The Rules Governing Succession

Will and Kate are expecting their first child in 2013, which has made succession an important political issue in the United Kingdom, and in the 15 other Realms that recognize Elizabeth Windsor as Queen.

In the United Kingdom, succession to the Crown operates on a mixture of the common-law principle of male-preference primogeniture and on statute laws like The Act of Settlement. The Crowns of Canada and the other Realms have inherited both sets of rules.

In November 2011, the Prime Ministers of the 16 Commonwealth Realms agreed in principle that each country should change its succession in two ways. First, male primogeniture would be replaced with equal primogeniture, so that the first-born child rather than the first-born son takes precedence in the line of succession. Currently, younger brothers overtake older sisters. Second, the provision in the Act of Settlement that prohibits marriage to a Catholic would be repealed. However, the statutory requirement that the Sovereign be a Protestant would remain intact.

Unless all 16 Realms pass legislation or constitutional amendments that implement the same basic rules on succession, the Personal Union of these 16 Crowns will break sometime after William’s reign. For instance, if the Duke and Duchess of Cambridge have a daughter first followed by a son, the older daughter would become Queen of the United Kingdom, while the younger son would become King of any other Realm that kept the unreformed rules of succession.

The British Cabinet Office reports that the Governments of the 15 other Realms had transmitted their official approval in principle to these changes by 2 December 2012, and the Cameron government then tabled the Succession to the Crown Bill on 13 December 2012. The British House of Commons Library indicated the Harper government’s position as of 19 December 2012: “that section 41 is not engaged by the proposed changes” and that the Parliament of Canada alone would pass legislation that assents to the British bill, as per the preamble of the Statute of Westminster. The Privy Council Office since confirmed on 3 January 2013 that the forthcoming Canadian bill will entail “no constitutional implications” and that it would merely “signal Parliament’s agreement” to the British bill.

In that case,, the Harper government’s bill would probably be unconstitutional and would certainly weaken the Crown over the long term. Since the Patriation of the Constitution in 1982, any alteration to the succession to the Crown of Canada requires a constitution amendment under s. 41(a), the “office of Queen,” the unanimity formula. Further, the preamble of the Statute of Westminster has become defunct in principle and was never a legally binding operative provision.

Why the Corporation Sole of the Crown Incorporates Succession

As Industry Canada explains, “a corporation sole creates a corporation out of an office. Once the corporation is established, there is no distinction between the [office-holder] and the office itself.” The office and office-holder become fused in law because a corporation sole includes only one share-holder.

The Crown of Canada is a corporation sole and thus a legal person. The Crown is the office, and the Queen (or King) is the office-holder; they are inseparable in law. The Crown therefore cannot even exist without a King or Queen, which is why hereditary succession occurs automatically, as prescribed by law. As Industry Canada also shows, the automatic hereditary succession makes possible the transfer of all properties of the Crown from one Sovereign to another, and thus the continuity of the State: “The office holder holds all property of the corporation in the name of the corporation, and may pass it on to the next office holder without the need for the property to change hands.”

The law only distinguishes between the legal person, the Crown and Queen, and the natural person, Elizabeth Windsor. For instance, the Crown-Queen of the United Kingdom can hold property like Buckingham Palace, which will automatically demise to the successor to the throne, while Elizabeth Windsor may hold personal properties like Balmoral, which change hands subject to her personal will.

The Crown as corporation sole also makes the “Personal Union” of the 16 Commonwealth Realms possible: 16 legal persons are embodied by the same natural person. Elizabeth Windsor is thus, separately, the Queen of the United Kingdom, the Queen of Canada, and the Queen of 14 other Realms. In this sense, there are 16 Queen Elizabeths but only one Elizabeth Windsor. In 1867, there was only one Crown, as the preamble of the Constitution Act, 1867 indicates. But by the Statute of Westminster of 1931, the original British Crown had divided and formed the Personal Union, which originally consisted of 7 and now stands at 16.

The Crown as corporation sole directly pertains to the succession to that office. We must determine whether the rules governing the line of succession form part of the “Office of the Queen” under s.41(a) of the Constitution Act, 1982. Since the Crown is a corporation sole, succession must necessarily form part of the “office of Queen.” In corporations aggregate (more than one share-holder), the composition of the board of directors and the method of selecting or removing those directors are laid out in the constitution of the corporation. The law requires such an internal constitution as a necessary condition of incorporation.  These constitutions form the essence of the corporation and its legal personhood.  Many corporations aggregate even refer to managing the turnover of directors of the board as “succession planning”.

