Act of Settlement
The final item of business today is a members’ business debate on motion S4M-01191, in the name of Jim Eadie, on the Act of Settlement. The debate will conclude without any question being put.
Motion moved,
That the Parliament welcomes the proposed reforms to the laws on succession for the monarchy announced at the Commonwealth Heads of Government Meeting (CHOGM) in Perth, Australia, which will remove discrimination on the grounds of gender and also ensure that in future the monarch will be free to marry a person of the Catholic religion; views with deep disappointment and incredulity the fact that these reforms stop short of ending the bar on a Catholic becoming monarch; believes that the discrimination contained in the Act of Settlement 1701 has no place in modern society; welcomes the work of all groups and organisations tackling discrimination in Edinburgh and across Scotland, and affirms its view that participation in any aspect of national life should not be disbarred on the grounds of religion.
17:14
I thank each of the 31 MSPs who signed the motion in my name and I am grateful for the genuine cross-party support that underpins the debate. I record my appreciation to Labour and Liberal Democrat members, as well as to Scottish National Party colleagues, for their support.
We return this evening to a subject that MSPs have debated before. Back in 1999, it was one Michael Russell who initiated such a debate in the fledgling Scottish Parliament. On that occasion, our Parliament was unanimous in its support for a motion that stated that religious discrimination should have no part in a modern society.
I recall that one of the most eloquent agitators for change in that debate was the Conservative MSP and former minister Lord James Douglas-Hamilton. I recall, too, the spirited efforts of Norman Hogg, the former Labour MP for Cumbernauld and Kilsyth, who raised this matter at Westminster.
The impetus for the debate is, of course, the agreement that was reached at the recent Commonwealth heads of Government meeting in Perth, Australia. That agreement will see amendments to legislation in the United Kingdom and 14 other legal jurisdictions that will allow future monarchs to marry a person of the Catholic religion and will remove the current gender discrimination relating to the line of succession. Both changes are welcome.
However, as the motion states, it is a matter of disappointment that the changes will not go further and sweep away the discrimination that prevents a Catholic from ascending the throne. In fact, the announcement raises the question, if we can find a way to resolve the discrimination against women, and if we can find the will to resolve the discrimination against those who are married to Catholics, why cannot we find the will and the way to end the discrimination against Catholics themselves? I believe that there is a way, if only the United Kingdom Government can summon the political will. The UK Government has an opportunity to act decisively, but it has chosen to act half-heartedly, which is a matter of deep disappointment.
As a nation, we oppose discrimination. We believe that no one should be denied the opportunity to participate in society because of their race or ethnicity, their disability, their gender or sexual orientation, their age or their religion. That principle should inform all the work of the Scottish Parliament and the Scottish Government, as well as that of the UK Parliament and the UK Government.
The member makes the point that the UK Government is unwilling to go down that route. Does he agree that if we were to move towards complete separation of church and state—as I believe we should—that would remove the problem, because the problem is with the Church of England?
I will come to that issue as I make progress with my speech. The member makes a fair and reasonable point that will, I am sure, carry support from across the chamber.
For me, the issue is straightforward. A society that, on one hand, opposes discrimination should not, on the other hand, enshrine discrimination in its very constitution and at the very heart of its national life. It might well be true that the Crown is now reduced to being a ceremonial part of the British constitution, but as Cardinal Keith O’Brien has said, the legislation that we are debating not only is “arcane” but
“causes offence and is hurtful”.
As long as we have a monarch as the head of state, the issue remains as pressing and as significant as it would be if we had a bar on a Catholic becoming our head of state through election as president.
The motion seeks to maximise agreement across the chamber, to build consensus and to reaffirm the will of the Scottish Parliament on the issue. Previous Governments have asserted that the issue is too difficult and complex to deal with, requiring, as it would, changes to various pieces of legislation. That argument has never been convincing. Robert Blackburn, who is a professor of constitutional law at University College London, has written that
“this complication would hardly bother the government’s legislative draftsmen”.
Professor Blackburn argues that reform measures such as the Constitutional Reform Act 2005, which transformed the office of Lord Chancellor and the position of the law lords, were far more complex, as are the annual finance acts, which he argues are worse in terms of detail and comprehensibility.
