TheAct of Settlement (12 & 13 Will. 3. c. 2) is anact of theParliament of England that settled thesuccession to theEnglish andIrish crowns to onlyProtestants, which passed in 1701.[c] More specifically, anyone who became a Roman Catholic, or who married one, became disqualified to inherit the throne. This had the effect of deposing the remaining descendants ofCharles I, other than his Protestant granddaughterAnne, as the next Protestant in line to the throne wasSophia of Hanover. Born into theHouse of Wittelsbach, she was a granddaughter ofJames VI and I from his most junior surviving line,[d] with the crowns descending only to her non-Catholic heirs. Sophia died less than two months before Queen Anne, and Sophia's son succeeded to the throne asKing George I, starting theHanoverian dynasty in Britain.
TheAct of Supremacy 1558 (1 Eliz. 1. c. 1) had confirmed the independence of theChurch of England fromRoman Catholicism under the English monarch. One of the principal factors which contributed to theGlorious Revolution was the perceived assaults made on the Church of England by KingJames II, a Roman Catholic, who was deposed in favour of his Protestant daughterMary II and her husbandWilliam III. The need for this Act of Settlement was prompted by the inability of William and Mary, as well as of Mary's Protestant sister (the future Queen Anne), to produce any surviving children, and by the perceived threat posed by the pretensions to the throne by remaining Roman Catholic members of theHouse of Stuart.
The act played a key role in the formation of theKingdom of Great Britain as, though England and Scotland hadshared a monarch since 1603, they had remained separately governed countries, with the Act catalysing theUnion of England and Scotland. However, theParliament of Scotland was more reluctant to abandon the House of Stuart, members of which had beenScottish monarchs long before they became English. Moreover, the Act also placed limits on both the role of foreigners in the British government and the power of the monarch with respect to the Parliament of England, though some of those provisions have been altered by subsequent legislation.
Along with theBill of Rights 1689, the Act of Settlement remains today one of the main constitutional laws governing thesuccession not only to thethrone of the United Kingdom, but to those of the otherCommonwealth realms, whether by assumption or bypatriation.[5] The Act of Settlement cannot be altered in any realm except by that realm's own parliament and, byconvention, only with the consent of all the other realms, as it touches on the succession to theshared crown.[6] On 26 March 2015, following thePerth Agreement, legislation amending the Act came into effect across the Commonwealth realms that removed the disqualification arising from marriage to a Roman Catholic and institutedabsolute primogeniture.
Following theGlorious Revolution, the line of succession to the English throne was governed by theBill of Rights 1689, which declared that the flight ofJames II from England to France during the revolution amounted to anabdication of the throne and that James's daughterMary II and her husband/cousin,William III (William of Orange, who was also James's nephew), were James's successors. The Bill of Rights also provided that the line of succession would go through Mary's Protestant descendants by William and any possible future husband should she outlive him, then through Mary's sisterAnne and her Protestant descendants, and then to the Protestant descendants of William III by a possible later marriage should he outlive Mary. During the debate, the House of Lords had attempted to append Sophia and her descendants to the line of succession, but the amendment failed in the Commons.[7]
Mary II died childless in 1694, after which William III did not remarry. In 1700,Prince William, Duke of Gloucester, who was Anne's only child to survive infancy, died of what may have beensmallpox at the age of 11.[8] Thus, Anne was left as the only person in line to the throne. The Bill of Rights excluded Catholics from the throne, which ruled out James II and his children (as well as their descendants) sired after he converted to Catholicism in 1668. However, it did not provide for the further succession after Anne. Parliament thus saw the need to settle the succession on Sophia and her descendants, and thereby guarantee the continuity of the Crown in the Protestant line.
With religion and lineage initially decided, the ascendancy of William of Orange in 1689 would also bring his partiality to his Dutchfavourites that followed. By 1701,anti-Dutch sentiment was widespread in England and action was considered necessary.[9]
The Act of Settlement provided that the throne would pass to theElectress Sophia of Hanover – a granddaughter ofJames VI and I and a niece ofKing Charles I – and her descendants, but it excluded "for ever" "all and every Person and Persons who ... is are or shall be reconciled to or shall hold Communion with theSee orChurch of Rome or shall profess the Popish Religion or shall marry a Papist". Thus, those who were Roman Catholics, and those who married Roman Catholics, were barred from ascending the throne.
