Perth Agreement

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22nd Commonwealth Heads of Government Meeting
Dates 28 October 2011
30 October 2011
Venue(s) Kings Park
Cities Australia Perth, Western Australia
Heads of State or Government 36
Chair Julia Gillard
(Prime Minister)
Follows 2009
Precedes 2013
Key points

The Perth Agreement is an agreement made by the prime ministers of the 16 Commonwealth realms during the Commonwealth Heads of Government Meeting in October 2011 in Perth, Western Australia concerning changes to the royal succession laws.

The changes, proposed by the government of British Prime Minister David Cameron, would replace male-preference primogeniture, under which male descendants take precedence over females in the Succession to the British throne, with absolute primogeniture for descendants of the current Prince of Wales (later amended to include all persons in the line of succession born after 28 October 2011); end the disqualification of those who marry Roman Catholics; and limit the requirement for those in line to the throne to acquire permission of the sovereign to marry. However, the ban on Catholics and other non-Protestants becoming sovereign and the requirement for the sovereign to be in communion with the Church of England would remain. The Queen, Elizabeth II, was said to support the proposed changes.

New Zealand chaired a working group to determine the process for reform. The Commonwealth realms—the United Kingdom, Canada, Australia, New Zealand, Jamaica, Barbados, the Bahamas, Grenada, Papua New Guinea, the Solomon Islands, Tuvalu, Saint Lucia, Saint Vincent and the Grenadines, Belize, Antigua and Barbuda, and Saint Kitts and Nevis—are independent of each other, while sharing one monarch in a constitutionally equal fashion. As such, changes to the succession laws, according to convention, must be identical in and approved by each country, though the procedure varies between realms.

In December 2012, it was announced by the Deputy Prime Minister of the United Kingdom that all the realms had agreed to implement the proposals that had been outlined and that the new legislation would also end the ban on anyone in the line of succession marrying a Roman Catholic. The UK's proposed legislation was published on 13 December 2012 and received Royal Assent on 25 April 2013.

By February 2014 all of the realms which needed to pass their own legislation had done so, except for Australia.[1][2]

Background[edit]

Succession to the throne in each of the Commonwealth realms is governed both by common law and statute. Under common law, the Crown is currently transmitted by male-preference primogeniture;[3] succession passes first to the monarch's or nearest dynast's legitimate sons (and to their legitimate issue) in order of birth, and subsequently to daughters and their legitimate issue, again in order of birth, so that sons always inherit before their sisters, elder children inherit before younger, and descendants inherit before collateral relatives.

Succession is also governed by the Acts of Union 1707, which restates the provisions of the Act of Settlement 1701, and the Bill of Rights 1689. These laws restrict the succession to legitimate descendants of Sophia, Electress of Hanover, and debar those who are Roman Catholics or who have married Roman Catholics.[4] The descendants of those who are debarred for being or marrying Roman Catholics, however, may still be eligible to succeed.[5] By convention iterated in the preamble to the Statute of Westminster 1931, the line of succession cannot be altered without the agreement of all 16 realms.[6]

Challenges have been made against the Act of Settlement, especially its provisions regarding Roman Catholics and preference for males. In Canada, where the Act of Settlement is now a part of Canadian constitutional law, Tony O'Donohue, a Canadian civic politician, took issue with the provisions that exclude Roman Catholics from the throne, and which make the monarch of Canada the Supreme Governor of the Church of England.[7] In 2002, O'Donohue launched a court action that argued the Act of Settlement violates the Canadian Charter of Rights and Freedoms, but the case was dismissed by the court.

In the United Kingdom, from time to time there has been debate over repealing the clause that prevents "Papists" (Roman Catholics) or those who marry one from ascending to the British throne. The Scottish Parliament unanimously passed a motion in 1999 calling for the complete removal of any discrimination linked to the monarchy and the repeal of the Act of Settlement.[8] A private member's bill—the Succession to the Crown Bill—was introduced in the House of Lords in December 2004. The government, headed by Tony Blair, however, blocked all attempts to revise the succession laws, claiming it would raise too many constitutional issues and it was unnecessary at the time. The issue was raised again in January 2009, when a private member's bill to amend the Act of Succession was introduced in parliament. British Labour Member of Parliament Keith Vaz introduced to the House of Commons at Westminster, in early 2011, a private member's bill, which proposed that the Act of Settlement be amended to remove the provisions relating to Roman Catholicism and change primogeniture governing the line of succession to the British throne from male-preference to absolute.[9]

Proposals in 2011[edit]

In 2011, the Deputy Prime Minister of the United Kingdom, Nick Clegg, announced that the British government was considering a change in the law.[10][11] At about the same time, it was reported that Prime Minister David Cameron had written to the prime ministers of each of the other 15 Commonwealth realms, asking for their support in changing the succession to absolute primogeniture, and notifying them he would raise his proposals at that year's Commonwealth Heads of Government Meeting (CHOGM) in Perth, Australia.[12]

