Paul Arnell: Progress has been made – but still some way to go

THE announcement in Australia by the 16 countries where the Queen is head of state to end the discriminatory practice favouring male children in succession to the throne has been almost universally welcomed.

First Minister Alex Salmond, for example, stated: “I welcome the fact that progress has been made on this issue, which has been an impediment in the message of equality of faith and gender in society”.

He drew reference to one of the first motions of the re-established Scottish Parliament in 1999. It called for the end of the discrimination and the repeal of the Act of Settlement of 1701.

The Act of Settlement in effect gives preference to males over females in succession.

It ties succession to Protestant heirs and prohibits accession to the throne by persons who are Roman Catholics or marry a Roman Catholic.

The Act of Settlement also provides that the Sovereign must join in Communion with the Church of England.

The Treaty of Union 1707, bringing England and Scotland together as Great Britain, provides by article 2 that succession to the united throne be according to the Act of Settlement.

The change to the rules governing succession to the throne will have to be made by the legislation within the Commonwealth – not until this co-ordinated legislation has been enacted and brought into force will the law change. The law will be prospective, with the first born child the Duke and Duchess of Cambridge, William and Kate, eventually ascending to the throne regardless of sex.

The change in the law is to be welcomed, but it does not go far enough. On no grounds can discrimination on the basis of sex in succession to the throne be defended.

Indeed, and somewhat ironically given the present UK government’s apparent antipathy towards European human rights, article 14 of the European Convention on Human Rights prohibits discrimination on the basis of sex.

The change can be criticised for not going far enough because those ascending to the throne remain obliged to be in communion with the Church of England.

As Mr Salmond has said, the leads to the change being “a missed opportunity to ensure equality of all faiths when it comes to the issue of who can be head of state”.

The amendment of law over three centuries old is to be welcomed but also rued as an opportunity lost.

• Dr Paul Arnell teaches in the department of law at Robert Gordon University in Aberdeen.