The act contained eight additional provisions that were to only come into effect upon the death of both William and Anne:[10]
Firstly, the monarch "shall join in communion with theChurch of England". This was intended to ensure the exclusion of a Roman Catholic monarch. Along with James II's perceived despotism, his religion was the main cause of the Glorious Revolution, and of the previous linked religious and succession problems which had been resolved by the joint monarchy of William III and Mary II.
Second, if a person not native to England comes to the throne, England will not wage war for "any dominions or territories which do not belong to the Crown of England, without the consent of Parliament". This would become relevant when a member of theHouse of Hanover ascended the British throne, as he would retain the territories of theElectorate of Hanover in what is nowLower Saxony (Germany), then part of theHoly Roman Empire. This provision has been dormant sinceQueen Victoria ascended the throne, because she did not inherit Hanover under theSalic Laws of the German-speaking states.
Third, no monarch may leave "the dominions ofEngland,Scotland, orIreland", without the consent of Parliament. This provision was repealed in 1716, at the request ofGeorge I who was also theElector of Hanover and Duke ofBrunswick-Lüneburg within theHoly Roman Empire; because of this, and also for personal reasons, he wished to visit Hanover from time to time.[11]
Fourth, all government matters within the jurisdiction of thePrivy Council were to be transacted there, and all council resolutions were to be signed by those who advised and consented to them. This was because Parliament wanted to know who was deciding policies, as sometimes councillors' signatures normally attached to resolutions were absent. This provision was repealed early in Queen Anne's reign, as many councillors ceased to offer advice and some stopped attending meetings altogether.[11]
Fifth, no foreigner ("no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging"), even if naturalised or made adenizen (unless born of English parents), can be a Privy Councillor or a member of either House of Parliament, or hold "any Office or Place of Trust, either Civill [sic] or Military, or to [sic] have any Grant of Lands, Tenements or Hereditaments from the Crown, to himself or to any other or others in Trust for him".[9] Subsequent nationality laws (today primarily theBritish Nationality Act 1981) made naturalised citizens the equal of those native born, and excluded Commonwealth citizens from the definition of foreigners, and citizens of the Irish Republic from the definition of aliens, but otherwise this provision still applies. It has however been disapplied in particular cases by a number of other statutes.
Sixth, no person who has an office under the monarch, or receives a pension from the Crown, was to be a Member of Parliament. This provision was inserted to avoid unwelcome royal influence over the House of Commons. It remains in force, but with several exceptions; ministers of the Crown were exempted early on before Anne's death in order to continue some degree of royal patronage, buthad to stand for a by-election to re-enter the House upon such appointment until 1926. As a side effect, this provision means that members of the Commons seeking to resign from parliament can get around theprohibition on resignation by obtaining asinecure in the control of the Crown; while several offices have historically been used for this purpose, two are currently in use: appointments generally alternate between the stewardships of theChiltern Hundreds and of theManor of Northstead.[12]
Seventh, judges' commissions are validquamdiu se bene gesserint (during good behaviour) and if they do not behave themselves, they can be removed only by both Houses of Parliament (or in other Commonwealth realms the one House of Parliament, depending on the legislature's structure). This provision was the result of various monarchs influencing judges' decisions, and its purpose was to assurejudicial independence. Thispatent was used prior to 1701 but did not preventCharles I from removing SirJohn Walter asChief Baron of the Exchequer.
Eighth, that "no Pardon under theGreat Seal of England be pleadable to an Impeachment by the Commons in Parliament". This meant in effect that no pardon by the monarch was to save someone from beingimpeached by the House of Commons.
