Introduction
On 28th October 2011, David Cameron told the meeting of the Commonwealth Heads of Government that he and the heads of the fifteen other Commonwealth realms had reached an historic agreement to change the order of succession.1 Pending agreement of Parliament and all the individual governments for all the Commonwealth realms, future heirs to the British throne would be determined exclusively by simple birth-order irrespective of sex.
This briefing paper is written to support the current preference for male heirs in the order of succession. We shall argue both from a Biblical and a Constitutional perspective that any departure from the status quo will prejudice the legitimacy of the monarchy. We shall observe that the monarchy cannot be viewed in isolation and that any departure from the current model could affect the succession to every title in the land. We shall show that it will also disrupt historic principles currently supporting every family in the land.
1 What is Male Primogeniture?
The ‘order of succession’ is the procedure regulated by Parliamentary statute for determining who the new monarch will be at the time the old one dies. The current laws regulating the order of succession follow a system known as male primogeniture’, which is short for ‘male preference cognatic primogeniture.’ Halsbury’s Laws of England explain this system as follows:
‘In the absence of statutory limitations, therefore, the Crown would descend lineally to the issue of the reigning monarch, males being preferred to females, and subject to the right of primogeniture amongst both males and females of equal degree, whilst children would represent their deceased ancestors ‘per stirpes in infinitum.’ Upon failure of lineal descendants, the Crown would pass under the rule to the nearest collateral relation descended from the blood royal.’ 2
Put simply, this means that younger sons take precedence over their older sisters in line for the throne. A woman will only inherit the throne of Britain if she has no eligible male siblings. A younger brother will always take precedence over older sisters in the order of succession. Given the system of male primogeniture, our current queen became monarch because she did not have any brothers. Similarly, Queen Victoria (1819 -1901) inherited the throne because she had been the only child of Edward, Duke of Kent and Victoria Maria Louisa of Saxe-Coburg. Under the present system, if the first-born child of the Duke and Duchess of Cambridge happened to be a daughter, she would become a direct heir to the throne only if she were not later followed by a male brother.
An example of a younger brother inheriting the throne ahead of a elder sister occurred when Queen Victoria’s son Edward VII inherited the throne in 1901 over his older sister Princess Victoria. Had Princess Victoria become the next queen, she would have been Queen Victoria II while her son, Kaiser Wilhelm II, would probably have been king over a huge British-German Empire. 3
If the Governments of the Commonwealth realms vote to enact the changes agreed upon during the Commonwealth of Nations summit last October, then the entire order of succession would be reshuffled. The most immediate effect would be that Princess Anne would shoot up to number four in line to the throne from her current place as number ten.
2 The current debate
While the previous Labour Government supported a change from male to absolute primogeniture, this had not been considered an issue of any urgency. A change in the law would affect neither Prince Charles (the current heir to the throne), nor Prince William (the second in line for the throne) since neither of them have older sisters. It was not until the wedding of Prince William and Kate Middleton that the issue was thrust into the national limelight. Policy makers began to speculate what would happen if the royal couple’s first-born child happened to be a girl. Would it not be ‘unfair’ if that child were not able to enjoy an equal right to the throne? Shouldn’t Britain change its laws to reflect ‘modern’ values such as ‘equality’ and ‘fairness’?
Keith Vaz MP (Leicester East) put forward a Private Member’s Bill in early 2011, ‘to remove any distinction between the sexes in determining the succession of the throne.’ 4 On 16th April, 2011, the BBC reported that, according to Deputy Prime Minister Nick Clegg, the Government was in consultations with other members of the Commonwealth realms about changing the succession laws. 5
At the Commonwealth Heads of Government meeting in Australia on 28th October 2011 David Cameron sought agreement from the heads of the Commonwealth realms to change the rules. He prepared the ground by writing a letter earlier in the month to all the countries urging them to support a change and suggesting that present rules ‘enshrine male superiority.’ 6
The law prevents the British Parliament from making unilateral changes to the rules of succession. There must be unanimity between all the nations that share the crown. Even now, as of writing this paper, no individual government of any of the nations involved has voted on whether to agree to the change.
Despite the fact that the individual governments, let alone the UK government, have not yet reached an agreement, both the media and the British Government have been talking about the matter as if the changes had already been introduced. For example, on 29th October 2011, the Daily Mail ran an article with the dramatic title: ‘If Wills and Kate have a girl first, she’ll be queen! Commonwealth agrees historic change to give sex equality in Royal succession.’ 7
The nations whose governments must consent to a change are Antigua and Barbuda, Australia, the Bahamas, Barbados, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New Guinea, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Solomon Islands, Tuvalu and the United Kingdom
While none of these governments has yet agreed to the changes approved by their head of state last autumn, it has been a shrewd tactical move on the part of the British Government to keep telling everyone that the succession laws have already been changed. Thus, when it does finally come down to a vote, members of Parliament will be told that they must merely ratify what has already been agreed. What should in fact be an occasion of robust debate will be presented as a mere formality. For some reason, the Government wants critical discussion to dry up. According to Telegraph journalist Charles Moore:
‘There is a widespread delusion, I find, that the succession to the throne has been changed. If William and Kate have a first-born daughter, people think, that girl will be Queen. … It’s all been sorted out, apparently. There will be what is called – without any apparent sense of absurdity – a Royal Equality Act, and then Bob’s your uncle (though your poor uncle Bob, if currently in line to the throne, will now have to give place to your first-born aunt).
‘It is not surprising that people think this, because that is what they have been told to think.
