Act of Settlement: a nakedly discriminatory law

Defenders of 1701 act barring Catholics from throne say its abolition would cause UK constitution to unravel

The Act of Settlement of 1701, which bars Catholics from the throne – or marrying the monarch, or princes in the line of succession – has become an increasing source of contention, with a series of attempts to abolish such a nakedly discriminatory law.

It was passed in the political turmoil that followed the so-called glorious revolution of 1688, during which the last Catholic king, James II, fled the country, and was aimed at safeguarding the Protestant succession and constitutional parliamentary settlement from what was regarded as a foreign despotism. Thus: "All and every person and persons that then were or afterwards should be reconciled to, or shall hold communion with the see or Church of Rome, or should profess the popish religion, or marry a papist, should be excluded and … made forever incapable to inherit, possess, or enjoy the crown and government of this realm and Ireland and the dominions thereto."

Instead, since it appeared unlikely that James's Dutch replacement, William of Orange (who died the following year), would bear a legitimate heir – nor ultimately did his successor Queen Anne – the act decreed that the succession should descend through "the most excellent" and safely Protestant Princess Sophia, electress of Hanover, "and the heirs of her body, being Protestants". That indeed came to pass when her son, who became George I, was offered the throne in 1714.

It has been a long time since any but the most conservative of churchmen has defended the equitability of the legislation, though attempts to reform or remove it have so far foundered on a lack of parliamentary time and inclination – or urgency.

Opponents of abolition, such as the current Bishop of Winchester, have instead argued that such a move would begin the unravelling of the whole constitutional settlement, including the established status of the Church of England. That would be a much more complicated and long drawn-out process of parliamentary reform than just getting rid of one defunct act, and one that would fill parliamentary time for several sessions.

There is an additional reason for inertia: the act also applies in the 16 Commonwealth countries where the British monarch is head of state – from Canada to New Zealand – so each of them would have to separately abolish the legislation.

Nevertheless there have been increasing demands in recent years for the law to be consigned to history. Britain's Catholic cardinals have called for abolition and Michael Howard, the then Tory leader, even promised it before the 2005 election. But Tony Blair, the first prime minister to become a Catholic, steered clear.

Until a member of the royal family with a likelihood of ascending the throne wants to marry a Catholic, there have always seemed more important things to do. It has often been said, however, that if Princes William or Harry were to choose a Catholic bride, the act would be rescinded in an afternoon.

Contributor

Stephen Bates

The GuardianTramp

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