TheTory administration that replaced theWhig Junto in 1699 took responsibility for steering the Act through Parliament. As a result, it passed with little opposition, although five peers voted against it in the House of Lords, including theEarl of Huntingdon, his brother-in-law theEarl of Scarsdale and three others.[13] While many shared their opposition to a "foreign" king, the general feeling was summed up as "better a German prince than a French one".[14]
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For different reasons, variousconstitutionalists have praised the Act of Settlement:Henry Hallam called the Act "the seal of our constitutional laws" andDavid Lindsay Keir placed its importance above the Bill of Rights of 1689.[15] Naamani Tarkow wrote: "If one is to make sweeping statements, one may say that, saveMagna Carta (more truly, its implications), the Act of Settlement is probably the most significant statute in English history".[16]
The Act of Settlement was, in many ways, the major cause of theunion of Scotland with England and Wales to form theKingdom of Great Britain. TheParliament of Scotland had not been consulted about the Act of Settlement,[17] and, in response, passed theAct of Security 1704, through which Scotland reserved the right to choose its own successor toQueen Anne. Stemming from this, the Parliament of England decided that, to ensure the stability and future prosperity of Great Britain, full union of the two parliaments and nations was essential before Anne's death.
It used a combination of exclusionary legislation (theAlien Act 1705), politics, andbribery to achieve this within three years under theAct of Union 1707. This success was in marked contrast to the four attempts at political union between 1606 and 1689, which all failed owing to a lack of political will in both kingdoms. By virtue of Article II of theTreaty of Union, which defined the succession to the throne of Great Britain, the Act of Settlement became part ofScots law as well.
In addition to excludingJames II, who died a few months after the act received royal assent, and his Roman Catholic children,Prince James (The Old Pretender) and thePrincess Royal, the Act also excluded the descendants of PrincessHenrietta, the youngest sister of James II. Henrietta's daughter wasAnne, Queen of Sardinia, a Roman Catholic, from whom descend allJacobite pretenders after 1807.
With the legitimate descendants ofCharles I either childless (in the case of his two grand-daughters the late QueenMary II and her successor QueenAnne) or Roman Catholic, Parliament's choice was limited to Sophia of Hanover, the Protestant daughter of the lateElizabeth of Bohemia, the only other child ofKing James I to have survived childhood. Elizabeth had borne nine children who reached adulthood, of whomSophia was the youngest daughter. However in 1701 Sophia was the senior Protestant one, therefore with a legitimate claim to the English throne; Parliament passed over her Roman Catholic siblings, namely her sisterLouise Hollandine of the Palatinate, and their descendants, who includedElizabeth Charlotte, Duchess of Orléans;Louis Otto, Prince of Salm, and his aunts;Anne Henriette, Princess of Condé, andBenedicta Henrietta, Duchess of Brunswick-Lüneburg.
Since the act's passing the most senior living member of the royal family to have married a Roman Catholic, and thereby to have been removed from the line of succession, isPrince Michael of Kent, who marriedBaroness Marie-Christine von Reibnitz in 1978; he was fifteenth in the line of succession at the time. He was restored to the line of succession in 2015 when theSuccession to the Crown Act 2013 came into force, and became 34th in line.[18]
The next most senior living descendant of the Electress Sophia who had been ineligible to succeed on this ground isGeorge Windsor, Earl of St Andrews, the elder son ofPrince Edward, Duke of Kent, who married the Roman CatholicSylvana Palma Tomaselli in 1988. His son,Lord Downpatrick, converted to Roman Catholicism in 2003 and is the most senior descendant of Sophia to be barred as a result of his religion. In 2008 his daughter,Lady Marina Windsor, also converted to Catholicism and was removed from the line of succession. More recently,Peter Phillips, the son ofAnne, Princess Royal, and eleventh in line to the throne, marriedAutumn Kelly; Kelly had been brought up as a Roman Catholic, but she converted toAnglicanism prior to the wedding. Had she not done so, Phillips would have forfeited his place in the succession upon their marriage, only to have it restored in 2015.
Excluding those princesses who have married into Roman Catholic royal families, such asMarie of Edinburgh,Victoria Eugenie of Battenberg andPrincess Beatrice of Edinburgh, one member of the Royal Family (that is, with the style ofRoyal Highness) has converted to Roman Catholicism since the passage of the Act: theDuchess of Kent, wife ofPrince Edward, Duke of Kent, who converted on 14 January 1994, but her husband did not lose his place in the succession because she was an Anglican at the time of their marriage.[19]
As well as being part of the law of the United Kingdom, the Act of Settlement was received into the laws of all the countries and territories over which the British monarch reigned. It remains part of the laws of the 15Commonwealth realms and the relevant jurisdictions within those realms. In accordance with established convention, theStatute of Westminster 1931 and later laws, the Act of Settlement (along with the other laws governing the succession of the Commonwealth realms) may only be changed with the agreement of all the realms (and, in some federal realms, the constituent members of those federations). TheSuccession to the Crown Act 2013 changed many provisions of this Act.
