The almost unchangeable laws of succession

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The Statute of Westminster says that all the Queen's realms neeed to agree to any changes to the laws of succession. According to Lewis Holden, it ain't likely.

Australia did not adopt the 1931 Statute of Westminster until 1942 under John Curtin's leadership

OVER A MONTH AGO, The British Lord McNally rose from the government benches in the House of Lords to claim that New Zealand was chairing discussions about changes to the succession law, specifically with reference to the potential children of Prince William and his future wife Kate (covered by David Donovan here at Independent Australia back in January). Last week, the New Zealand republican movement received a long-awaited response from our Department of the Prime Minister and Cabinet (DPMC), under Official Information Act 1981 – the New Zealand equivalent to the Freedom of Information Act – on the succession question.

It seems Lord McNally was mistaken, or at least discussions are not so much as being "chaired", but our officials are talking to other officials in the Commonwealth. Or so the DPMC said. Their response, predictably terse, is symbolic of the high level of political management directed at the succession law; an apparently trivial issue about who someone may or may not marry, the consequences for them if they do and the gender of their children is of great constitutional import. The resolution of the contradiction these rules pose to modern society is far from clear, and in fact is greatly confused. For republicans, this confusion underpins the succession conundrum: by not reforming the succession, the monarchy is made to look even more absurd and arcane than it already is. But debating changes to the succession opens up the monarchy itself for debate, something monarchists fear. Either way, the proponents of republicanism can only win.

As David explained back in January, Australia (or New Zealand, or Canada) could amend the succession law to suit itself. We're independent in the legal sense—and from a strictly legal point of view it's possible the succession law could be amended by any of the realms. But the monarchy is, of course, shared and this is where it gets confusing. Sharing our head of state necessarily means there has to be some degradation of a nation's independence. For example, while New Zealand could amend its Constitution Act to make the Queen's successor Peter Jackson, doing so would break an important constitutional convention, which says that changes to the laws of succession must essentially be dictated by Britain to its former colonies.

To understand why this is the case, we'll have to go back to 1926. Canada was in the midst of a long-running constitutional crisis. Canada's Governor General, then a British appointee, refused the Prime Minister the chance to go to a federal election to gain a majority, forcing him to resign. The Prime Minister had requested the Governor General ask London for advice on his course of action. However, after appointing the leader of the opposition as Prime Minister, the Governor General found he too could not command the confidence of parliament, failing by one vote to gain the confidence required to form a government. In the subsequent election, the former Prime Minister was returned, and immediately sought "clarification" on the Imperial link. This resulted in the Balfour Declaration of 1926 (not to be confused with the earlier 1917 declaration on Israel) and, following subsequent conferences, the 1931 Statute of Westminster.

British and Dominion Prime Ministers at the 1931 signing of the Statute of Westminster

This was a very important enactment in the creation of the modern Commonwealth.

Essentially, it asserted the sovereign equality of Canada, Australia, New Zealand, the Irish Free State, South Africa and Newfoundland with Great Britain. In doing so, it also introduced an important provision in its preamble affecting the succession:
And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.

This is a very roundabout way of explaining that there's a constitutional convention (note the above provision is part of the statute's preamble) that any changes to the succession are to be decided amongst the states which retain the British monarchy. However, it's only really part of the story. Monarchists like to paint the monarchy as some sort of wonderful internationalist organisation, where the monarch is "shared" between each realm. The fact is the monarch and her family remain resident in the United Kingdom, and are paid for by the British taxpayer. The Queen is, rightly, viewed as the Queen of Great Britain first and foremost. With the help of the British monarchy's website, I calculated that during the Queen's reign, the Queen has only actually "reigned" in the remaining Commonwealth realms for 3% of her 59 year reign, with the Canadians getting the lion’s share of royal tours. The rest of that time was either spent in the UK or representing the UK overseas.

British parliaments expect to be able to change the laws of succession without being hindered by the former colonies. And fair enough too, it's British parliamentarians who have to justify spending millions of pounds on the monarchy to their constituents. Which is why a Canadian republican friend pointed to the fact that Britain has good reason, politically, for New Zealand to be chairing the discussions. If Britain's parliament is seen to be dictating to its former colonies, it can only spark debate about the place of the British monarchy in our constitutions.

They know this from the last time the succession was serious debated, in 1936—just five years after the Statute of Westminster was passed. Then, the Britain's monarchy was plunged into crisis by the abdication of King Edward VIII. At that stage, the statute only applied to Canada, South Africa and the Irish Free State. The governments of Australia, New Zealand and Newfoundland only had to give their consent to the abdication. The Irish Free State's Prime Minister, the previously imprisoned rebel Eamon de Valera – never one to compromise or conform – took the opportunity the abdication afforded the Irish Parliament, and not only passed an act confirming Edward's abdication, but also stripped future British monarchs of all their power.

Sure, there was strong republican sentiment in Ireland long before 1936. But the abdication started the process of declaring Ireland a republic, with a new constitution adopted in 1937, following a referendum, creating a directly-elected President of Ireland. In 1949, the final nail was banged into the coffin, with Ireland's President becoming the undisputed head of state of the Republic. Strangely, the Irish had a president from 1938 –1949, yet they weren't the full head of state as the King in the UK still had that role (a workable compromise perhaps?). At that stage, as a republic, Ireland couldn't be a member of the British Commonwealth. Within weeks of finally attaining republican status the "London Declaration" was made. To ensure the survival of the Commonwealth, it was rebranded as the Commonwealth of Nations and altered to allow republics to become members.

The lesson from the Irish changes is what makes monarchists nervous: open the succession up for debate, and you open up the monarchy itself for debate. You can imagine an attempt to get the Canadian, Australian or New Zealand parliaments to pass an Act of Settlement Amendment Act 2011—or any of the Caribbean states for that matter. In fact, Barbados has actually passed an enactment to allow for a referendum on the issue, it simply requires the Prime Minister set a date for it with the Governor-General. In both Canada and New Zealand, the Act would have to be tested against our respective bills of rights.

Having a Commonwealth member chair the discussions is an attempt to resolve the conundrum, yet that poses problems itself politically. It's hard to see how any of that can be resolved, and so it's safe to say that the succession rules almost certainly will not be changing any time soon.  
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