Act of Settlement: 1701 (British)
FOR MY PERSONAL REFERENCE
- Act of Settlement 1701
- Original context
- Provisions of the act
- Effects of the act
- Kingdom of Great Britain
- Removal from the succession
- The abdication of 1936
- Present status
- Amendment proposals
Act of Settlement 1701
Parliament of England
|Long title||An Act for the further Limitation of the Crown and better securing the Rights and Liberties of the Subject|
|Statute book chapter||12 and 13 Will III c 2|
|Territorial extent|| Kingdom of England(1705–07)
Kingdom of Great Britain (1707–1800)
United Kingdom of Great Britain and Ireland(1801–1922)
British Empire (1877–present)
United Kingdom of Great Britain and Northern Ireland (1922–present)
|Royal Assent||June 1701|
|Amendments||British Nationality Act 1948
British Nationality and Status of Aliens Act 1914
Statute Law Revision and Civil Procedure Act 1881
Short Titles Act 1896
|Status: Current legislation|
|Revised text of statute as amended|
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on theElectress Sophia of Hanover (a granddaughter of James I) and herProtestant heirs. The act was later extended to Scotland, as a result of theTreaty of Union (Article II), enacted in the Acts of Union 1707 before it was ever needed. Along with the Bill of Rights 1689, it remains today one of the main constitutional laws governing the succession to not only the throne of the United Kingdom, but, following British colonialism, the resultant doctrine of reception, and independence, also to those of the other Commonwealth realms, whether by willing deference to the act as a British statute or as apatriated part of the particular realm’s constitution. Since the implementation of the Statute of Westminster 1931 in each of the Commonwealth realms (on successive dates from 1931 onwards), the Act of Settlement cannot be altered in any realm except by that realm’s own parliament and, by convention, only with the consent of all the other realms, as it touches on the succession to the shared throne.
Following the Glorious Revolution, the line of succession to the English throne was governed by the Bill of Rights 1689, which declared that the flight of James II from England to France during the revolution amounted to an abdication of the throne and that James’ son-in-law,[clarification needed]William of Orange, and his wife, James’ daughter, Mary, were James’ successors, who ruled jointly as William III and Mary II. The Bill of Rights also stated that the line of succession would go through their descendants, then through Mary’s sisterPrincess Anne, and her descendents, and then to the issue of William III by a later marriage (if he were to marry again after the death of Mary II).
However, Mary II died childless in 1694, after which William III did not remarry, and Princess Anne’s last surviving child, Prince William, Duke of Gloucester, died six years later, after which it was unlikely she would have any more children due to her age and the large number of miscarriages she had previously suffered. Thus, there was seen a need for a new law that would ensure the continuance of the succession following the death of the last legal heir under the Bill of Rights, being Princess Anne, guaranteeing the line of succession would continue in the Protestant line, and excluding any possible claims by the deposed James II or his son and daughter, James Francis Edward and Louisa Maria Teresa Stuart. The Act of Settlement was thus passed and granted Royal Assent in June 1701.
Provisions of the act
The Act of Settlement provided that the throne would pass to the Electress Sophia of Hanover – a granddaughter of James VI of Scotland and I of England, niece ofCharles I of Scotland and England – and her Protestant descendants who had not married a Roman Catholic; those who were Roman Catholic, and those who married a Roman Catholic, were barred from ascending the throne “for ever”. Eight further provisions of the act would only come into effect upon the death of both William and Anne:
- The monarch “shall join in communion with the Church of England.” This was another provision to avoid a Roman Catholic monarch. Along with James II’s perceived despotism, his religion was the main cause of the Glorious Revolutionof 1688, and the previous linked religious and succession problems solved by the joint monarchy of William and Mary.
- 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 was farsighted, because when the House of Hanover ascended the British throne they would retain the territories that became the Kingdom of Hanover (situated in modern-day Germany‘s Lower Saxony). This provision has been dormant since Queen Victoria ascended the throne, because she did not inherit Hanover under the Salic Laws of the German states, but in principle it could again become relevant in the future.
- No monarch may leave “the dominions of England, Scotland, or Ireland,” without the consent of Parliament. This provision was repealed in 1716, at the request of George I, who was also the Elector of Hanover and Duke of Brunswick-Lüneburg of the Holy Roman Empire, and so frequently needed and wanted to stay in Hanover.
- All government matters within the jurisdiction of the Privy 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.
- No foreigner, even if naturalised (unless they were born of English parents), shall be allowed to be a Privy Councillor or a member of either House of Parliament, or hold “any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown, to himself or to any other or others in trust for him.” As a result of subsequent nationality laws, this provision does not apply to naturalised citizens in any Commonwealth Realm.[vague]
- No person who has an office under the monarch, or receives a pension from the Crown, can be a Member of Parliament (MP). This provision was inserted to avoid unwelcome royal influence over the House of Commons. It remains in force, but with several exceptions. (As a side effect, this provision means that MPs seeking to resign from parliament can get around the age-old prohibition on resignation by obtaining a low-salary sinecure in the pay of the Crown; while several offices have been used for this purpose, two are currently in use. Appointments generally alternate between the Stewardships of the Chiltern Hundreds and the Manor of Northstead.)