Challenges have been made against the Act of Settlement, especially its provisions regarding Roman Catholics andpreference for males. However, changing the act is a complex process, since the act governs the shared succession of all theCommonwealth realms. TheStatute of Westminster 1931 acknowledges by established convention that any changes to the rules of succession may be made only with the agreement of all of the states involved, with concurrent amendments to be made by each state's parliament or parliaments. Further, as the current monarch's eldest child and, in turn, his eldest child, are Anglican males, any change to the succession laws would have no immediate implications. Consequently, there was little public concern with the issues and debate had been confined largely to academic circles until the November 2010 announcement thatPrince William was to marry. This raised the question of what would happen if he were to produce first a daughter and then a son.
The Times reported on 6 November 1995 thatPrince Charles had said on that day toTony Blair andPaddy Ashdown that "Catholics should be able to ascend to the British throne". Ashdown claimed the Prince said: "I really can't think why we can't have Catholics on the throne".[20] In 1998, during debate on aSuccession to the Crown Bill, Junior Home Office MinisterLord Williams of Mostyn informed theHouse of Lords that the Queen had "no objection to the Government's view that in determining the line of succession to the throne, daughters and sons should be treated in the same way."[21]
In October 2011 theAustralian federal government was reported to have reached an agreement with all ofthe states on potential changes to their laws in the wake of amendments to the Act of Settlement.[22] The practice of the Australian states—for example, New South Wales and Victoria[23][24]—has been, when legislating to repeal some imperial statutes so far as they still applied in Australia, to provide that imperial statutes concerning the royal succession remain in force.
The legal process required at the federal level remains, theoretically, unclear. TheAustralian constitution, as was noted during the crisis of 1936, contains no power for the federal parliament to legislate with respect to the monarchy.[25] Everything thus turns upon the status and meaning of clause 2 in the Commonwealth of Australia Constitution Act 1900, which provides: "The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom."[26]
Anne Twomey reviews three possible interpretations of the clause.[25]
However, Twomey expresses confidence that, if theHigh Court of Australia were to be faced with the problems of covering clause 2, it would find some way to conclude that, with regard to Australia, the clause is subject solely to Australian law.[27] Canadian scholar Richard Toporoski theorised in 1998 that "if, let us say, an alteration were to be made in the United Kingdom to the Act of Settlement 1701, providing for the succession of the Crown... [i]t is my opinion that the domestic constitutional law of Australia or Papua New Guinea, for example, would provide for the succession in those countries of the same person who became Sovereign of the United Kingdom."[5]
In practice, when legislating for the Perth Agreement (see below), the Australian governments took the approach of the states requesting, and referring power to, the federal government to enact the legislation on behalf of the states (under paragraph 51(xxxviii) of the Australian Constitution) and the Commonwealth of Australia.
