John McTernan: Question the Act of Succession, not Settlement

When Scottish news is running low, as it invariably does during the holidays, there's one sure-fire way to get a row going and generating some coverage. Demand that the Act of Settlement be amended to remove the bar on members of the Royal Family marrying Catholics.

Bang on schedule, a Labour frontbencher has done just that by accusing the current Secretary of State for Scotland Michael Moore of "dereliction of duty" by doing nothing to remove this "blatant discrimination against Catholics". And right on cue Cardinal Keith O'Brien's spokesman steps in to up the ante, saying: "Frankly, we still think the Act, apart from being unjust, is ultimately a serious barrier to tackling problems like sectarianism and anti-Catholic bigotry in Scotland."

It's at this point that one's patience starts to fray. What on earth is the evidence for this extraordinary statement? None is supplied. It's traditional in this discussion for the assertion to pass as fact. Luckily the Scottish Government did work on this to support Jack McConnell's work on anti-sectarianism. Their statisticians have surveyed the evidence, and the key fact they unearthed is that only 1 per cent of Scots reported that they had experienced discrimination on the grounds of religion.

So, we don't actually have ingrained anti-Catholic bigotry. Which, for those of us who grew up Catholic in Scotland shouldn't actually come as a shock. Abusive chants at football matches do not apartheid make. But even more telling is the finding cited from the Scottish Social Attitudes Survey that Scotland is not a multi-faith country - rather it is "a former Christian society that now has a large minority of active Christians".

The largest faith group in Scotland is those of no faith. So, in one sense the debate about the Act of Settlement is a classic example of the closed community which is our political elite just not getting it. The country has moved on.

One of the most laughable points made against the Act of Settlement is that it caps the aspiration of young boys and girls growing up Catholic. The real point is that we're growing up out of faith. The churches get to commentate because they have press officers - the faithless majority watch in bemusement as this disconnected debate goes on.

What, though, of the substantive issue? Is the Act of Settlement institutional discrimination, and could - let alone should - it be amended? In one sense, it plainly discriminates against Catholics, but that is surely not a surprise. The United Kingdom is a Protestant country with an established church. The monarch is head of that church and it seems not unreasonable that the head of a Protestant church should themselves be a Protestant.There are few campaigners for the converse - a Wee Free candidate for Pope, for example.

If you are serious about amending the Act of Settlement then you have to embark on disestablishing the Church. Which leads to the crux of the issue. The UK's head of state is Queen Elizabeth II. She is also the head of the Church of England. When she became monarch she swore solemn oaths which imposed duties on her as she assumed powers. Among her powers are the approval of any legislation passed by her parliament.

Royal Assent is a term that is casually used. It is taken for granted that it will always be granted. But imagine a bill that amends the Act of Settlement - and therefore undermines the oaths the monarch made at her coronation. Will the Queen give it Royal Assent? Really? No-one who has ever held a senior level in government can imagine that as a possibility.

This is not even to mention that the Act of Settlement sits at the heart of a web of legislation. Our Queen is also Australia's, Canada's, Jamaica's - and more than 20 other countries. Change the terms on which she reigns here and they all have to legislate to legitimate it. Likely? Not at all.

Even if their governments had any inclination to let Britain have its way, it just isn't a priority. Again, anyone who has ever fought for parliamentary time for their own legislation knows how scarce and precious it is. There is little chance that other countries' parliaments would prioritise - or even spare - time for a legal change demanded by the UK.

For Scotland the issue is even more complex. The union of the crowns preceded the union of the parliaments. The Act of Union was predicated on the Act of Settlement. When Scotland united with England we accepted the rules - two Protestant countries came together with a Protestant monarch. To change the Act of Settlement would require unravelling the Act of Union. Who really wants that?

Probably the biggest unasked question about the Act of Settlement is who actually cares? There are not generations of young Catholics growing up with the ambition of becoming the monarch's consort only to have their hopes dashed by the cruel legislation that bars them from this one position in life. Nor are there football fans who tell each other: "This obscene sectarian chant is definitely OK because the Act of Settlement says so." The loudest political quarrels are invariably about the things that matter the least - all heat and no light.

It's the real issues that get ignored. The first of these is who really faces religious discrimination in Scotland. Arguably the most oppressed Scottish Christians are not Catholics but conservative Protestants whose beliefs are routinely mocked. But it's not fashionable to defend the Free Church, even though, as Voltaire observed, the key to free speech is the duty to defend people you don't agree with.

Second is the question of monarchy itself.The debate about the Act of Settlement is, in effect, about the absurdity of the rules that allow you to become monarch. Surely the true absurdity is the idea that in 21st century Britain - one of the world's greatest countries - should allow the position of head of state to be inherited. Why is the very existence of the monarchy not questioned, rather than simply the rules of access?