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The Royal Wedding: succession, religion and why the Queen is legally required to consent

Author: ObiterJ |

28 Apr 2011 | 12:52

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Her Majesty The Queen has consented to the marriage of His Royal Highness Prince William of Wales and Catherine Elizabeth Middleton. The marriage is to be celebrated at Westminster Abbey tomorrow (29 April), in a ceremony which will attract worldwide interest.

This consent is a legal requirement set out in the Royal Marriages Act 1772. It appears that King George III considered that his brothers had made unsuitable marriages and that consent to marriages ought therefore to be required. He made a recommendation to that effect. The Parliament of the day considered the matter and, according to the Preamble, was "thoroughly convinced" of the "wisdom and expediency" of the King's recommendation. Despite this wording there was considerable opposition to the Act particularly on the part of William Pitt (Earl of Chatham) and Charles James Fox. The Preamble to the Act states that marriages in the Royal Family are "of the highest importance to the State" and that it is therefore desirable that the reigning Monarch gives consent. The 1772 Act s.1 therefore requires descendants of King George II to have this consent - (there are some exceptions). Section 2 enables a marriage to proceed even without consent but Parliament may then intervene and express "disapprobation."

From time to time, there have been proposals in Parliament to repeal the 1772 Act. These have generally come from either members of the House of Lords or have taken the form of Private Member's Bills. The Labour governments in the period 1997-2010 expressed sympathy with the need for change but took no action to change the law. A recent attempt to change matters was in the 2008-09 Parliamentary Session when the Liberal Democrat MP Dr Evan Harris introduced a bill - see the Parliamentary briefing on Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill.

Succession

The Monarchy is hereditary. Those seeking a republic wish to see the abolition of the monarchy and an elected head of state. That is a distinct argument from the rules of law governing succession to the Crown which are based on the common law principle of male primogeniture. Thus, the eldest son of the reigning monarch will succeed in preference to younger brothers. Daughters come after sons. Basically, this is how freehold interests in land used to be inherited on an intestacy prior to reforms in the property legislation of 1925 - in particular, the Administration of Estates Act 1925.

Deputy Primer Minister Nick Clegg has expressed the view that the law ought to be amended by abolishing the male primogeniture rules so that, for example, if a daughter was born before a son, the daughter would inherit. This idea appears to have been well received by the government in New Zealand.

There is a strong view that the consent of those Commonwealth nations where the Queen is head of state would be needed to amend this law. Prior to World War Two, imperial conferences were held and these make a fascinating study (see National Archives). The outcome of conferences held in 1926 and 1930 was the Statute of Westminster 1931. The unusually lengthy Preamble to this refers to the succession to the Crown and the need to obtain the consent of certain named "Dominions" to changes. The Preamble to an Act does not, strictly speaking, alter the law (Attorney-General v Prince Ernest Augustus of Hanover) but it is at least very persuasive in the interpretation of the Act. Furthermore, the preamble to the 1931 Statute appears to be akin to a treaty between the members of what was the emerging British Commonwealth. Whatever the legal position vis-a-vis Commonwealth Nations, the British Government would seek their views and would probably only act to amend the law if there was a clear consensus favouring change.

(See also the latest Succession to the Crown Bill presented by Keith Vaz MP on 18 January 2011; second reading to be on 13 May.)

Religion

For historical reasons, the person who inherits the throne must not be Roman Catholic and must not marry a Roman Catholic. A number of Acts come into play: the Bill of Rights 1688, the Coronation Oath Act 1688, the Act of Settlement 1700 and Acts of Union with Scotland and with Ireland. (See the fuller discussion in the Parliamentary Briefing paper). Also see the more recent briefing paper - Act of Settlement and the Protestant Succession, 24 January 2011.

In 1688 the Crown was offered by Parliament to William of Orange and Mary. They were Protestant. The links between the Crown and the established Church became embedded in the law after the Act of Settlement 1700. Whether such links should exist in modern multi-religious and multicultural society is a matter which will no doubt have to be addressed at some stage. The general consensus is probably that the law is very out of date and particularly discriminatory. Nevertheless, it is possible to envisage some very difficult issues arising in this area and this perhaps explains the traditional reluctance within governments to address this particular question.

ObiterJ is the author of the Law and Lawyers blog. Click here to follow ObiterJ on Twitter.

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