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In Canada, where the Act of Settlement (French:Acte d'établissement) is now a part ofCanadian constitutional law,Tony O'Donohue, a Canadian civic politician, took issue with the provisions that exclude Roman Catholics from the throne, and which make themonarch of Canada theSupreme Governor of the Church of England, requiring him or her to be anAnglican. This, he claimed, discriminated against non-Anglicans, including Catholics, who are the largest faith group in Canada.[28] In 2002, O'Donohue launcheda court action that argued the Act of Settlement violated theCanadian Charter of Rights and Freedoms, but, the case was dismissed by the court.[29] It found that, as the Act of Settlement is part of the Canadian constitution, the Charter of Rights and Freedoms, as another part of the same constitution, does not have supremacy over it. Also, the court noted that, while Canada has the power to amend the line of succession to the Canadian throne, the Statute of Westminster stipulates that the agreement of the governments of the fifteen other Commonwealth realms that share the Crown would first have to be sought if Canada wished to continue its relationship with these countries. An appeal of the decision was dismissed on 16 March 2005.[30] Some commentators state that, as a result of this, any single provincial legislature could hinder any attempts to change this Act, and by extension, to the line of succession for the shared crown of all 16 Commonwealth realms.[31][32][33][34][35] Others contend that that is not the case, and changes to the succession instituted by an Act of theParliament of Canada "[in accord] with the convention of symmetry that preserves the personal unity of the British and Dominion Crowns".[36]
With the announcement in 2007 of theengagement ofPeter Phillips toAutumn Kelly, a Roman Catholic and a Canadian, discussion about the Act of Settlement was revived.Norman Spector called inThe Globe and Mail forPrime MinisterStephen Harper to address the issue of the Act's bar on Catholics, saying Phillips' marriage to Kelly would be the first time the provisions of the Act would bear directly on Canada—Phillips would be barred from acceding to the Canadian throne because he married a Roman Catholic Canadian.[28] (In fact,Lord St Andrews had already lost his place in the line of succession when he married the Roman Catholic CanadianSylvana Palma Tomaselli in 1988. But St Andrews' place in the line of succession was significantly lower than Phillips'.) Criticism of the Act of Settlement due to the Phillips–Kelly marriage was muted when Autumn Kelly converted to Anglicanism shortly before her marriage, thus preserving her husband's place in the line of succession.
From time to time there has been debate over repealing the clause that prevents Roman Catholics, or those who marry one, from ascending to the British throne. Proponents of repeal argue that the clause is a bigoted anachronism;Cardinal Winning, who was leader of the Roman Catholic Church inScotland, called the act an "insult" to Catholics.Cardinal Murphy-O'Connor, the leader of the Roman Catholic Church in England, pointed out that Prince William (later the Duke of Cambridge) "can marry by law aHindu, aBuddhist, anyone, but not a Roman Catholic."[37] Opponents of repeal, such asEnoch Powell andAdrian Hilton, believe that it would lead to the disestablishment of the Church of England as the state religion if a Roman Catholic were to come to the throne. They also note that the monarch must swear to defend the faith and be a member of theAnglican Communion, but that a Roman Catholic monarch would, like all Roman Catholics, owe allegiance to the Pope. This would, according to opponents of repeal, amount to a loss of sovereignty for the Anglican Church.
When in December 1978 there was media speculation thatPrince Charles might marry a Roman Catholic, Powell defended the provision that excludes Roman Catholics from ascending the throne, stating his objection was not rooted in religious bigotry but in political considerations. He said a Roman Catholic monarch would mean the acceptance of a source of authority external to the realm and "in the literal sense, foreign to theCrown-in-Parliament ... Between Roman Catholicism androyal supremacy there is, as SaintThomas More concluded, no reconciliation." Powell concluded that a Roman Catholic crown would be the destruction of the Church of England because "it would contradict the essential character of that church."
He continued:
WhenThomas Hobbes wrote that "the Papacy is no other than the ghost of the deceasedRoman Empire sitting crowned upon the grave thereof", he was promulgating an enormously important truth. Authority in the Roman Church is the exertion of thatimperium from which England in the 16th century finally and decisively declared its national independence as thealter imperium, the "other empire", of whichHenry VIII declared "This realm of England is an empire" ... It would signal the beginning of the end of the British monarchy. It would portend the eventual surrender of everything that has made us, and keeps us still, a nation.[38]
TheScottish Parliament unanimously passed a motion in 1999 calling for the complete removal of any discrimination linked to the monarchy and the repeal of the Act of Settlement.[39] The following year,The Guardian challenged the succession law in court,[40] claiming that it violated theEuropean Convention on Human Rights, which provides,
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.
As the Convention nowhere lists the right to succeed to the Crown as a human right, the challenge was rejected.
