Tuesday, 26 January 2010

A Catholic Monarch ? The Act of Settlement 1701

There have been a number of stories recently in the Newspapers concerning a
report by the Joint Parliamentary Human Rights Committee which claimed that the current legislation preventing a Catholic from being Monarch and preventing the Monarch from marrying a Catholic is

" contrary to Article 14 European Convention on Human Rights in conjunction with Article 12 and also arguably contrary to the freedom of religion of Catholics protected by Article 9"

well all I can say is what utter rubbish and worrying rubbish considering that it is coming from a Committee that is supposed to consist of Parliamentarians who are supposed to be experts in Human Rights Law.

The problem arises from the Act of Settlement of 1701 which states in Article 111
"whosoever shall hereafter come to the Possession of this Crown shall joyn in Communion with the Church of England as by Law established"
this provision was confirmed by Article 11 of the Union with Scotland Act 1707 (passed by the English Parliament) and Article 11 of the Union with England Act 1707 (passed by the Scottish Parliament) both Acts refer to the requirement that the Monarch shall be a Protestant and reinforce this by the specific requirement that nobody who is, or is married to, a "papist" shall be King or Queen of the United Kingdom.

The reason why I say that the report by the Parliamentary Committee is rubbish is that the Act of Settlement does not prevent anyone from becoming a Catholic or from marrying a Catholic it merely prevents such a person from becoming or remaining King or Queen of the United Kingdom and nowhere in the European Convention on Human Rights is there any provision which gives anyone the right to be King or Queen of the United Kingdom

Article 12 of the Convention says
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 14 says
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.

If (for example) Prince Charles had married a practicing Catholic then under the Act of Settlement he would have lost his place in line of succession to the throne but the Act of Settlement would not have prevented him getting married therefore on what possible basis can it be said that there is any breach of Article 12 ? I repeat the point that nowhere in the European Convention on Human Rights is there any provision which gives anyone the right to be King or Queen of the United Kingdom. Similarly with the suggested breach of Article 14, the case law by the European Court of Human Rights makes it quite clear that Article 14 does not give any "free standing" rights which means that there can only be a breach of Article 14 if there is a breach of one of the other Articles of the Convention. In this case since Article 12 is not breached Article 14 cannot be.

There is similar legal inaccuracy in the suggestion that the Act of Settlement
is "arguably contrary to the freedom of religion of Catholics protected by Article 9".

Article 9 of the Convention says
Everyone has the right to freedom of thought, conscience and religion this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

The suggestion that the Act of Settlement is in breach of Article 9 runs contrary to both the European and UK case law which has restricted freedom of religion to simply being free to have a religion and to practice it privately. See the cases of McClintock, or Ladelle as examples where it is not a breach of Article 9 to insist on particular behaviour as a requirement for holding a particular office.

Since the Monarch of the UK is also head of the (Protestant) Church of England it is quite logical that she has to be "in communion with" the Church of England. Even though the Monarch is specifically prevented by name from being a "papist" in practice the Monarch is also prevented from being a Buddhist, Jew, Muslim, Mormon etc since none of these religions is "in communion" with the Church of England. Since it is a requirement of the job that the monarch be a Protestant Christian, that does not infringe on the freedom of Catholics and others to practice and manifest their religion it merely prevents them being monarch which is not the same thing as a breach of Article 9

As a Catholic you might expect me to support the proposals by the Parliamentary Committee but actually their report really annoys me because it is part of the general, undemocratic tendency to "legalise" political decisions and to tell MP's that they have no choice in the matter. If MP's were to decide themselves that they wanted to amend the Act of Settlement because they felt it was the right thing to do then fine that is a democratic Parliamentary decision but if they merely do it because they are told they have no legal choice in the matter then that is undemocratic and wrong.

As it happens the provisions of the Act of Settlement do not bother me in the slightest. If given the choice between getting rid of the Act of Settlement 1701 or the Equality Bill 2010 I have no hesitation in saying that it is the 2010 Bill which poses a threat to the Religious freedom of Roman Catholics not the 1701 Act

Myths about Catholics and the Monarchy

There has recently been a report published by the Joint Parliamentary Human Rights Committee dealing with the fact that a Catholic cannot be Monarch and I will do a separate Blog on that subject however I will deal here with two myths that constantly resurrect themselves whenever this subject rears its head

MYTH ONE: A Catholic cannot be Prime Minister

There is absolutely NO legal restriction on a Catholic being Prime Minister. Tony Blair helped to give the myth credibility by waiting until he left Number 10 before he became a Catholic but that was his decision and was not because there was any legal problem. Anyway he is now (apparently) a Catholic however I notice that since his conversion he has taken the opportunity to put the Pope right on a few questions of Christian Theology which does tend to make me wonder if he misunderstood Catholic teaching on Papal Infallibility and thought it referred to Prime Ministerial infallibility

MYTH TWO: Changing the Act of Settlement would depose Queen Elizabeth

The purpose of the
Act of Settlement of 1701 was to allow the Royal succession to leapfrog over the next in line to the throne who were Catholics and descended from the Stuart monarchs. It is therefore often suggested that if the Act of Succession was changed this would meant that the Royal Succession would revert to the Stuart line and Prince Franz of Bavaria would become King in place of Queen Elizabeth 2nd. This suggestion is false because of a basic principle of law that the repeal or changing of a statute does not affect the legality of what has happened previously. For example if the law of Inheritance was to be changed that would not affect the property rights of those who inherited under the earlier law. Similarly changing the Act of Settlement would not affect the position of Queen Elizabeth or the rights of Prince Charles or Prince William to succeed her