The Conservatives have now tabled the legislation that will, in the words of the official news release, “end the practice of placing male heirs before their elder sisters in the line of succession” and “remove legal provisions that render heirs who marry Roman Catholics ineligible to succeed to the Throne.”
James Bowden and Philippe Lagasse argue this is a constitutional change that requires provincial consent.
According to s. 41(a) of the Constitution Act, 1982, any amendment to the “office of the Queen” requires the unanimous consent of Parliament and the provincial legislatures. Arguably, the succession to the throne touches on the office of the Queen because the Crown is a corporation sole…
Of course, admitting that succession falls under s. 41(a) invites all sorts of unwanted political complications. It would allow any provincial legislature to block or slow a change to Canada’s rule of succession, and there is one particularly antimonarchical provincial government that might see this as a perfect occasion to create controversy.
The government argues otherwise.
The changes to the laws of succession do not require a constitutional amendment. The laws governing succession are UK law and are not part of Canada’s constitution. Specifically, they are not enumerated in the schedule to our Constitution Act, 1982 as part of the Constitution of Canada. Furthermore, the changes to the laws of succession do not constitute a change to the “office of The Queen”, as contemplated in theConstitution Act, 1982. The “office of The Queen” includes the Sovereign’s constitutional status, powers and rights in Canada. Neither the ban on the marriages of heirs to Roman Catholics, nor the common law governing male preference primogeniture, can properly be said to be royal powers or prerogatives in Canada. As the line of succession is therefore determined by UK law and not by the Sovereign, The Queen’s powers and rights have not been altered by the changes to the laws governing succession in Canada.
Meanwhile, British Labour MP Paul Flynn is proposing an amendment to the legislation in the British House that would allow for the possibility of a royal same-sex marriage.
MPs are being urged to consider what would happen if a gay king or queen had a child through artificial insemination or adoption. Labour MP Paul Flynn is tabling an amendment to the succession to the crown bill which would allow the child of a monarch in a civil union to become heir to the throne – even if they do not share the same royal bloodline.