Why Canada must take on Britain over the 1701 Act of Settlement

by NORMAN SPECTOR

Published in today's Globe and Mail, August 30, 2007
Reprinted at The Monarchist with the express permission of the author

For a Canadian monarchist, the joyous news this summer came by way of an announcement that Peter Phillips, the only son of Princess Anne, was engaged to Autumn Kelly of Montreal. The not-so-happy news came a few days later in The Daily Telegraph, which reported that Mr. Phillips will have to renounce his claim to the throne if he proceeds with the marriage.

Ms. Kelly, it turns out, is a Roman Catholic -- as are the plurality of Canadians. That marriage to any Canadian would disqualify the Queen's grandson from becoming Canada's head of state is absurd. Though renunciation in these circumstances is not without precedent in Britain, the prospect of Mr. Phillips being subjected to religious bigotry is so repugnant to Canadian values that Prime Minister Stephen Harper cannot allow it to stand.

The situation in which we find ourselves is the result of the 1701 Act of Settlement, by which the Parliament of England settled the question of succession. Under its terms, the throne passed to Sophia of Hanover, the granddaughter of James I of England/VI of Scotland. Catholics and any royal who married a Catholic were ineligible from ascending the throne "for ever."

Other than the fact that we're discussing Canada's head of state, all this history is very foreign to the Canadian experience. For example, in 1774, the Parliament at Westminster gave Catholics the then-unprecedented right to sit in the legislature of Quebec. And nearly a century after that, the British North America Act, Canada's first constitution, contained explicit provisions protecting the education rights of Protestants in Quebec and Catholics in Ontario.

As Ontarians are now rediscovering, some forms of religious discrimination may be inconsistent with Canadian values but, as part of the Constitution, are not subject to the Charter of Rights. On the question of religious discrimination as it relates to the British monarchy, which is entrenched in the Constitution as Canada's head of state, our courts similarly dismissed a Charter challenge launched by former Toronto alderman Tony O'Donohue.

As in the case of Ontario's education system, therefore, the remedy must be through political action. Fortunately for Mr. Harper (in contrast to the current Ontario debate over education), there would be little downside for a Conservative - whose party has been on its back foot with Catholic voters since the hanging of Louis Riel - in taking on this religious discrimination frontally with British Prime Minister Gordon Brown.

Unlike Canada, the United Kingdom has no written constitution, and thus no complicated amending formula to traverse. All that would be required to end this anachronistic discrimination is a legislative amendment at Westminster.

In the 2005 British election campaign, then-Conservative leader Michael Howard promised to eliminate the prohibition against Catholics if his party were elected. While Mr. Brown may not welcome a Canadian request as he ponders an early election, Mr. Harper should not shy away from standing up for Canadian values even if it means a dust-up with his British counterpart.

To prepare the ground, it would be wise for Mr. Harper to signal informally to Mr. Brown that such a request will be forthcoming. At the same time, Canadian diplomats should be mobilized to seek the support of other Commonwealth countries for an amendment to the Act of Settlement. With enough pressure, there is every prospect to believe that Mr. Harper would succeed in his demand.

As a fine strategist, Mr. Harper will no doubt want to think through his fallback position should the request be rejected. In this situation, Mr. Harper would have the option of appointing Mr. Phillips or, better yet, Ms. Kelly to be Governor-General, Canada's de facto head of state.

At the same time, the Prime Minister could declare that it would be his intention to make this appointment a recurring one, in order to create a Canadian line of succession. If the graft takes and the opportunity presented itself, the link to the British monarchy could eventually be severed by a constitutional amendment. By domesticating the monarchy, we could remove a major bone in the throats of many of our French-speaking compatriots, without the downside of having to transform Canada into a republic.

Norman Spector is a fellow monarchist, a former chief of staff to the Prime Minister of Canada and a former Canadian ambassador to Israel and the Palestinian Authority, as well as High Commissioner to Cyprus. He is currently a columnist with the Globe and Mail and blogs at Norman's Spectator. His full BIO can be found here.