The argument about complexity has always been weak, and now that the UK Government has announced two significant changes, which will require amendments to at least eight significant pieces of legislation, that weak argument becomes entirely obsolete. Nevertheless, the UK Prime Minister refuses to go further and to end the discrimination for fear that allowing Catholics and other non-Anglicans to succeed to the throne would conflict with the sovereign’s role as supreme governor of the Church of England, as John Mason said. That strikes me as being the most absurd case of putting the cart before the horse. What is the more important role: head of state or head of the Church of England? Are we to say that discrimination at the heart of our constitution must be tolerated, for fear that doing away with it might interfere with the working of the Church of England? Surely it is possible to protect the status of the Church of England while at the same time removing this unjustifiable barrier.
We all understand that the matter falls outside the legislative competence of the Scottish Parliament, but while this Parliament does not have the legislative power to act, it has a political responsibility to lead. It also has a democratic duty to reflect the values of our society and our communities. I believe that by speaking out against the provisions in the Act of Settlement, we are reflecting the values of the vast majority of Scottish society. There is widespread support among members of our religious communities, including the Church of Scotland and the Hindu and Muslim faiths, for ending the discrimination that the act contains.
Very recent polling shows that a clear majority of the Scottish public are in favour of repeal, and that support for repeal is even stronger in Scotland than it is elsewhere in the UK. There have been many welcome changes since the Act of Settlement, including Catholic emancipation, universal suffrage and votes for women. We should not allow one of the last vestiges of discrimination to remain in place.
In 1999, this Parliament spoke with a clear and unequivocal voice to call for the repeal of the Act of Settlement. Even with the changes that the UK Government has proposed, the discrimination at the heart of the act will remain in place. I believe that that is unacceptable. Now is the time for our Parliament to reaffirm its commitment to equality. This is our opportunity to restate our view that participation in every aspect of national life should be open to all, regardless of religion. I trust that that is a principle on which we can all agree.
17:21
I thank Jim Eadie for giving us the opportunity to discuss this significant and fundamental issue, and I echo the comments that he made at the end of his speech. There should be no position in modern British society that prevents anyone from participating in it. Institutional barriers to any religion should have no place in 21st century Britain.
Jim Eadie criticised David Cameron, but I will give credit where credit is due: David Cameron has made at least some progress on what has been a centuries-old problem. As Jim Eadie said, it is time that we eliminated all forms of discrimination and prejudice, irrespective of who is affected or the positions to which someone may aspire.
It is interesting for us in Scotland, when we are having a topical debate about sectarianism, to see that we still have this remnant from history. A symbolic and potent aspect of anti-Catholic bigotry and prejudice still remains. It is important to ensure that no institution is associated with discrimination against any citizen.
Jim Eadie referred to some of the history behind the act and to the influence of the Church of England. It is absurd that the Church of England still feels it necessary to have the monarch of the country as its head. I cannot understand why it does not have the confidence to be a proper church, like other religions, and to have its own form of worship with its own religious individual as head of the church. It is an absurd historical relic that the monarch or the head of state of this country should be the head of the Church of England.
There is an argument—whether or not we call it disestablishment—for removing the monarch from their position as head of the Church of England. The debate is not about whether we are for or against the monarchy, which is a moot point. It is about the specific issue of anti-Catholic discrimination, which still exists whether or not there is a monarchy.
Alex Salmond has said that he still wants the Queen and her successors to be monarch in an independent Scotland. He has spoken eloquently—and correctly, as I support him on this—about removing this aspect of anti-Catholic prejudice. However, what would happen in an independent Scotland if this relic still remained and the Queen remained as head of the Church of England? Would Alex Salmond still want the Queen to be monarch of an independent Scotland? However, that is a debate for another day.
I do not think that there is any convincing argument for this historical relic or for institutional discrimination to remain. Its removal is long overdue. We have made a slow, small step towards that, but we have not fundamentally changed the situation. I will finish on one other aspect of it. If, under the changes that have been made, the monarch is allowed to marry a Roman Catholic and that person wishes to bring their children up as Roman Catholics, what will happen when the oldest child—now that either a male or a female can ascend the throne—comes of age and ascends the throne? Will that child have to abandon their religion simply to become the monarch, or will the Roman Catholic person whom the monarch marries be forced not to bring their children up as Catholics? As Jim Eadie says, the law is absurd and change is long overdue.
17:26
I commend Jim Eadie for bringing the debate to the Parliament at a timely juncture, while the matter is being discussed in other places.
