Secularisation (Clarification) Bill

A bill to clarify provisions regarding secularisation, make provision for succession to the crown, define eligible counsellors of state, and for connected purposes

BE IT ENACTED by the King’s Most Excellent Majesty, by and with the advice and consent of the Lords, and Commons, in this present Parliament assembled, and by the authority of the same, as follows -

Section 1: Repeals and Amendments

(1) After Section 8 of the Secularisation Act 2016 (B358) insert the following:

Section 9: Consequential Repeals

(1)The following acts are repealed in their entirety:

(a) Act of Supremacy 1558 (1558 c. 1), and

(b) Act of Settlement 1700 (1700 c. 2).

(2) The following act are partially repealed to the following extent:

(a) In the Bill of Rights 1688 (1688 c. 2) the sections titled “Supremacy” and “Acceptance of the Crown” are repealed,

(b) The Claim of Right 1689 (AOSP 1689 c. 28) is repealed insofar as it regulates succession to the crown and prohibits publication of Catholic literature,

(c) Article II of the Union with Scotland Act 1706 (1706 c. 11) is repealed in its entirety and Article XXV of the Union with Scotland Act 1706 (1706 c. 11) is repealed except to the extent to which that Article entrenches the existence of the Universities of St Andrews, Glasgow, Aberdeen and Edinburgh,

(d) The Protestant Religion and Presbyterian Church Act 1707 (AOSP 1707 c. 6) is repealed except to the extent to which it entrenches the existence of the Universities of St Andrews, Glasgow, Aberdeen and Edinburgh,

(e) Article II of the Union with England Act 1707 (AOSP 1707 c. 7) is repealed in its entirety and Article XXV of the Union with England Act 1707 (AOSP 1707 c. 7) is repealed except to the extent to which that Article entrenches the existence of the Universities of St Andrews, Glasgow, Aberdeen and Edinburgh,

(f) Articles II and V of the Union with Ireland Act 1800 (1800 c. 67) are repealed, and

(g) Articles II and V of the Act of Union (Ireland) 1800 (AIP 1800 c. 38) are repealed.”

(2) The Secularisation Act is renumbered accordingly.

Section 2: Succession to the Crown

(1) Succession of the Crown is limited to descendents of Her late Majesty Queen Elizabeth II and occurs on the basis of absolute primogeniture.

(2) Any religious or gender-based disqualifications or preferences are repealed.

Section 3: Counsellors of State

(1) Subsection 6(2) of the Regency Act 1937 (1937 c. 16) is repealed.

(2) There shall be a maximum of six Counsellors of State who shall be, in order;

(a) The spouse of the Monarch,

(b) The parents of the Monarch,

(c) The siblings of the Monarch, and, if necessary

(d) Any other person in the line of succession, in order of succession, who is at least 16 years of age.

(3) No person who is not domiciled in the United Kingdom shall be a Counsellor of State.

(4) A Counsellor of State who ceases to meet the requirements to be a Counsellor of State shall cease to be a Counsellor of State.

(5) The Monarch may remove any Counsellor of State, with consent of Parliament, provided that there would be at least four Counsellors of State after this.

(6) In the event of a regency, there are to be a maximum of six Counsellors of State in addition to the regent.

Section 4: Extent, Commencement and Short Title

(1) This act extends to the United Kingdom, the Crown Dependencies and all British Overseas Territories.

(2) This act comes into force 30 days after His Majesty’s Government receives notice from all other Commonwealth Realms that consenting legislation has been passed in those realms.

(3) This act may be cited as the Secularisation (Clarification) Act 2023.

This Bill was written by /u/mg9500 on behalf of His Majesty’s 31st Government

Act of Supremacy 1558

Act of Settlement 1700

Bill of Rights 1688

Claim of Right 1689

Union with Scotland Act 1706

Union with England Act 1707

Union with Ireland Act 1800

Act of Union (Ireland) 1800

Secularisation Act 2016

Opening Speech

Mr Speaker,

I am pleased to report to the House that the Government was successful in defending the Secularisation Act in the Supreme Court during the recent Frost Walker case. However, I must be honest with the House that over the course of this case, it has become clear to the Government that several aspects of this legislation are unlawful and would be considered as such if referred to the Supreme Court in the appropriate way. There is no use hiding this, and we intend to resolve it.

Firstly, it is clear that this monarchical legislation did not receive the consent of the other Commonwealth Realms, meaning that at some hypothetical point in the future the Monarch of this country may be a different person from the Monarch of the other Realms. For example, were Prince George to convert to Islam and ascend the Throne prior to having children whilst he would ascend the Throne of this country, in the other Realms Princess Charlotte would become Queen. This would diverge the successions without the possibility of convergence and it is obviously contrary to the Statue of Westminster. Thankfully, through consent being received for future legislation, such as that we are now proposing, resolves this issue before it arises.

The more pressing issue concerns the judicial doctrine of implied repeal. Basically, statues considered constitutional are exempt from the doctrine of implied repeal by which, ordinarily, if there are two contradictory statues that the contradiction is resolved by the courts in favour of the later statute. This means that the Secularisation Act, in neglecting to do this, actually from a legal sense, if challenged, would be considered null and void. This is the issue that this Bill primarily seeks to address. This Bill, in terms of secularisation does not do anything that the original Act did not.

Taking the proposed Bill section by section, section one is intended to resolve any judicial contradiction between the listed earlier statutes and the Secularisation Act in favour of the later. Admittedly, not all of these Acts may be considered constitutional but some, like the Treaties of Union, obviously are and it is our view that it is better to be safe than sorry. Apologies that a lot of these older acts didn’t use paragraphs so we have to be descriptive regarding what we are repealing, I agree that this is sub-optimal.