At CHOGM on 28 October 2011, the prime ministers of the other Commonwealth realms agreed to support the proposed changes.[13][14][15] The changes would replace male preference primogeniture with absolute primogeniture for descendants of the current Prince of Wales[citation needed] (later amended to include all persons in the line of succession born after 28 October 2011[16]), end the ban on marriage to Catholics, and limit the requirement for those in line to the throne to acquire permission of the sovereign to marry. However the prohibition on Roman Catholics becoming monarch would remain.[17][18][19] The bill put before the Parliament of the United Kingdom would act as a model for the legislation required to be passed in at least some of the other realms and any changes would only have first taken effect if the Duke and Duchess of Cambridge were to have had a daughter before a son,[17][20] which they did not. The Queen is understood to support the changes.[20][21][22]

Cameron stated: "The idea that a younger son should become monarch instead of an elder daughter simply because he is a man, or that a future monarch can marry someone of any faith except a Catholic—this way of thinking is at odds with the modern countries that we have become."[17] On the question of continued requirements that the sovereign be a Protestant, Cameron added, "Let me be clear, the monarch must be in communion with the Church of England because he or she is the head of that Church."[8]

Along with the changes in the succession law, Cameron proposed that the necessity for royal consent to marriages in the royal family (Royal Marriages Act 1772) should be limited to the first six people in line to the throne.[23] This was approved by the other Commonwealth leaders.[24] However, contrary to reports that consent to royal marriages had been discussed and agreed at the Perth Agreement, in explanatory notes prepared by the Cabinet Office as brought from the House of Commons on 29 January 2013, "consent to royal marriages, was not mentioned in the Perth Agreement".[25][full citation needed]

Commentary[edit]

Cameron's proposals were supported by the Prime Minister of Australia, Julia Gillard, who said she was "very enthusiastic about it. You would expect the first Australian woman prime minister to be very enthusiastic about a change which equals equality for women in a new area."[17] Canadian prime minister Stephen Harper described himself "supportive" of the reforms as "obvious modernizations".[18][26] The Monarchist League of Canada also expressed favour for the plan,[27][28][29] as did Monarchy New Zealand.[30] A poll carried out by Forum Research in February 2013 found that 73% of Canadians polled "agreed with the change, which would permit a first-born female to become queen even if she had brothers."[31]

Scottish First Minister Alex Salmond was more critical, saying: "It is deeply disappointing that the reform has stopped short of removing the unjustifiable barrier on a Catholic becoming monarch."[8] While welcoming the gender equality reforms, The Guardian also criticised the failure to remove the ban on Catholics sitting on the throne as "fanning a religious hostility the rest of Europe was already growing beyond."[32] A representative of the campaigning group Republic said monarchical succession is inherently biased and "To suggest that this has anything to do with equality is utterly absurd,"[17] an opinion echoed by Citizens for a Canadian Republic.[33]

Legislative processes[edit]

The Cabinet Secretary of New Zealand chaired a working group to discuss the best way of accomplishing the reforms in all sixteen Commonwealth realms.[34][35] The realms agreed that the United Kingdom would be the first to draft legislation, but that it would not be introduced without the agreement of the other realms and would not be commenced until the appropriate domestic arrangements were in place in the other realms.[14]

On 2 December 2012, the British government received final agreement in writing from the other fifteen Commonwealth realms regarding all three elements of the reform.[14] On 4 December 2012, the day after the Duchess of Cambridge's pregnancy was announced, the British Deputy Prime Minister announced this final agreement, adding that the other realm governments had confirmed that they would be "able to take the necessary measures in their own countries."[36]

Australia[edit]

Main article: Monarchy of Australia

In Australia, changes to the succession law may involve amending the federal constitution and any such change requires a referendum,[37] as mandated by Chapter VIII of the Constitution of Australia. The English Bill of Rights 1689, Act of Settlement 1701, and Royal Marriages Act 1772 are incorporated into Australian law,[38] and the Act of Settlement is part ot the laws of the Australian states[39][full citation needed][40][full citation needed] and territories and therefore the states will have to change their laws.[41] At a meeting of the Council of Australian Governments (COAG) in mid-December 2012, the then prime minister Julia Gillard and the premiers of five states agreed each state legislature would pass a law permitting the federal parliament to alter the line of succession for the Commonwealth and all the states. However, Queensland Premier Campbell Newman disagreed, citing Section 7 of the Australia Act 1986 and concluding from it that each state is sovereign and each should therefore pass its own legislation affecting the succession laws in its jurisdiction.[42] Accordingly, the Queensland state government introduced its own Succession to the Crown Bill in the Queensland Legislative Assembly on 13 February 2013. The federal government stated that if Queensland were to proceed, it would override the state's legislation in favour of national legislation.[43] Following an agreement at a COAG meeting in April 2013, Queensland on 2 May amended its bill to add permission for the Commonwealth to act and the bill passed the same day.[44] As of 26 June 2014, only Western Australia had not passed legislation. The federal parliament of the Commonwealth of Australia will not begin the process until all of Australia's states have passed legislation.[1]