Reform of the institutionalised discrimination that is the Act of Settlement has been a long time in coming. Let us not forget that that piece of legislation predates the country in which it applies and that it exists for the self-described purpose of ensuring the Protestant succession to the throne. One could be forgiven for feeling some hope at the prospect of reform when Prime Minister David Cameron announced changes to, as he put it,
“some of the out-dated rules—like some of the rules of succession”
that
“just don’t make sense to us any more”,
and said
“this way of thinking is at odds with the modern countries that we have become.”
Sadly, we are perhaps not as modern as David Cameron would like us to be. The Westminster Government will not deliver the far-reaching reforms that are required, nor will it analyse in a meaningful way the place that the monarch has in society and their relationship with all citizens—importantly, with the taxpayer.
Instead, Westminster ultimately has disappointment in store, as far as I am concerned. I take on board what Hugh Henry said about progress still being progress but, as a Catholic, I see the reforms as disappointing. Not only do they fail entirely to address society’s concern about the monarchy’s arcane rules of operation; they are dressed up in a language that pretends that they are doing so. I am no monarchist, but I accept that the monarchy exists. To put it bluntly, if we want equal rights in relation to the monarchy, we either support equal rights for Catholics or we do not. We cannot have a partial human right—we have it or we do not. The reforms will mean that Catholics across the UK or wherever will not have equality of status with people of other faiths, and that is just wrong.
I do not mean to have a personal dig at Bob Doris, but could he advise me whether he supports his party’s current policy that the Queen would be the head of state in an independent Scotland?
I will not be drawn into the detail of that because of the short time that I have left. In an independent Scotland, where the Queen would be the head of state and the same relationship would still exist, it would be for the people of Scotland, not the rest of the UK, to decide Scotland’s future relationship with the monarchy. We are currently powerless to make that decision. The difference between me and Mr Findlay is that I would let the Scottish people decide, whereas he would give that responsibility to another place. I find that unacceptable, but I take his comment in the spirit in which it was intended. It is important to realise these things as factual.
I note that the Scottish Parliament has come together as one before to say that the Act of Settlement is wrong and should be repealed. Personally, I do not believe that there should be such a relationship between the state and a church. We should have a secular Government—that is important to me.
I will touch lightly on the bill that the Parliament is considering to deal with sectarianism and discrimination. The Act of Settlement does not directly impact on that, but we all stay in communities. It would be wrong to say that people do not ask why the country in which we live bars Catholics from being the monarch or marrying the monarch. I am not saying that people aspire to that, but the situation is symbolic for many people and has been so for generations. Until the Act of Settlement is completely repealed, we will not achieve integration and equality in society.
17:30
I have a strong sense of déjà vu. As Jim Eadie said, the subject was raised in the Scottish Parliament’s early days, back in December 1999. We debated a motion that Michael Russell lodged in his first incarnation as an MSP and an amendment lodged by Tom McCabe, who I very much regret is no longer a member or able to give us his wise counsel. As other members have said, the motion and the amendment were unanimously approved.
As Jim Eadie said, the debate was notable for what turned out to be an award-winning speech that my good friend Lord James Douglas-Hamilton delivered. He powerfully advocated the case for reforming the succession to the Crown, for ending the statutory discrimination against persons of the Roman Catholic faith that prevents them from becoming the monarch and for ending the ban on the monarch marrying a Roman Catholic. Those who did not witness that speech will be interested to know that it asked whether Tony Blair was more right-wing than the Duke of Wellington and enlightened us on the duel that the iron duke and Lord Winchilsea fought in 1829 over Roman Catholic emancipation.
From the motion and some speeches today, it would be tempting to think that the issue is simply a matter of repealing the Act of Settlement, which is an act of the English Parliament prior to the union of 1707, as was the Bill of Rights of 1688, which followed William and Mary’s succession to the throne. However, taking such a view would be an error, because the succession is enshrined in the act of union—technically, that means the acts of union of 1706 and 1707, which the old English and Scottish Parliaments passed.
The acts of union state:
“all Papists and persons marrying Papists shall be excluded from and for ever incapable to inherit possess or enjoy the Imperial Crown of Great Britain and the Dominions thereunto belonging or any part thereof”.
There is nothing to be particularly proud of in that reiteration, but let us not forget that many jurists regard the acts of union as fundamental law. That view has been expressed by, among others, the late Professor Neil MacCormick and Professor T B Smith, under whom I had the privilege of studying law at the University of Edinburgh. The view was also the basis of the famous ERII case of MacCormick v Lord Advocate in 1953.
