So the Act will lie dormant, to be implemented at a later date.

Already, at home, the republicans are enjoying the opportunity to vote on the succession and the Labour MP Paul Flynn has put down a number of mischievous amendments. But the real trouble will come in countries like New Zealand and Australia, where the griping against the monarchy is quite widespread. Will the legislation pass? Or will it be amended to say, for instance, that Prince William should be the last monarch of the Bahamas? And what happens if a government in one of the Realms simply says. ‘Hang on, this Bill seems like trouble, let’s just put the whole thing off.’

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The answer is that the Act, having been rushed through in Britain will be on the statute book, waiting for the Lord President to produce his pen to implement each clause in Britain as he sees fit.

This takes us to the essence of the criticism of the Bill. In the name of modernisation it risks introducing two entirely new concepts into the succession to the Crown: doubt, and executive discretion. At the same time, it removes another important convention: pragmatism. For if we were confronted with a brilliant elder daughter, married to a Catholic, we would probably find a way of allowing her to succeed without resorting to a doctrinare process fraught with legal difficulty.

Once you start to think of it like that, you realise that Mr Clegg may be opening yet another can of the constitutional worms he so enjoys feeding to us all, like the AV referendum.

There are numerous unanswered questions which Lady Jay and her committee rightly suggest should be fully debated by Parliament. Supposing, for instance, the Duke and Duchess of Cambridge have a daughter and then a son? Contrary to the spin, the girl will not in law actually be next in line to the throne until the Bill has been passed by all the other 15 Realms. The poor son might find himself as first in line, only to be disinherited in the future. The entire line of succession underneath them would also be rejigged. What would happen if some trouble-makers mounted a legal challenge at any stage?

Then there is the issue of the Church of England. All of my Catholic friends bring up their children as Catholics, believing that is their duty. So, surely, if the Monarch married a Catholic their heir could not be a communicating member of the Church of England and its Supreme Governor, and this could trigger the disestablishment of the Church? Mr Clegg says no, as the Vatican no longer requires Catholic parents to bring up their children in the faith. Really? I am not an expert, but that assertion ought to be challenged.

The Bill will no doubt zoom through the House of Commons today. But when it arrives in the House of Lords, let us hope a proper scrutiny will really begin. When people like the Deputy Prime Minister talk of modernising the constitution, experience suggests we do well to count the spoons.

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Show comments
  • Revd Robert West

    The Crown Reform Bill, now an Act, is substantively appalling and procedurally it is out of keeping with the kind of changes proposed and passed, albeit subject to ratification by 15 other domains. I believe that male primogeniture should have been upheld and that no Supreme Governor of a Protestant Church should be a member of the Roman Catholic Church, which does not recognise Protestant Churches as true Churches. Until the Roman Catholic Church recognises the validity and independence of the Church of England from the Church of Rome there can be no valid or logical basis for this change. There is nothing wrong with male headship but everything to be said against Papal headship, through the back door, of our Church of England

  • dalai guevara

    I cannot wait for the Duchess to give birth to a girl first, followed by a boy a few years on as a Plan B backup, but to see this constitutional change denied. Then we would find ourselves not only sporting an unelected (Barosso-like?) Head of State, but also supporting the misogynist status quo.

    But let us not stop there – the ‘disastablishment’ of the Supreme Governor’s role from that of the Monarch is inconceivable for what reason exactly? It is no longer (and never was, actually) explained why -just because some jaffa could not produce male offspring within the ethical and legal limits several hundred years ago- we still need to exclude large sections of society from potentially representing it.

  • kyalami

    What a load of nonsense.

    Adopt the bill for the UK and leave the Commonwealth nations to do as they wish.

  • Resa Bennett

    You seem to believe that sanctimony trumps the need for fact-checking, and it looks like your readers have been taken in.

    Heirs to the British throne can already marry spouses of any religion except Catholicism, including religions that require raising the children in the faith. An Orthodox spouse is likewise compelled by his or her faith to raise their children Orthodox, which would exclude them from the throne. Yet you have no objection to an Orthodox consort.

    So were you simply not bothered to check your facts, or merely a hypocrite?

  • williamblakesghost

    If it s Clegg’s plan then it is bound to be a calamity….Everything he touches turns to excrement.

  • David B

    It’s called the law of unintended consequences and all legislation suffers from it.
    It is why governments should legislate with caution. The last government used legislation as a way of being seen to do something/ anything and as a result we ended up doing nothing but we now have stupid legislation like for eliminating child poverty,
    reducing carbon emissions and reducing the budget deficit. This legislation is meaningless and there is no recourse if nothing is done, except a PR mess that bring politics into further disrepute.

  • Harold Angryperson

    This piece of legislative junk first reared its ugly head back in 2008, during the dying days of the Maximum Imbecile’s regime. The question is, why has this (along with a few other pieces of widely-derided proposed legislation from that time) popped up again? It makes you wonder what the real driving force is behind it. It certainly isn’t popular will.

  • Macky Dee

    Clegg is a true liberal – he does not believe in the Monarchy!

  • Stephen Powell

    Well Australia is a realm. But each Australian state and territory also has a constitution that recognises the monarch that would also need to be aligned.

  • Jebediah

    Well there’s no rush. William and Kate’s child is unlikely to be King/Queen for fifty years. Might as well take the time to get it right.

    • Tom Tom

      It seems increasingly likely there will not be a monarchy well before Charles III ends his reign. How did Elizabeth choose names like Charles and Edward for her sons with Charles I and Edward VIII as such lucky symbols ?

      • Harold Angryperson

        Doubtless with this in mind Charles stated several years ago that he would reign as George VII

    • Russell

      I am surprised I haven’t heard the ‘Gay’ lobby up in arms and only the Catholics!
      Prime territory for ‘underpants man Welsh MP from the Rhonda.
      What if Bill & Kate’s child is Gay, Lesbian,Transexual or something else! Would they be able to marry a fellow Gay/Lesbian/Transexual?

  • DallasBeaufort
  • HooksLaw

    Whats wrong with Australia and New Zealand, or anybody, deciding who their head of state must be?
    What this shows is what is wrong with the Commonwealth if they can determine who WE want our head of state to be.
    Trust the Spectator to look through the wrong end of the telescope.

  • Tom Tom

    This is basically playing with the 1688 Settlement caused by James II trying to reintroduce Roman Catholicism after Charles II gingerly tried to restore the Stuart Monarchy in 1660 and Re-Establish The Church of England and House of Lords. The Act of Union with Scotland 1704 is predicated on the 1701 Act of Settlement. Playing with the basis of the Constitution of England and the basis of Great Britain is a bizarre act in times like these. The political class seems obsessed with undoing the ties that bind.

  • Colonel Mustard

    The dubious and pouting man-child Clegg, who transforms the majesty and responsibility of constitution and government to the status of a third rate company board meeting’s “good idea” with temper tantrums if he doesn’t get his own way. The legacy bequeathed to the nation is being trashed by this incontinent meddling in pursuit of a “Clegg knows best” ideology. I’m afraid he is a greater threat to this country than any malevolent muslim cleric.

    • telemachus

      Of course Clegg engineered more demises than the 7/7 crew.
      I may have read that in my latest EDL leaflet

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