Some Comments on the Royal Succession

Update: The Succession to the Crown Bill is now up on the UK Parliament website.

Now that a new Royal heir is apparently well on its way, the 'British' Commonwealth looks increasingly likely to adopt reforms to the terms of the Royal Succession that would see male preference primogeniture replaced by equal primogeniture, and in passing, nullify the provisions of the Act of Settlement that bar Catholics, and the spouses of Catholics, from the succession to the throne.  This has been mooted many times before but it appears that, with ‘Kate’ now actually pregnant, the British government is now determined more than ever not to announce an eventual daughter’s place in the succession order many rungs down vs. the certainty of third in line, as a son would become.

As the Queen is independently sovereign of the several independent Commonwealth realms that maintain Her as ‘head of state’ (strictly not a correct phraseology) any such changes to the succession must be agreed to by the Parliaments of all.

It is an interesting reminder of three things about our system.

First, that the Crown is entirely subordinate to Parliament.  This fact is quite often reflected in legislation with terms to the effect of: ‘The Provisions of this Act shall be binding upon Her Majesty in Right of Canada’ (which actually means that Parliament has decided to afford the government zero discretion or leeway in the application of the law in question.)  But re-defining the succession itself in parliament is the clearest possible reminder that this supremacy extends all the way to the very question of who sits on the throne.

Second, that in our system it actually matters a very great deal that we in fact have a duly-constituted reigning sovereign at all times – after all, the point of clarifying and carefully specifying the succession is to ensure immediate and undisputed continuity at the extreme moments (‘The King is dead, long live the King.’)  Of course the sovereign personally has strictly zero independent or discretionary power in government; but all of the executive, legislative and judicial branches of government legally act on behalf of and/or are empowered by the authority of the Crown, and would cease to be able to function legally without a reigning monarch.  The executive is constituted as a Privy Council to the sovereign, and as such is empowered under law to govern by virtue of the sovereign’s personal right to do so.  Parliament formally if not in fact is convened at the sovereign’s pleasure (observe, the ‘Speech from the Throne’ ritual) and cannot enact legislation without the appendage of Royal Assent as the final step.  The judiciary similarly is constituted as a ‘mechanical’ extension of the sovereign’s prerogative to deliver justice; in the absence of a reigning monarch the courts would lose their legal power to operate.    Statutes in fact define all criminal offences as against the person, dignity, authority or prerogatives of the Crown, including the broad prerogative of ‘keeping peace in the realm.’  A criminal prosecution is conducted in the name of the sovereign personally (R. v. John Doe).  In the same spirit, a declaration of war would be impossible, as in a monarchy ‘the state’ legally and literally equals the sovereign (‘l’Etat c’est moi’) and in consequence a state of war is strictly phrased as a personal matter (‘A state of war exists between His Majesty King George VI, King in Right of Canada, and Germany.’  Sep 10, 1939)  The Armed Forces would lose their legally-empowered commander in chief, and military law strictly speaking would lose its force – officers’ commissions are from the sovereign, and officers’ authority over their men derives directly from the monarch’s.  And in New Zealand and Canada specifically, who knows what the indigenous nations would make of any gap … almost all of them fold in to the authority of the state (to the extent they do) by virtue of various individual treaties personally counter-signed by the Crown, and are construed not only formally but in practice as personal agreements.  The whole thing is reminiscent of the capstone in an elaborate stonework: the capstone itself may be small and innocuous and normally pass without notice, but it ties the entire structure together: remove it, and the whole collapses; and the question then would arise: what manner of edifice will take its place?

Finally, that it is virtually completely inconsequential who the sovereign actually is.  A change is being forced now out of ‘politically correct’ preemptive embarrassment, but the attitude of Canada's PM pretty much captures it – despite being a staunch supporter of the institution, he doesn’t want to waste 10 minutes of parliamentary time on the matter of the succession (or perhaps more accurately, he doesn’t want to be seen to be devoting even 10 minutes of parliamentary time to the matter.)  When this was mooted previously he brushed it aside by pointing out that the matter was pretty much academic for the foreseeable future, as the next two successors would remain the same irrespective of these changes.  At this point he must have assessed that these changes would be almost nodded through the current parliament – he has a majority, and the ‘liberal’ opposition would have a tough time arguing against - so he seems to have decided simply and quickly to say ‘okay.’

 

Walsingham