Tag Archive: Great Britain

The Royal Baby Bill May Have Not-So-Royal Implications for the Canadian Constitution

British Prime Minister David Cameron set in motion a change to the 300 year-old rules governing heirs to the throne by proposing a bill (hereinafter the Royal Bill) to modify the Royal line of Succession. The modification would eliminate the preference for men over women as heirs to the throne. As the rule currently exists, a female heir may only take the throne if she does not have any brothers – older or younger. However, in October 2011 at the Commonwealth Heads of Government meeting, all 16 countries agreed to modify the centuries-old succession rules.

While all 16 Commonwealth countries have provided written agreements to modernize the rules, each country is still subject to its own legislative procedures. However, this has presented some legal issues for passage in the Canadian Commonwealth. Under Canadian jurisprudence, as quoted by CBC News, the 1701 Act of Settlement is “part of the laws of Canada” and the rules of succession are “by [necessity] incorporated into the Constitution of Canada.” The Canadian Constitution requires that an amendment regarding “the office of the Queen” can only be made when the House, the Senate, and the legislative assembly of each province agree.

This constitutional provision raises several interesting questions.  Does this bill concern the office of the Queen? Or is it just concerning the succession to the throne? One argument proposed by Saskatchewan, as reported by CBC News, claims the Canadian Constitution is only defining the monarch as the monarch of England – whoever that may be. Under this view, the only change that would require unanimous provincial support would be changing this definition. On the other hand, some argue that if the provinces allow the government to “overlook their constitutional right to weigh in on this matter” they may be fundamentally limiting their constitutional right to weigh in on future issues. Any attempt to amend the rules of succession without provincial support may prompt a judicial challenge to the limits of the young Canadian Constitution (patriated in 1982).

However, any delay in passage by one or more Commonwealth Countries will not delay the effective date of the bill.  Any change to the rules of succession will apply to any baby born after the October 11, 2011 agreement. Once passed, the effects of the Royal Bill will be imposed on the unborn child of Prince William and Catherine, Duchess of Cambridge. As a result, if William and Kate have a little girl, their daughter cannot subsequently be bypassed in line as heir to throne if they later have a son.



Scotland: Independence and EU Membership

An imminent issue is whether Scotland, if it becomes independent, would automatically keep its European Union membership after seceding from the UK. This issue is being raised because there are clear accession rules as to how a State can join and withdraw from the European Union.

Alex Salmond, the First Minister of Scotland, announced his plans to hold a referendum in the fall of 2014 about Scotland leaving the UK and gaining independence. This announcement by Salmond created conflict between Edinburgh and London. Scotland and England were joined by the Act of Union, passed in 1707, which created the UK (which also includes Wales and Northern Ireland). As of today, the head of state of Scotland is Queen Elizabeth II and Scotland has its own government, legal system, and legislature along with representatives in the UK Parliament. The British government has stated that Scotland’s powers do not include constitutional issues and, therefore, a referendum on independence would be illegal. Regardless, the referendum would push the British government to meet with the Scottish government to further discuss the issue of Scotland’s plan for independence.

“A new state, if it wants to join the European Union, has to apply to become a member of the European Union like any state,” said European Commission President, Barroso. To join the EU, the applicant country must meet membership conditions (which include a free-market economy, a stable democracy and the rule of law, and the acceptance of all EU legislation, including of the euro), and then implement all EU rules and regulations. The process is explained in Article 49 of the TFEU. All current EU States must agree that the applying State may join the EU.

In addition to the legal and political issues surrounding Scotland’s independence, Scotland will face other obstacles trying to gain EU membership. The Scottish National Party (SNP) believes that Scotland will keep its current EU membership after its breakaway from the UK. Regional entities do not retain “special status under EU law”. Scotland now has imputed EU membership because the UK is an EU member state and Scotland is a regional entity of the UK. If Scotland secedes from the UK then it will no longer have EU membership and will have to apply for membership like any other county. Obtaining EU membership may be difficult for Scotland because Scotland would need the approval of the current member states including the UK. How likely is this? One cannot predict whether the UK would block Scotland’s entrance into the EU.


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