- Judges’ commissions are valid quamdiu se bene gesserint (during good behaviour), and if they do not behave themselves they can be removed only by both Houses of Parliament, or the one House of Parliament, depending on the legislature’s structure. This provision was the result of various monarchs’ influencing judges’ rulings, and it assured nearly full judicial independence.
- No pardon by the monarch can save someone from being impeached by the House of Commons.
Effects of the act
For different reasons, various constitutionalists have praised the Act of Settlement: Henry Hallam called the act in the United Kingdom “the seal of our constitutional laws” and David Lindsay Keir placed its importance above the Bill of Rights 1689. Naamani Tarkow has written: “If one is to make sweeping statements, one may say that, save Magna Carta (more truly, its implications), the Act of Settlement is probably the most significant statute in English history”.
Kingdom of Great Britain
The Act of Settlement was, in many ways, the major cause of the union ofScotland with England and Wales to form the Kingdom of Great Britain. TheParliament of Scotland was not happy with the Act of Settlement and, in response, passed the Act of Security in 1704, through which Scotland reserved the right to choose its own successor to Queen 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 and used a combination of exclusionary legislation (the Alien Act of 1705), politics, and bribery to achieve it within three years under the Act of Union 1707. This 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 the Treaty of Union, which defined the succession to the throne of Great Britain, the Act of Settlement became part of Scots Law as well.
Removal from the succession
Since the passage of the Act of Settlement, the most senior member of the Royal Family to have married a Roman Catholic, and thereby been removed from the line and later lines of succession, is Prince Michael of Kent, who married Baroness Marie-Christine von Reibnitz in 1978; he was fifteenth in the lines of succession at the time of his marriage. The current most senior living descendant of the Electress Sophia who is ineligible to succeed due to the act is George Windsor, Earl of St Andrews, the eldest son of Prince Edward, Duke of Kent, who married the Roman Catholic Sylvana Palma Tomaselli in 1988; he would now be 25th in the lines of succession if he had not lost his place. 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 own religion. More recently, Peter Phillips, son of Anne, Princess Royal, and eleventh in line to the thrones, married Autumn 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.
Excluding those princesses who have married into overseas Roman Catholic royal families, only one member of the Royal Family (that is, with the style of Royal Highness) has converted to Roman Catholicism since the passage of the act: theDuchess of Kent, wife of Prince Edward, Duke of Kent. The Duchess converted to Roman Catholicism on 14 January 1994, but her husband did not lose his place in the succession, as the Duchess had been an Anglican at the time of their marriage. The act does not concern itself with wives who later change their religious allegiance. In December 1978, there was media speculation that Prince Charles, Prince of Wales, might marry a Roman Catholic, although the rumours were never verified.
The abdication of 1936
Under the Act of Settlement, male-preference primogeniture succession of an Anglican legitimate descendant of the Electress Sophia is automatic and immediate, neither depending on, nor waiting for, any proclamation. Thus, during theabdication crisis of 1936, caused by Edward VIII‘s desire to marry Wallis Simpson, the consent of all realms concerned, along with, in some cases, new acts of parliament, was required in Britain and throughout the British Dominions to allow for Edward’s stepping aside and to ensure that if he had any children they would have no claim to the thrones. In the United Kingdom, His Majesty’s Declaration of Abdication Act was, with the consent of the Australian, Canadian, New Zealand, and South African governments, passed through parliament and the Crown thus passed to the next-in-line descendant of Sophia: Edward’s brother, Prince Albert, Duke of York. The Irish Free State, whose consent to the Abdication Act was also required, neither gave it nor allowed the British legislation to take effect in the Free State’s jurisdiction; instead, the Irish parliament passed its own Act—the Executive Authority (External Relations) Act—the day after the Declaration of Abdication Act took force elsewhere, meaning Edward VIII, for one day, remained King of Ireland while George VI was king of all the other realms. To formalise its government’s consent to the abdication, the Canadian parliament passed, the following year, the Succession to the Throne Act (1 Geo. VI, c.16), and South Africa took a similar course of action.
In the Australian Capital Territory, the Act of Settlement was, on 11 May 1989, converted, from an act of the Parliament of England into an ACT enactment, by section 34(4) of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth), and then renamed The Act of Settlement 1700 by the Legislation Act 2001.
Challenges have been made against the Act of Settlement, especially its provisions regarding Roman Catholics andpreference for males. However, legislating for alterations to the Act is a complex process, since the act is a common denominator in the shared succession of all the Commonwealth realms and the Statute of Westminster 1931acknowledges 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 is a woman and both her 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, in November 2010, the announcement that Prince 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 that Prince Charles had stated on that day to Tony Blair and Paddy Ashdown, after the funeral of Israeli prime minister Yitzhak Rabin, 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”. In 1998, during debate on a Succession to the Crown Bill, Junior Home Office Minister Lord Williams of Mostyn informed the House 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”.