The Act of Supremacy broke the link between the Church of England and the Catholic Church and made the Monarch Supreme Governor of the Church. Repealing it ensures that the Monarch will not be Supreme Governor (unless of course the Monarch and the Church come to private agreement to that effect). This will not reunite the Church of England and the Catholic Church, although there is of course no provision preventing those institutions coming to that agreement privately.

The Act of Settlement ensured a Protestant Succession to the Throne based from Sophia of Hanover. This is repealed in order to create a new base, from Queen Elizabeth II, in this Act removing the necessity for the Monarch to be Protestant.

The Bill of Rights, and its Scottish equivalent, the Claim of Right, whilst excellent declaratory documents for human rights, contain substantial amounts of anti-Catholic language inappropriate for a modern society. That will be removed from the statute book. These acts also prohibit a Catholic ascending the Throne, so that must be repealed to remove any religious bar from the Throne.

The Treaties of Union contain various provisions entrenching the position of the English Act of Settlement in Scotland and, nowadays, Northern Ireland (the Laws in Wales Act being in operation in the early 18th Century, of course). These must therefore also be repealed to repeal the Act of Settlement. The requirement for the Monarch to swear an oath to the Church of Scotland was never repealed, in an apparent oversight and, as Lord President of the Council, I was required to administer the Oath to the King at the Accession Council in September. It is repealed.

The Protestant Religion and Presbyterian Church Act, entrenched through the Scottish Union Treaty, is also explicitly repealed, leaving no doubt about our intentions, although the permissibility of amending the Treaties of Union in this way is unclear and is a matter to which I will return.

Section 2 creates a new line of succession, from Queen Elizabeth II, the prospect of anyone not descended from her ascending the Throne is now so remote to be negligible. Elizabeth is used instead of Charles for reasons clear in Section 3. To write a law in the 21st century UK basing succession on a 17th century German noblewoman would just be bizarre and was not seriously considered. The second clause in this section is a washing up clause once again making our intentions as clear as possible.

Section 3 allows for the King’s desired changes to the Counsellors of State to be implemented, considering the impossibility for the Duke of Sussex and the Duke of York to carry out these duties. Provision is also made for Camilia to remain a Counsellor should Charles predecease her, the Queen Mother had required a special Act to do so in 1952.

Counsellors of State will be, in order, Camilla, the Princess Royal, the Earl of Wessex, the Prince of Wales and Princesses Beatrice and Eugenie. The latter two are present but they undertake royal duties only on occasion and that will continue. Non-working members, such as the Duke of York, who the King intends to exclude but who are not otherwise excluded have been removed from this example. Beatrice and Eugenie will of course be replaced by George and Charlotte when they attain 16 years of age and clarifying wording in the unlikely event of a Regency has been included.

If the succession had been based on Charles then the only living people eligible to be a Counsellor would be Camilia, William and the Duke of Sussex, who being domiciled in California is excluded. This was not a tenable situation, wholesale replacement of the system is something to be considered but is beyond the scope of this Bill and anyway, it seems appropriate recognition for the longest serving Monarch these islands will ever see.

Returning, finally, to the Treaties of Union. The seminal ruling in MacCormick v Lord Advocate (and some previous cases) highlighted that this Parliament’s sovereignty may be limited by entrenchment in the Treaties of Union. This limitation of Parliament's powers was also achieved by the Anglo-Irish Treaty in relation to the Irish Boundary Commission. I won’t bore the House with the details, but basically, the Government is not certain that Parliament has the competency to pass this legislation. Entrenching a Protestant Succession in Scotland was clearly a fundamental part of the Treaty of Union from the English perspective and these future Monarchs protecting the Presbyterian Church of Scotland likewise from the Scottish perspective. I cannot guarantee this Bill will stand up in Court.

In recognition of this, the Government considered seeking the King to call a meeting of the pre-Union Scottish Parliament. However, in considering some Australian case law (Whitehouse v Queensland and Kirmani v Captain Cook Cruises) it was suggested that any power was almost certainly spent. Regardless, it was unclear how the pre-Union Irish Parliament could even function, considering that there have been two states on the island of Ireland for the past century. It would have been an entirely absurd situation.

Secondly, we considered if the Scottish Parliament and Northern Ireland Assembly could act in lieu of these previous legislatures. They could not. The Monarchy is clearly a reserved and excepted matter, respectively and arranging this would have required extensive amendment of the constituting acts of these bodies. Regardless, one cannot give what one does not have and so this Parliament could not devolve to another Parliament sovereignty or powers or competency that this Parliament, in this case, would be assuming that we do not have. It would be like permitting the Senedd to legislate for Bavaria - nice but pointless.

If we do not have these powers, and I could make a perfectly respectable legal case that we do not, then I do not see who exactly does. It will appear that the UK has lost some of its sovereignty over the past few centuries and no one knows where it is. Ridiculous of course, but like so much of the UK’s constitution. The Treaties of Union can probably be ignored or repealed in their entirety, or I do not see how the Irish Free State could have been created, but doing so in part, where they clearly limit the powers of the united Parliament is dubious at best.

Regardless, we must pass this Bill in order to refer these issues (in much greater detail, naturally) to the Supreme Court as there must be an Act to be challenged in the Supreme Court. As outlined, this is clearly not relevant to devolved competence so we cannot use Schedule 6 of the Scotland Act to achieve this. So that these questions can be answered, and to protect Secularisation, I commend this Bill to the House.

This division will end on Friday 17th February at 10pm GMT.