Some might simplistically think that the union of the Crowns and the union of the Parliaments were two separate measures, but the fact is that the union of the Parliaments was partly motivated by a desire to secure a unified Protestant succession to the throne, which is why the acts of union contain the express statement that I quoted. SNP members should not look bemused; I am afraid that those are the facts.
As a party, the SNP must address the fact that any dissolution of our parliamentary union will require resolution of the succession. Of course, that assumes that an independent Scotland would have a monarchy—Neil Findlay raised that point—and a unified Crown with the rest of the United Kingdom, which the First Minister appears to favour.
The progress that Her Majesty’s Government has made on dealing with discriminatory aspects of the succession on the grounds of gender and religion is welcome. It was fairly acknowledged in Jim Eadie’s motion and generously noted in Hugh Henry’s speech. That stands in marked contrast to the singular lack of progress that was made at Westminster in the 12 years after this Parliament debated the Act of Settlement.
Let us not underestimate the complexities of going further, however desirable that would undoubtedly be. As Hugh Henry and John Mason pointed out fairly, the whole issue is tied up with the established nature of the Church of England, of which the monarch is head. It requires the untangling of more than 400 years of constitutional history as well as the assent of Parliaments throughout the Commonwealth. I agree that the issues are not impossible to resolve, but they require a co-ordinated and sustained effort in a number of jurisdictions. We should encourage further progress.
17:35
I congratulate Jim Eadie on bringing the debate to the chamber. In 1999, Michael Russell was able to say that 77 members signed his motion on the Act of Settlement, which gave him the support of 70 per cent of members that day. Although the motion that we are debating today did not receive the same level of support, the issue that Jim Eadie has brought to our attention is not about who the monarch wants to marry; it is a wider issue about a 300-year-old act that is still being imposed on Scotland and the rest of the UK and about meaningful discrimination against Roman Catholics which, as other members have said, relates to other debates in Parliament to address some of the worst aspects of sectarianism in our society.
David McLetchie was right. We can download the speeches from 1999 and see that Lord James Douglas-Hamilton gave an award-winning speech, in which he raised some very important points. He asked whether there should be legislation that blatantly discriminates against a Christian religion. That comment and the rest of his speech should be read by every member so that they are aware of the issues that were being discussed in 1999 and which we are still trying to resolve 12 years later.
The current position is quite clear. The heir to the throne can accede to the throne if he or she marries someone of any faith, or even an atheist, but not a Roman Catholic. Jim Eadie is correct in his assertion that the proposed reforms for the monarchy that were announced at the Commonwealth heads of Government meeting in Perth, Australia do not go far enough. It is worth noting that, although Parliament discussed the matter 12 years ago, we are still no further forward in resolving the issue. Do we continue to support a 300-year-old piece of legislation or should we introduce legislation that is fit for purpose in a modern, 21st century society?
In a multifaith Scotland, tackling discrimination of any kind should be a top priority. I place on the record my appreciation for the approach that Michael Russell took in 1999 to bring the issue to the chamber in that year so that Parliament could discuss it and get its views on the record. We still have to take the debate forward. David McLetchie is right that we might have to revisit and review the Act of Settlement as part of the vote on independence that we will have later in the parliamentary session, and then draw up legislation that is fit for purpose in the 21st century.
In a modern Scotland, meritocracy should be the key principle, not intolerance. We should embrace modernity, not an outmoded way of institutionalised thinking that is now more than 300 years old. I commend Jim Eadie for his motion.
17:39
The Government welcomes Jim Eadie’s motion. It is telling that, so soon after its revival in 1999, the Parliament made a clear and unanimous call for the removal of all religious discriminatory provisions in the Act of Settlement. David McLetchie eloquently made his point about a number of acts that were enacted in the English and Scottish Parliaments at that time. I am delighted that he continues to support changes to the Act of Settlement, and I hope that some day he might wish to change the acts of union of 1706 and 1707.
Since 1999, the Parliament and successive Governments of Scotland have held firm to the view that all religious discriminatory provisions in the Act of Settlement should be removed. Nobody could doubt Scotland’s desire to make clear its commitment to eradicating religious discrimination.
