Roger writing the LAWmag
Mar 2012

That Pungent Royal Wedding

When horns blare and white-ponies drive up to Westminster Hall on the occasion of Royal weddings, the pomp and circumstance financed by the Lords and Ladies of Royal England will drown out the smell from the sewers below, in which runs the strong and pungent waters of a medieval law, the Act of Settlement, a law which grants political power based not on merit but on birthright and, excludes from the highest places of that political power, persons excluded only because of their gender, religion or that in law they are mere bastards.

This, in England, circa April 2011.

The Facts

According to an official, very much in-force English law (Act of Settlement, 1700), males heirs have precedence over females (the present Queen Elizabeth II, aka Elizabeth Windsor) only got her job because her father George Windsor had no sons.

Elizabeth WindsorThe legal basis for the English throne, that expensive antiquity which fascinates so many that reside in Commonwealth countries, also prevents those born out of wedlock from acceding to the British throne.

And that's not all: Catholics need not apply. In fact, any Protestant members of the British Royal family who infects his or her Holy DNA with a marriage to a Catholic loses all entitlement to the Throne and can never become King or Queen of England.

There is no ban on Muslims or Jews; just Roman Catholics, the second largest religious community in England.
The controversial wording:


"Provided always and it is hereby enacted that all and every person and persons who shall or may take or inherit the said crown by virtue of the limitation of this present Act and is are or shall be reconciled to or shall hold communion with the See or Church of Rome or shall profess the Popish religion or shall marry a papist shall be subject to such incapacities as in such case or cases are by the said recited Act provided enacted and established. And that every King and Queen of this realm who shall come to and succeed in the imperial crown of this kingdom by virtue of this Act shall have the coronation oath administered to him her or them at their respective coronations according to the Act of Parliament made in the first year of the reign of his Majesty and the said late Queen Mary intituled An Act for Establishing the Coronation Oath and shall make subscribe and repeat the declaration in the Act first above recited mentioned or referred to in the manner and form thereby prescribed."

The clear violation of the basic human rights of Roman Catholics and of children "born out of wedlock" is a cancer not only to England but to every citizen of the so-called Commonwealth. For Elizabeth I is not only the Queen of England. The pungent waters personified by Elizabeth Alexandra Mary Windsor run wherever she is queen, and she is the Queen of Canada, Scotland, Wales, Ireland, 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.

Judicial Deference

In 2003, Canadian politician Tony O'Donuhue challenged the Act of Settlement, which had sneaked into Canadian law because of the 1867 British North America Act. But Justice Paul Rouleau refused to breath life into the Charter of Rights and dismissed the judicial application saying that since Canada was apparently a monarchy by choice, it was implied that it accepted the rules of that monarchy.

Dominionship, it seems, had come at a price:

"Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen."1

Even in 2011, the image of England's queen, Elizabeth Windsor is on coins, stamps of all Commonwealth countries. As if the image of a queen, even in 2011, can ensure peace and order, paintings of her are put in prominent places within parliamentary buildings, courthouses and schools. Images of God is not allowed ... but the queen, well, she's "the one".

And so like the English judges, barristers and clerks that still pull white wigs over their heads with the fervent opinion that it enhances the administration of justice, the Act of Settlement is still good law.

Just ask any Lord, Lady, Earl or Baron, Dukes or whatever other names hoidy-toidy Brits can dig up from the peerage barrel:

  • In 1988, George Windsor, 29th in line to the Throne, gave up this right when he married a Roman Catholic Canadian, and divorcée, Sylvana Tomaseli.

  • In 2008, Peter Phillips, the 11th in line to the English Throne, proposed to Canadian Autumn Kelly. She's no dummy, quickly converting to the Protestant faith.



Once a decade, the Act of Settlement is raised as a matter of public debate in London but the furor always peters out. That is because the entire upper class of England is built upon a foundation of birthright and privilege - not merit.

As a fish rots from the head down, the head of government and indeed, the entire Parliamentary body known as the House of Lords, are appointed from maternity wards, not on merit; for law geeks: an aristrocracy, a monarchy: not a meritocracy.

Simply, there is no ingrained culture of equality among the country's elite but there are obvious, ever-powerful economic reasons not to upset the apple cartOpportunity Knocks.

But the Act of Settlement may yet be assassinated by a bullet from Luxembourg. The European Union's Court of Justice has two very interesting documents in their great library: Charter of Fundamental Rights and a Convention for the Protection of Human Rights and Fundamental Freedoms. Both documents protect freedom of religion and prohibit discrimination based on "sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited."

What Canadian Justice Paul Rouleau chose not to, or could not see through the constitutional fog before him, the European Court of Justice would cut right through. Within that Union are states that have seen the folly, and paid the ultimate price of theocracies and monarchies.

The elite of England are nothing if not creative when their caste system is challenged. The latest defence is fantastic. When a committee of the House of Commons of the United Kingdom suggested that the Act of Settlement would not pass muster against the European Convention for the Protection of Human Rights, the former Prime Minister Gordon Brown replied that he'd be happy to review the issue but for that, he'd prefer to defer to leadership from other Commonwealth member; heavyweights all! Well-known powerhouses at the United Nations such as Grenada, Tuvalu, Saint Lucia, Saint Vincent, the Grenadines, Antigua, and Nevis.

Other official excuses given:

  • Too complex;
  • Controversial;
  • Would raise other major constitutional issues.

Many private members bills have been tabled and all ignored by the Government of the day. One chilling rumbling heard from Westminster is that the United Kingdom withdraw from the European Convention on Human Rights.

The current rules of succession raise a basic, core question for England, holding itself out to be a modern democracy. With all the fanfare given to multiculturalism, civil and social equality, clear gender and religious discrimination institutionalized in law is like the parent telling the children to do what it is told, not what the parent is doing.

But now the children-states of England are growing up. In 1999, the Scottish Parliament resolved that:


"[T]he discrimination contained in the Act of Settlement has no place in our modern society."

Some politicians in Canada have spoken up, such as the then-deputy prime-minister John Manley in 1997.

What You're Cheering For

Crown of EnglandAnd so from a courtroom far away from Chancery Lane and Buckingham palace may yet and soon come the ultimate words and injunction to the British Government to shape up or ship out.

As the world is witness to a marriage which oozes the Act of Settlement ... throws flower petals on it and sees it paraded in fairy-like carriages drawn by white horses, the faint bagpipes of the European human rights lawyers can be heard, but not yet seen, over the horizon.

A more welcome sound could hardly be imagined; a stir which would cause England and its follower-states to do what England ought to do: to raise the Union Jack no longer as a symbol of human rights hypocrisy but of the beacon for legal leadership with an adaptive, modern, progressive, fair and just common law and like the statute of Lady Justice that adorns the peak of Old Bailey, blind to religion, marriage and gender.


Canada's first flag

Posted in Duhaime's LawMag, Law Fun

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