The Northern Territory government introduced a bill to request the federal parliament to change the law relating to royal succession in similar terms.[45] On second reading it was explained that the Northern Territory’s request or consent to the federal parliament enactment was not constitutionally necessary but that the government of the Northern Territory considered it desirable that arrangements in the Northern Territory would mirror those between the Australian Commonwealth and its states.[46]

Canada[edit]

The Canadian government's Succession to the Throne Act, 2013, with the long title An Act to assent to alterations in the law touching the Succession to the Throne, 2013, was tabled in the Canadian House of Commons as Bill C-53 on 31 January 2013[47] and passed by that body on 4 February. It was then approved by the Senate on 26 March 2013 and received Royal Assent on the following day. It will come into force on a future date to be fixed by order of the Governor General-in-Council.

The act gives assent to Succession to the Crown Bill 2013 that had been laid before the United Kingdom parliament[48] (later, after amendment, to be given Royal Assent there on 25 April 2013 as the Succession to the Crown Act 2013). The position taken by the federal Cabinet was that Canada's monarch is automatically whoever is monarch of the United Kingdom and the Canadian parliament need only assent to the changes made to the laws of succession in the United Kingdom by that realm's parliament, which can be achieved by ordinary legislation, without the approval of the provinces. There is disagreement over this process, mainly on whether the rules of succession involve the office of the Queen thus requiring a constitutional amendment under Section 41(a) of the Constitution Act, 1982; whether, by the principle of either received law, by statute law, or both, the Bill of Rights 1689, the Act of Settlement, the Royal Marriages Act, and the conventions related to royal succession are a part of the Canadian constitution; and whether the Canadian law assented to the Succession to the Crown Bill 2012 as had been presented to the United Kingdom parliament or as amended by that body and passed into law.

Legal challenges[edit]

There was some speculation in the press before the birth of Prince George of Cambridge about Canada having a different line of succession to the other realms if the Canadian law is eventually found to be unconstitutional.[49]

An application was made to the Ontario Superior Court of Justice seeking to find the Succession to the Throne Act, 2013, unconstitutional due to allegedly contravening both Section 2 of the Canada Act 1982 and section 15 of the Charter of Rights and Freedoms. The case was dismissed as non-justiciable in August 2013.[50] In August 2014, the Court of Appeal for Ontario upheld the lower court decision on the ground that succession rules are not subject to the Charter of Rights and that the applicant had no standing to bring the challenge as he has no connection with the Royal Family.[51]

The law is being challenged in the Quebec Superior Court over its alleged failure to "follow the amending procedure" set out in Section 41 of the Constitution Act, 1982.[52] The case was not expected to be heard by the Court before June 2015 in Quebec City.[51]

New Zealand[edit]

The Bill of Rights 1688, Act of Settlement 1701, and Royal Marriages Act 1772 are part of the laws of New Zealand.[53] These, along with the Imperial Laws Application Act 1988,[54][full citation needed] are proposed to be amended by the Royal Succession Act 2013,[53] which was introduced to the Parliament of New Zealand by Justice Minister Judith Collins on 18 February 2013.[53] The bill received royal assent on 17 December 2013.[53]

United Kingdom[edit]

On 4 December 2012, the British Deputy Prime Minister Nick Clegg announced that the Government would introduce the Succession to the Crown Bill to Parliament as soon as possible.[36] The bill was introduced to Parliament on 13 December 2012 and passed the House of Commons on 28 January 2013.[55] The House of Lords Constitution Committee opposed the Government's plans to fast-track the bill,[56] which led to the Government's decision to observe normal legislative time limits in the House of Lords.[57] The Act received Royal Assent on 25 April 2013, passing into law, but its provisions altering the law of succession will not commence (come into force) until a time to be formally appointed by the Lord President of the Council.[58] When publishing the proposed legislation the government had announced that it was expecting to bring the provisions into force at the same time as the other Realms would be bringing into force any changes to their legislation or other changes necessary for them to implement the Perth agreement.[59]

Caribbean realms[edit]

According to the Lord Wallace of Tankerness, who sponsored the British government's Succession to the Crown Bill in the House of Lords, the governments of Jamaica and Belize had outlined that neither country will require domestic legislation to give effect to changes to the lines of succession to their thrones, as those lines were left by Belize's and Jamaica's constitutions to law of the United Kingdom. Wallace expressed on 13 March 2013 that the British government expected that the parliaments of Jamaica and Belize would not be consulted further by their governments.[60]