Adrian Hilton, writing inThe Spectator in 2003, defended the Act of Settlement as not "irrational prejudice or blind bigotry", but claimed that it was passed because "the nation had learnt that when a Roman Catholic monarch is upon the throne, religious and civil liberty is lost." He points to the Pope's claiming universal jurisdiction, and Hilton argues that "it would be intolerable to have, as the sovereign of a Protestant and free country, one who owes any allegiance to the head of any other state" and contends that, if such situation came about, "we will have undone centuries of common law." He said that because the Roman Catholic Churchdoes not recognise the Church of England as an apostolic church, a Roman Catholic monarch who abided by their faith's doctrine would be obliged to view Anglican andChurch of Scotland archbishops, bishops, and clergy as part of the laity and therefore "lacking the ordained authority to preach and celebrate the sacraments." (Hilton noted that the Church of Scotland'sPresbyterian polity does not include bishops or archbishops.) Hilton said a Roman Catholic monarch would be unable to be crowned by theArchbishop of Canterbury and notes that other European states have similar religious provisions for their monarchs: Denmark, Norway, and Sweden, whose constitutions compel their monarchs to beLutherans; the Netherlands, which has a constitution requiring its monarchs be members of the ProtestantHouse of Orange; and Belgium, which has a constitution that provides for the succession to be through Roman Catholic houses.[41]
In December 2004, a private member's bill—theSuccession to the Crown Bill—was introduced in the House of Lords. The government, headed byTony Blair, blocked all attempts to revise the succession laws, claiming it would raise too many constitutional issues and it was unnecessary at the time. In theBritish general election the following year,Michael Howard promised to work towards having the prohibition removed if theConservative Party gained a majority of seats in the House of Commons, but the election was won by Blair'sLabour Party. Four years later, plans drawn up byChris Bryant were revealed that would end the exclusion of Catholics from the throne and end the doctrine of male-preferenceprimogeniture in favour of absolute primogeniture, which governs succession solely on birth order and not on sex.[42] The issue was raised again in January 2009, when a private member's bill to amend the Act of Succession was introduced in parliament.
In early 2011Keith Vaz, aLabour Member of Parliament, introduced to the House of Commons at Westminster aprivate member's bill which proposed that the Act of Settlement be amended to remove the provisions relating to Roman Catholicism and change the primogeniture governing the line of succession to the British throne frommale-preference toabsolute cognatic. Vaz sought support for his project from the Canadian Cabinet andPrime MinisterStephen Harper, but theOffice of the Prime Minister of Canada responded that the issue was "not a priority for the government or for Canadians without further elaboration on the merits or drawbacks of the proposed reforms".Stephenson King,Prime Minister of Saint Lucia, said he supported the idea and it was reported that the government of New Zealand did, as well.[43] TheMonarchist League of Canada said at the time to the media that it "supports amending the Act of Settlement in order to modernize the succession rules."[44]
Later the same year, the Deputy Prime Minister of the United Kingdom,Nick Clegg, announced that the government was considering a change in the law.[45][46] At approximately the same time, it was reported that British Prime MinisterDavid Cameron had written to each of the prime ministers of the other fifteen Commonwealth realms, asking for their support in changing the succession to absolute primogeniture and notifying them he would raise his proposals atthat year's Commonwealth Heads of Government Meeting (CHOGM) inPerth, Australia.[47] Cameron reportedly also proposed removing the restriction on successors being or marrying Roman Catholics; however, potential Roman Catholic successors would be required to convert to Anglicanism prior to acceding to the throne. In reaction to the letter and media coverage, Harper stated that, this time, he was "supportive" of what he saw as "reasonable modernizations".[48]
At the2011 Commonwealth Heads of Government Meeting on 28 October 2011, the prime ministers of the other Commonwealth realms agreed to support Cameron's proposed changes to the Act.[49][50][51] The bill put before the Parliament of the United Kingdom would act as a model for the legislation required to be passed in at least some of the other realms, and any changes would only first take effect if theDuke of Cambridge were to have a daughter before a son.[22][52][53]
The British groupRepublic asserted that succession reform would not make the monarchy any less discriminatory.[49] As it welcomed the gender equality reforms, the British newspaperThe Guardian criticized the lack of a proposal to remove the ban on Catholics sitting on the throne,[54] as didAlex Salmond, First Minister of Scotland, who pointed out that "It is deeply disappointing that the reform [of the Act of Settlement of 1701] has stopped short of removing the unjustifiable barrier on a Catholic becoming monarch."[39] On the subject, Cameron asserted: "Let me be clear, the monarch must be in communion with the Church of England because he or she is thehead of that Church."[39]
The disqualification arising from marriage to a Roman Catholic was removed by theSuccession to the Crown Act 2013.[55]