‘It is being put together semi-secretly, and our Government will not disclose the legal advice it is receiving. It is also, in spirit, imperialist: the British Government decides, and then tries to push all the ‘lesser’ countries into agreeing.
‘When the reforms do eventually reach the 16 parliaments, the government line will be that this has all been agreed and so legislators should just nod it through. The Queen may be embarrassed, but since, constitutionally, she can act only on the advice of her ministers, she will be powerless. At this point, any self-respecting Member of Parliament would be entitled to say: Wait a minute! You are trying to change the rules by which our head of state is chosen and controlled. Is this good for her and her heirs? Is it good for our country? I am going to ask some difficult questions.”’ 8
3 Male Primogeniture: Historical and legal background
The current laws of succession are regulated by non-statutory common law in addition to being codified in a series of Parliamentary statutes. We will discuss these in turn.
Common Law and the British Constitution
The backbone of the British constitution, from which the monarchy derives its legitimacy, is English common law. In his magisterial Commentaries on the Laws of England, the legal scholar William Blackstone (1723-1780) talked about common law as being the lex non scripta (unwritten laws). The reason he called them unwritten is because ‘their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.’ 9
To call the common law ‘unwritten’ may be misleading for, as Blackstone goes on to remind his readers, such laws are indeed recorded ‘in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession … ‘ What the term ‘unwritten’ connotes is that the binding authority of common law does not depend specifically on Parliamentary statutes, even though much of it has been codified by Parliament or by the courts. Rather, the binding authority of common law derives from the authoritative role played by precedent within the British constitution.
When we speak of the UK constitution what we mean is ‘the constituted – that is, existing, arrangement of governmental institutions, laws and customs together with the principles and goals that animated them.’ 10 As this suggests, the constitution is closely related to common law since both are rooted in the notion that, to quote again from Blackstone, ‘precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration.’ 11
One of the crucial areas regulated by common law is the inheritance of property. As Blackstone writes:
‘As to the general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king’s ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property … ‘ 12
The relevance this has to male primogeniture is that English common law has always given preference to males in the inheritance of property. This custom goes back to feudal times and is foundational to the transmission of titles within the British aristocracy. Similarly, the succession of the crown, being a case of inheritance, has always conformed to common law and given preference to males over females. As Bogdanor states in The Monarchy and the Constitution,
‘ … under common law, the Crown descends on the same basis as the inheritance of land. This means that male heirs take precedence over female, with children representing their deceased ancestors; and, under the rule of primogeniture, the older son precedes the younger.’ 13
The practice of male primogeniture extends back a long time. It seems to have been established custom by the 10th century and to have continued unchanged after the Norman invasion. 14 Blackstone traces it back to feudal times, saying, ‘as to the particular mode of inheritance, it in general corresponds with the feudal path of descents, chalked out by the common law in the succession to landed estates … As in them, the preference of males to females, and the right of primogeniture among the males, are strictly adhered to. … 15
Key Statutes regulating succession
Over time the rules governing the succession of the crown have been codified in a series of Parliamentary statutes. It is important to appreciate that these statutes did not create the laws of succession but simply codified previously existing practices.
The first significant statute is the Bill of Rights, 1689. This was created in response to the constitutional crisis that arose during the reign of James II of England and VII of Scotland (r. 1633 -1701). Seven English nobleman (known later as the Immortal Seven’) invited James’ eldest daughter, Mary, to come to Britain and rule. She agreed on the condition that she would rule the country jointly with her Dutch husband, William, Prince of Orange.
The Bill of Rights, passed in December 1689, was designed to protect Parliament from arbitrary rule of another Sovereign such as the deposed James II, to ensure the continuation of the Protestant faith, and to preserve common law freedoms.
The next constitutional milestone occurred in the Act of Settlement 1701. This was passed towards the close of the reign of King William III (r. 1650 -1702) who died without a legal heir. Since the Bill of Rights had not specified the line of succession far enough into the future to cover such an eventuality, the Act of Settlement specified that the heirs to the throne would always be Protestant descendants of Princess Sophia of Hanover (1630-1714), granddaughter of James I of England, who was also appointed heir presumptive by the same Act.
The Act of Settlement, which was extended to Scotland in 1707, also laid down other rules of constitutional import, including male preference primogeniture.
The Act of Settlement came to apply to all of the Commonwealth realms through the Statute of Westminster 1931. The Statute specifies that the Act of Settlement cannot be altered in any realm except with the consent of all the realms sharing the same throne. Although the Act of Settlement is not the only law which mandates or assumes male primogeniture, it has been the focus of the recent debate.
There are other laws regulating aspects of succession, including the Coronation Oath Act 1689, the Sophia Naturalization Act 1705, the Act of Union with Scotland 1706, Princess Sophia’s Precedence Act 1711, the Royal Marriages Act 1772, the Union with Ireland Act 1800, the Accession Declaration Act 1910, the 1917 Proclamation, the Instrument of Abdication 1936 and the Regency Act 1937. Since some of these acts assume or make reference to male primogeniture, changing the system will not be easy. So integral has male primogeniture been to the British constitution that the BBC reported on 28th October, 2011 that ‘succession changes will require a raft of historic legislation to be amended’ 16 and they have reported that ‘Government experts admit they are still examining just which laws need to alter. They have drawn up a list of nine dating back to 1689 – but they admit it may not be exhaustive.’ 17
We will turn now to consider the primary arguments put forward by those who wish to change these laws.