Of Antigua and Barbuda, Barbados, the Bahamas, Grenada, Saint Lucia, Saint Vincent and the Grenadines, and Saint Kitts and Nevis, it was also said by Lord Wallace of Tankerness: "We believe that it would be open to the other Caribbean realms to take a similar view [as Jamaica and Belize], but it is, of course, for them to decide how best to give the changes effect."[60]

Other Pacific realms[edit]

On 13 March 2013, Lord Wallace of Tankerness claimed that the countries of Papua New Guinea, Tuvalu, and the Solomon Islands would not require amendments to their constitutions[60] as the wording of each explicitly state that the heirs and successors to the monarch in each realm are the same as those to the monarch of the United Kingdom. Papua New Guinea's and the Solomon Islands' constitutions both state that the references to the Queen "extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom of Great Britain and Northern Ireland",[61][62] while Tuvalu's constitution states that "[t]he provisions of this Constitution referring to the Sovereign extend, in accordance with section 13 (references to the Sovereign of Tuvalu) of Schedule 1, to the Heirs and Successors of the Sovereign according to law"[63] and a reference to the sovereign of Tuvalu "shall be read as including a reference to (a) the Sovereign of the United Kingdom; or (b) any person exercising the whole or the relevant part of the sovereignty of the United Kingdom, as the case requires, in accordance with the law in force in England."[64]

Timetable[edit]

Realm Parliamentary progress Royal assent
Antigua and Barbuda Antigua and Barbuda Realm's government asserts that domestic legislation is not required to implement the changes.[65]
Australia Australia Will introduce legislation when all States have passed requesting legislation
     New South Wales New South Wales Succession to the Crown (Request) Act 2013, passed 25 June 2013.[66] 1 July 2013[66]
     Queensland Queensland Succession to the Crown Act 2013, passed 2 May 2013, altering the succession and requesting that the Parliament of Australia do the same.[44] 14 May 2013[44]
     South Australia South Australia Succession to the Crown (Request) Bill passed by the Legislative Council on 22 May 2014. Bill passed by the House of Assembly on 17 June 2014.[67] 26 June 2014 [68]
     Tasmania Tasmania Succession to the Crown (Request) Act 2013, passed 29 August 2013.[69] 12 September 2013[70]
     Victoria (Australia) Victoria Succession to the Crown (Request) Act 2013, passed on 17 October 2013.[71][72] 22 October 2013[71]
     Western Australia Western Australia Succession to the Crown Bill 2014, introduced and second reading in the Legislative Assembly on 25 February 2014.[73]
The Bahamas The Bahamas Legislation passed.[1] Yes
Barbados Barbados Succession to the Throne Bill passed in the House of Assembly on 15 November 2013.[74][75][full citation needed][76] Passed by the Senate on 20 November 2013.[77] Yes
Belize Belize Realm's government asserts that domestic legislation is not required to implement the changes.[78]
Canada Canada Succession to the Throne Act, 2013 (Bill C-53) passed on 26 March 2013.[79][full citation needed] (facing legal challenge) 27 March 2013[79]
Grenada Grenada Realm's government asserts that domestic legislation is not required to implement the changes.[80]
Jamaica Jamaica Realm's government asserts that domestic legislation is not required to implement the changes.[78]
New Zealand New Zealand Royal Succession Act 2013 (Bill 99-1) passed 10 December 2013.[81] 17 December 2013[82]
Papua New Guinea Papua New Guinea Realm's government asserts that domestic legislation is not required to implement the changes.[78]
Saint Kitts and Nevis Saint Kitts and Nevis Succession to the Crown Bill, passed 8 July 2013[83] Yes
Saint Lucia Saint Lucia Legislation passed.[1] Yes
Saint Vincent and the Grenadines Saint Vincent and the Grenadines Legislation passed in 2013.[84][85] Yes
Solomon Islands Solomon Islands Realm's government asserts that domestic legislation is not required to implement the changes.[78]
Tuvalu Tuvalu Realm's government asserts that domestic legislation is not required to implement the changes.[78]
United Kingdom United Kingdom Succession to the Crown Act 2013 passed 22 April 2013.[86] 25 April 2013[86]

See also[edit]

References[edit]

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  58. ^ Section 5 (2).[2] When those provisions have come into force, the person who will actually succeed will continue to be the person who at the time of the next demise of the Crown is the heir apparent or presumptive, and the act does not alter the Accession Council's responsibility to meet for the purposes of the Act of Settlement and Acts of Union and to direct a proclamation of accession to be read in public places, as in the case of the proclamation of accession of Elizabeth II.
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External links[edit]