The Royal baby, the rules of succession, and the realms

15 July 2013

Professor Robert Hazell

In anticipation of the birth of the Royal baby, Parliament passed the Succession to the Crown Act in April 2013.  It provides that in future the eldest child will be next in line of succession, whether it is a girl or a boy.  The law will not come into force in time for the Royal birth, but the new baby when born will be next in line, writes Professor Robert Hazell of the UCL Constitution Unit.

Why have the rules of succession been changed?

Over the last 20 years a series of Private Member’s bills have been introduced into both Houses of Parliament to provide for gender equality in the rules of succession to the Crown.  The Labour government did not resist the principle of the change; but it explained that such a change could be initiated only by the government, because of the need to engage with the 15 other countries of which the Queen is head of state (the Realms).  The government supported the change because of the equalities legislation it had itself introduced.  Another motivating factor was that the other European monarchies were all amending their laws to introduce equal primogeniture.  Sweden was the first to change, in 1980, followed by the Netherlands in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009, and Luxembourg in 2011.  Spain has said it will switch to equal primogeniture, but the Spanish constitution has not yet been amended.

As the eldest child, the Royal baby will be next in line of succession after Prince William, whether it is a girl or a boy

Professor Robert Hazell

Although supportive of the change, the Labour government ultimately failed to act because it was daunted by the size of the task involved in engaging with the Realms; by further complications, such as whether to address the discrimination against Catholics which is also built into the rules of succession; and because there was no immediate reason to do so.

Why now?

The marriage of Prince William and Kate Middleton in April 2011 provided a spur to action.  What had been a hypothetical problem became a real possibility.  Having written to them beforehand, in October 2011 David Cameron used the Commonwealth Heads of Government meeting in Perth, Australia, to engage with those Commonwealth countries that are also Realms and seek their agreement to change their own laws.  The UK government has said that it will not bring the new law into force until all the Realms have made the change.  When the change is made, it will be backdated to 28 October 2011, the date of the agreement announced in Perth.

Why has changing the law taken so long?  The Realms

Changing the rules of succession for the UK is complicated because the British monarch is head of state of 15 other countries, known as the Realms.  These include large countries such as Australia, Canada, Jamaica, New Zealand; and small countries such as St Vincent, Tuvalu and the Solomon Islands.  (The full list is Australia, New Zealand, Canada, Jamaica, Antigua and Barbuda, Belize, Papua New Guinea, St Christopher and Nevis, St Vincent and the Grenadines, Tuvalu, Barbados, Grenada, Solomon Islands, St Lucia and The Bahamas).

The UK government and Buckingham Palace want any change in the rules of succession to be introduced throughout the Realms (if there were different rules, that could lead in time to different members of the Royal family succeeding in different countries).  Under the Perth agreement all the Realms agreed to make the necessary changes to their own laws.  The nature of the change required varies roughly in proportion to the size of the country: the smallest countries may simply pass a Cabinet resolution, others will legislate in parliament, while the largest countries may need to amend their constitutions.

Australia and Canada face particular difficulties because they are federations, where the consent of the states (in Australia) or the provinces (in Canada) is required for any constitutional amendment.  In Australia a compromise has been agreed that the State Parliaments will request the federal Parliament to change the law.  In Canada a minimalist law passed by the federal Parliament has since been challenged on the ground that changing the office of the Crown properly requires amendment of the Canadian constitution.

Will the Royal baby be next in line?

As the eldest child, the Royal baby will be next in line of succession after Prince William, whether it is a girl or a boy.  It does not matter that the new law has not been brought into force providing for equal primogeniture: so long as there is only one child, it is next in line.  The new law would only be needed if the eldest child is a girl, and a second child is subsequently born which is a boy.  The UK government hopes and expects that all the Realms will have come into line in the next 6-12 months, so the new law should have come into force by the time of the birth of any second child.

What other changes were made to the rules of succession?

Two other changes were made.  The Royal Marriages Act 1772 was repealed, and in future only the first six persons in line to the throne will require the Sovereign’s approval to marry.  Second, marrying a Roman Catholic will no longer disqualify a person from being in the line of succession.  But the prohibitions on the Monarch being a Roman Catholic remain: the Sovereign continues to be Supreme Governor of the Church of England, and must be in communion with the Church of England.

What does this change tell us about the British constitution?

Being unwritten, the British constitution is very easy to amend. Big changes, such as devolution to Scotland and Wales, reforming the House of Lords, or the Human Rights Act can be introduced by simple Act of Parliament.  What this episode shows is that changes to the succession to the Crown are much more difficult, because the change needs to involve not just the UK but the 15 other Realms.

It will have taken two to three years to effect this small change.  The difficulties in the Realms are multiple and varied.  Some saw this as a project of the UK government, and little to do with them.  Some struggled to realise what was required.  Some did not wish to provoke a wider debate about the monarchy.  At the other end of the scale, the two largest countries, Australia and Canada, have constitutions which are notoriously difficult to change.  So if any future change requires a constitutional amendment in either of those countries, the difficulties are further compounded.

It is too early to tell whether this small change has further consequences for the Realms themselves.  They are a widely scattered group of countries, most of whom have little in common.  It is possible that this exercise will have brought them a little closer together; it is also possible that it prompts some to question the link with the monarchy of a country so far away. 

This article was originally posted on the UCL Constitution Unit blog