For the corporation sole of the Crowns of the United Kingdom and Canada, the Act of Settlement, Bill of Rights, other relevant statutes, and the common-law principles of male-preference primogeniture all serve to regulate the internal constitution of the Crown, which by definition means “Office of the Queen”, and form the rules governing the succession to that Office. This mixture of statute law and common law makes succession to the Crown and the Crown as corporation sole sui generis. However, the Parliament of Canada has explicitly made the Office of the Governor General a corporation sole through the Governor General’s Act.

The Constitution Act, 1982 imposed an external amending formula on future amendments to the internal constitution of the Office of the Queen. By explicitly providing that the “Office of the Queen” could only be altered under the unanimity formula of s.41(a), the Constitution mandates that any changes to the Crown, including its constitutionalized powers and succession, obtain the consent of each of the ten provincial legislative assemblies, the House of Commons, and the Senate.

The British Succession to the Crown Bill would supersede the common-law principle of male-preference primogeniture and replace it with a new statutory provision on equal primogeniture. The reformed law will thus recognize the first-born child rather than the first-born son. It also amends the Treason Act, 1351, the Bill of Rights, 1689, the Act of Settlement, 1701, the Royal Marriages Act, 1772, and the Regency Act, 1937. In order to maintain the Personal Union, the other 15 Realms would have to pass legislation or constitutional amendments to the same effect as the British bill.

Why the Precedent from the Abdication Crisis of 1936 No Longer Applies

The Abdication Crisis of 1936 provides the closest precedent to the current situation, but not one that Canada could follow today. In December 1936, the King government asked that the Westminster Parliament legislate for Canada in the bill that confirmed Edward VIII’s abdication and George VI’s accession to the throne. The Parliament of Canada gave its assent retroactively through a law passed in March 1937, because it had been adjourned the previous December. The King government therefore violated the preamble of the Statute of Westminster, which calls for the assent of the Dominion’s Parliament, but conformed to the operative provision of section 4, which only called for the assent of the Dominion in general.

The Harper government’s plan that the Parliament of Canada “signals its agreement” to the British bill mimics the procedure of 1936 and implies that the British parliament can still legislate for Canada. But this method would only have worked between 1931 and 1982. It also relies on a defunct and inoperative clause in the preamble of the Statute of Westminster: “any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.” (Even in 1936, the King government did not follow it). This clause helped interpret section 4 of the Statute of Westminster, and only made sense in conjunction with that section, which allowed the British Parliament to legislate for a Dominion upon its request and with its consent.

The Patriation of our Constitution in 1982 abolished this old arrangement by establishing the exhaustive set of five constitutional amending formulas in Part V of the Constitution Act, 1982. The Constitution Acts incorporated an amended version of the Statute of Westminster that saw the repeal of section 4 and section 7(1). Since 1982, only the Parliament of Canada has been able to legislate for Canada, so the Parliament of Canada no longer merely “signals its agreement” to a British bill. In 2013, Canada must alter the rules governing the succession to the Crown of Canada pursuant to its own Constitution.

How The Harper Government’s Bill Would Threaten the Crown of Canada

The Harper government probably wants to avoid creating controversy over these technical amendments to the rules that govern succession to the throne. In the short term, a bill passed by the Parliament of Canada alone seems desirable because it would prevent one provincial assembly from vetoing a constitutional amendment under the unanimity formula of s.41(a).

But whether such an amendment passed or failed, the Crown of Canada would retain its position in the Constitution. Canada is an independent, sovereign country and could break with the Personal Union. If the amendment failed, the status quo would prevail, and the Personal Union would not risk breaking apart until after the reign of William. If the amendment passed, the Crown of Canada would remain part of the Personal Union and retain its overall centrality within the Constitution.

Over the long term, the Harper government’s approach would pose an existential threat to the Crown of Canada in at least two ways. First, if succession to the throne does not fall under the Constitution of Canada, then the rules governing succession immediately become subject to the Charter, which exposes the Protestant succession, or even the hereditary principle itself, to litigation. Second, it will only lend legislative credibility to the republican motif that Canada is a “colony ruled by a British monarch” and that the British can dictate our legislation.

In 2003, the Superior Court of Justice of Ontario dealt precisely with this issue in the O’Donohue case. Justice Rouleau noted that Ontario had incorporated the Act of Settlement, and therefore the succession, into its provincial law by 1897; he also ruled that the Act of Settlement forms part of the Constitution of Canada. His ruling suggests that the Harper government’s plan would be unconstitutional.

The Government should follow a constitutionally consistent approach to altering succession, even though it will take more time, in order to protect the Crown’s central place in the Constitution.

James W.J. Bowden is an M.A. Candidate at the University of Ottawa. He blogs regularly at www.parliamentum.org.

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