Act of Settlement 1701
The Act of Settlement is a piece of English legislation governing the succession to the English Crown. It was passed in 1701. It provides that only Protestant descendants of Sophia, Electress of Hanover, who have not, furthermore, married a Catholic, can succeed to the English Crown. In addition, it specifies that it is for Parliament to determine who should succeed to the throne, not the monarch.
This act was, in many ways, the major cause of the union of Scotland and England to form the Kingdom of Great Britain. The Parliament of Scotland was not happy with the Act of Settlement and, in response, passed the Act of Security in 1704. which gave them the right to choose their own successor to Queen Anne. This would have created a fully independent Scotland rather than the partially independent nation which had resulted from the Union of the Crowns a hundred years before. As a result, the Parliament of England decided that full union of the two Parliaments and nations was essential before Anne's death, and used a combination of discriminatory legislation, the Alien Act of 1705. politics, and bribery to achieve it within three years. 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.
By virtue of Article II of the Treaty of Union, which defined the succession to the British Crown, the Act of Settlement became, in effect, part of Scots Law.
As a result of the Act of Settlement, several members of the British Royal Family who have converted to Roman Catholicism or married Catholics have been barred from their place in the line of succession. This law has in recent times been frequently been attacked as anti-Catholic and religiously discriminatory. The Guardian newspaper recently brought an unsuccessful legal challenge to the legislation, based on the European Convention on Human Rights and the Human Rights Act 1998.
In 2003 the Fabian Society issued a paper calling for the lifting of the ban on Catholics inheriting the throne. In 2002, the Lord Chancellor rejected calls from the backbench for a change in the succession rules. A motion already passed the Scottish Parliament in 1999 requesting a change.
Any repeal of the law could lead to an anomaly with the status of the Church of England as the established church in England. since a Roman Catholic monarch would be Supreme Governor of the Church of England. something which had not happened since King James II of England. However, in principle, a similarly absurd result obtains already. The law fails to recognise that the monarch's actions are highly circumscribed and in most matters she acts on the advice of her government. The Queen's position as "Supreme Governor" of the Church of England is little more than a title. The Supreme Governor only makes decisions about the appointment of the Archbishop of Canterbury or other senior bishops of the Church of England on the advice of the Prime Minister, whose own religion (if any) may be and at times has been in conflict with the Church of England. This situation is rendered possible because, on the one hand, religious tests are not applied to public offices such as the Prime Minister (and under contemporary anti-discrimination laws it would be illegal to do so), while on the other hand, such a religious test not only is but by law must be applied to the monarch.
There is a further problem, with the Act being worded so as to exclude explicitly Roman Catholics only.
The intention of these provisions may have been to protect the Anglican Church from its only significant rival, but because that ban has never in the subsequent 300 years been extended to all religions other than the Church of England, this invites the perception that the Catholic Church is being singled out. The Church of England is the established church in England, and the monarch is required to be in communion with the established church. This ipso facto excludes the monarch from membership of non-Christian religions or from other Christian churches which practice exclusive communion - note that the British royal family finds no difficulty in being Anglicans when in England and Presbyterians when in Scotland. Jews and Muslims, Buddhists and atheists, are not excluded from marrying the monarch or heirs to the throne solely because of their religion; Roman Catholics alone are. Curiously, spouses of monarchs or of other heirs to the throne are not prevented from converting to Roman Catholicism after their marriages, only from being Roman Catholics at the time of their marriage.
Prime Ministers have more freedoms. They may profess any faith they wish, or none, and remain in office. The current Prime Minister Tony Blair. while a member of the Church of England, is married to a Roman Catholic and has in the past taken the eucharist in Roman Catholic churches, until requested by Catholic bishops not to - a polite modern form of excommunication. But even if he converted to Roman Catholicism, this would have no impact on his position of having responsibility for making decisions about the spiritual leaderers of a church in which he did not believe. Neville Chamberlain was a Unitarian but this caused him no problems as Prime Minister. Interestingly, were the Queen hypothetically to convert to Roman Catholicism, this would render her instantly ineligible to remain Queen and she would be deemed to have abdicated. So, she must remain in communion with the Church of England in order be in the position of having no choice but to formally approve, in her capacity as Supreme Governor of that Church, major church-related decisions that are made by a person whose links with the same church may be non-existent and who achieved his or her own office as Prime Minister obliging compliance with the Human Rights Act with its provision on religious tolerance.
It is possible that any amendment to allow Catholics to ascend to the throne would entail either the complete disestablishment of the Church of England or a separation of the roles of Supreme Governor and monarch so that the positions could be held by different individuals (which would, in essence, be disestablishment by other means).
Under the Statute of Westminster any change in the succession rules would require unanimous consent of all Commonwealth realms. The complex procedures that would have to be undertaken to not only change various British statutes but receive the consent of Commonwealth parliaments has been cited by Tony Blair as the reason why the current Labour government had decided not to seek any change in the succession rules.
As the Act of Settlement impacts on the crown in the Commonwealth realms the act's anti-Catholic provisions have also been a subject of debate outside of Britain. In 2003, Canadian politician Tony O'Donohue filed a court challenge arguing that the Act of Settlement's anti-Catholic provisions were a violation of the Canadian Charter of Rights and Freedoms. However, the court ruled that the Act of Settlement was part of Canada's written constitution and dismissed the case as one part of the constitution cannot be used to invalidate another part.