This debate affords us the opportunity to consider the UK Government’s announcement on 28 October that certain religious discriminatory aspects of the rules that apply to the royal succession would be removed. The Scottish Government welcomes the move, as agreed by all the Commonwealth heads of Government, to end male primogeniture and the ban on any future monarch being married to a Roman Catholic, but it is a pity that it did not go all the way. The step is significant and it reflects the modern world, but as Jim Eadie’s motion says, it is indeed a “deep disappointment” that the ban on a Catholic becoming the monarch is to remain.
The Prime Minister revels in painting a warm and rosy picture of a first-born female descendant one day becoming Queen, but that picture quickly fades for those who realise that the child cannot do so if she chooses the Catholic faith. A future monarch can marry a Catholic, but they cannot share their Catholic partner’s faith. Hugh Henry rightly pointed out the challenges around how the offspring of such a union might be brought up in terms of their faith. Indeed, if changes are made in an independent Scotland, there would be challenges around how the repeal of the Act of Settlement would affect that. As I say, a future monarch can marry a Catholic, but they cannot share their Catholic partner’s faith, and such a couple could never expect their heirs to enjoy that freedom.
The UK Government told us previously that the complexity of constitutional statute and its application across the Commonwealth were a barrier to the reform agenda. Mr McLetchie repeated that, but he did not say that such complexities are insurmountable. That appears to be the UK Government’s current position, which is unfortunate. It is now clear that change can and will happen; indeed, it has happened in two thirds of the problem areas of the act. Nothing is impossible. Many things in this world can be classed as difficult, but the real barrier is a lack of will to drive change.
The Prime Minister sought to dismiss the idea of a Catholic becoming monarch on the ground that
“the monarch must be in communion with the Church of England because he or she is the head of that Church.”
As the First Minister made clear in response to the Commonwealth heads of Government announcement, however, the interests of the Church of England could perfectly well be protected without recourse to outdated and religiously discriminatory 18th century legislation. It is a fact that a solution could be found if people chose to look for one.
The Scottish Government has made it clear that, whatever Scotland’s constitutional future, Her Majesty the Queen would remain the head of state in Scotland. In doing so, we have signalled that an independent Scotland could abolish discrimination on the ground of religious belief in relation to the succession to the throne. That seems to me to be a fairly fundamental principle. It is a position that speaks of fairness, inclusion and respect for a multicultural Scotland in which bigotry and religious discrimination have no part.
It is certainly frustrating to debate matters over which the Scottish Government has no control, but I welcome the opportunity that Jim Eadie’s motion has given to reaffirm that the Government values Scotland’s diverse faith and belief communities, all of which enrich Scotland socially, culturally and economically. They also play an important part in supporting their communities and developing cohesion among and between Scottish communities.
Sectarianism is never acceptable or excusable. It has blighted Scotland for far too long, and the ambition of the Scottish Government and all members is to eradicate it.
The Government’s Offensive Behaviour at Football and Threatening Communications (Scotland) Bill sends a strong message that bigotry and prejudice have no place in a modern, diverse and multicultural Scotland. In times of great change and uncertainty, we must be vigilant and resist any attempt to single out and make scapegoats of minority faith groups and communities as a result of the pressures of society as a whole. We are committed to ensuring that Scotland values diversity and recognises a multicultural society as one that is vibrant, successful and energetic.
Our aspiration is for Scotland to be a place where people from all backgrounds can live and raise families in peace and where people of all faiths and ethnic backgrounds can follow their religion or belief and, vitally, achieve their potential. The Government will therefore not tolerate discrimination, harassment or abuse because of the colour of someone’s skin, their ethnic origin or their cultural or religious background. Such behaviour has no place in Scottish life.
The Government is actively involved in promoting and supporting interfaith harmony. We fund a range of organisations and projects that work to encourage, promote and develop relationships that are based on mutual respect and understanding among and between people of differing faiths and those of none. Some examples, with which Mr Eadie will no doubt be familiar, are the festival of spirituality and peace, which provides a significant contribution to the Edinburgh international festival, and the Scottish Inter Faith Council and Edinburgh Inter-Faith Association, both of which work tirelessly to promote interfaith relations, which includes working with young people and in schools, and to deliver Scotland’s interfaith week.
The Scottish Government is committed to creating a modern and inclusive Scotland that protects, respects and realises human rights for all. By working together, we can make Scotland a safer, stronger and more inclusive society to which we can all fully contribute and from which we can all fully benefit.
Meeting closed at 17:46.