The Religion of the Queen - Time for Change

By McBain, Graham S. | University of Queensland Law Journal, December 2011 | Go to article overview

The Religion of the Queen - Time for Change


McBain, Graham S., University of Queensland Law Journal


Previous published articles have considered various pieces of legislation relating to the sovereign and the Crown which were enacted prior to 1800 and which are still extant. The tenor of these articles was that most of this antiquated legislation should be repealed (1) or modernised. (2) This article considers the religion of the sovereign--as well as gender in respect of succession. The purpose of all three articles is to assert that what is required is a Crown Act to consolidate all prior legislation that relates to the sovereign in a personal capacity. That is, an Act that deals with:

* Religion of the sovereign (or the lack of a need for);

* Style and Title;

* Succession (including gender);

* Regency;

* Consent to royal marriages (or the lack of a need for);

* Demise.

The form of such a Crown Act is proposed. It may be noted that, while there have been many old (3) and modern (4) texts on constitutional law, analysis of much of the subject matter covered in this article has not been detailed, probably, because there is so little case law. However, there have been a number of useful articles, to which reference is made.

I RELIGION OF THE SOVEREIGN

Matters relating to the religion of the sovereign are contained in a number of pieces of English and Scots legislation, viz.

* Bill of Rights 1688

* Claim of Right 1689 (Scots)

* Coronation Oath Act 1688

* Act of Settlement 1700

* Union with Scotland Act 1706

* Union with England Act 1707 (Scots)

* Union with Ireland Act 1800

* Royal Titles Act 1953 (5)

These Acts, in toto, specify that the sovereign:

* Cannot be (or become) a Roman Catholic and be (or remain) sovereign;

* Cannot marry a Roman Catholic and become (or remain) sovereign; (6)

* Must declare, on accession, himself (or herself) to be a 'faithful protestant';

* Must join 'in communion' with the Church of England;

* Must give a coronation oath in which he (or she) promises to maintain the:

** (i) laws of God;

** (ii) the true profession of the gospel; and

* (iii) the protestant reformed religion established by law.

* Also, to maintain and preserve:

** (iv) the settlement of the Church of England and its doctrine, worship, discipline and government, by law established; and

** (v) the legal rights and privileges of the bishops and clergy of the Church of England (and their churches);

* Must swear to maintain the Church of Scotland;

* Bears the title ' Defender of the Faith'.

There is also the Statute of Westminster 1931, which requires the assent of various Commonwealth countries to any change to succession. All this legislation is now considered.

A Bill of Rights 1688

The Bill of Rights 1688 (7) has the force of a statute and it can be amended (as can the Act of Settlement 1700) like any other Act. (8) In the form of a declaration, the Bill of Rights 1688 recites the mis-deeds and abdication of James II (1685-8) (9) as well as the invitation by Parliament to William of Orange and his wife Mary (daughter of James II) to take the throne--which they did. These matters are historical. The Bill of Rights 1688 also declares the exercise of the royal prerogative to be, in certain instances, illegal. (10) More especially, the Bill of Rights 1688, s 1, provides in respect of the religion of the sovereign, that:

   all and every person and persons that is or are or shall be
   reconciled to or shall hold communion with the see or church of
   Rome or shall profess the popish religion or shall marry a papist
   shall be excluded and be for ever incapable to inherit possess or
   enjoy the crown and government of this realm and Ireland and the
   dominions thereunto belonging or any part of the same or to have
   use or exercise any right power authority or jurisdiction within
   the same [And [in] all and every such case or cases the people of
   these realms shall be and are hereby absolved of their allegiance]
   (11)

   and the said crown and government shall from time to time descend
   to and be enjoyed by such person or persons being protestants as
   should have inherited and enjoyed the same in case the said person
   or persons so reconciled holding communion or professing or
   marrying as aforesaid were naturally dead (spelling modernised and
   wording divided for ease of reference). … 

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