Treason Felony, Act of Settlement and Parliamentary Oath

– in the House of Commons at 5:15 pm on 19th December 2001.

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Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North 5:15 pm, 19th December 2001

I beg to move,

That leave be given to bring in a Bill to amend section 3 of the Treason Felony Act 1848 in order to establish that it is no longer an offence to express an opinion in favour of republicanism or advocating the abolition of the monarchy;
to amend the Act of Settlement to provide that persons in communion with the Roman Catholic church are able to succeed to the Crown;
to amend the law relating to the parliamentary oath;
and for connected purposes.

As The Guardian said this morning, this is a modest measure. In July 2000, my noble Friend Lord Parekh presented a sadly neglected report from the Commission on the Future of Multi-Ethnic Britain. He concluded that we are at a turning point in our history and can become inward looking or develop as

"a community of citizens and communities".

He called for politicians to show the courage of leadership.

My right hon. Friend the Secretary of State for Northern Ireland has also called for leadership. He said that what Northern Ireland needs from its politicians, perhaps now more than ever before, is a common vision of a new inclusive society. A good starting point, he continued, would be a determination to tackle sectarianism. He described sectarianism as

"a virus at the heart of Northern Ireland".

Sectarianism taints every aspect of life that it touches.

The Bill would strike at discrimination and intolerance in our society. I am looking to assist the process of inclusion—my right hon. Friend the Prime Minister's big tent. Some of the laws that I seek to amend are very old but that does not mean that they cease to have effect.

The Bill is about putting our own House in order and recognising where tradition may directly or indirectly exclude a section of the community. It is about recognising those aspects of our traditions that may inadvertently cause offence and those that are in conflict with our commitment to a multi-ethnic future.

Agreement to proceed with the Bill will have a dramatic effect. It will demonstrate the will of the House to modernise the constitution and all its workings. It will bring the foundations of our democracy into line with our obligations to protect human rights and fundamental freedoms. It was a proud moment when this Parliament put into legislation the European convention on human rights.

The first part of my Bill concerns the Treason Felony Act 1848. At the end of the last millennium, The Guardian wished to publish a series of articles advocating a republican Government in the United Kingdom. It was, however, prevented from doing so because section 3 of the 1848 Act makes it a felony not only—in this case very properly—to levy war against Her Majesty but to

"compass, imagine, invent, devise or to deprive or depose" her. Persons found guilty of such imaginings or of expressing their intention to abolish the monarchy, even by exclusively democratic and peaceful means, would be committing an offence punishable by life imprisonment.

Anyone who is familiar with article 10 of the European convention on human rights knows that under the terms of the convention:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities".

So the publishers and proprietors of The Guardian wrote to the then Attorney-General seeking permission to publish such articles. Failing that, they would seek a declaration in the High Court that section 3 of the Treason Felony Act 1848 should be interpreted in accordance with the Human Rights Act 1998 and, consequently, that existing law would not criminalise the author of a newspaper article advocating peaceful change to a republic.

On 8 December 2000, the then Attorney-General wrote:

"It is not for any Attorney-General to disapply an Act of Parliament; that is a matter for Parliament itself."

With this Bill, I intend to address the shortcomings of the 1848 Act; to make clear that it is no longer an offence to seek a change in the nature of government by democratic and peaceful means; and to give the House the opportunity to start disapplying.

The second part of the Bill would amend those aspects of sections 2 and 3 of the Act of Settlement 1701 dealing with succession to the throne, in order to remove discrimination against Roman Catholics. The Act is extremely offensive in that regard. It stipulates that

"those who profess the Popish religion" can neither be monarchs nor marry into the royal family.

In December 1999, Members of the Scottish Parliament unanimously adopted the following motion:

"That the Parliament believes that the discrimination contained in the Act of Settlement has no place in our modern society, expresses its wish that those discriminatory aspects of the Act be repealed".—[Scottish Parliament Official Report, 16 December 1999; Vol. 3, c. 1636-37.]

However, the repeal of such legislation is a matter reserved for the United Kingdom Parliament, so we should address it.

I am not persuaded by those who say that to enshrine sectarianism in legislation is unimportant or by those who argue that such a move would require legislation in all the 15 Commonwealth countries that recognise the Queen as their head of state. It is important, and we can act without reference to those other kingdoms.

Article 9.2 of the European convention on human rights provides:

"Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

Our European partners in Luxembourg, Spain, Belgium and the Netherlands all maintain a constitutional monarchy. None requires the restriction of access to the throne on the ground of religious belief.

The Prime Minister is on record on this issue. He shares my belief that the anti-Catholic aspects of the Act of Settlement are plainly discriminatory. I was happy to note that he promised to re-examine the issue during his second term. This is his second term and my Bill would permit the House to offer him the opportunity to conduct that re-examination.

The final aspect of my Bill relates to amendment of the Oaths Act 1978. Such amendment would address from a different angle matters raised in the Chamber yesterday. It would remove the requirement that an elected Member of Parliament take the present Oath of loyalty to the monarch and would provide an alternative—a modern oath of affirmation. The Oath could take the form suggested by my right hon. Friend, the former Member for Chesterfield, Tony Benn:

"I do solemnly Declare and Affirm that I will, to the best of my ability, discharge the responsibilities required of me by virtue of my membership of the House of Commons and faithfully serve those whom I represent here."—[Hansard, 29 July 1998; Vol. 317, c. 379.]

Such an alternative—it would not be mandatory—would cover the point and would get rid of many of our current problems.

Since I last argued this matter, I have had the benefit of a ruling by the European Court of Human Rights in the case of Buscarini and Others v. San Marino. In that case, three individuals elected to the Parliament of the Republic of San Marino challenged the requirement that they take the oath as prescribed by law. They submitted that the exercise of a fundamental political right such as holding parliamentary office should not be subject to publicly professing a particular faith—in breach of article 9 of the European convention.

The Government of San Marino maintained that the wording of the oath was not religious but

"historical and social in significance and based on tradition" and that the form of words at issue had

"lost its original religious character".

The European judges stated that the freedom of thought, conscience and religion enshrined in article 9 constitutes one of the foundations of a "democratic society" within the meaning of the convention. The Court's comments regarding article 9 are important for us. It explained that

"it would be contradictory to make the exercise of a mandate intended to represent different views of society within Parliament subject to prior commitment to a particular set of beliefs"— to the taking of a particular oath.

I believe that we can get rid of the indignity and absurdity that have characterised the taking of the Oath. We can return to a situation where the occasion is treated with solemnity, because people will return to a position where they are doing something voluntarily, not because it is insisted on or directed, and they can do it with a free conscience.

These three measures—the right to argue, without fear of punishment, for a republic or to replace the monarchy; the right to marry a Catholic or be a Catholic and still be able to be the head of state, and the right of the Oath—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. Time is up.

Photo of Ian Paisley Ian Paisley Leader of the Democratic Unionist Party 5:25 pm, 19th December 2001

I oppose the motion. Mr. McNamara is seeking to undermine the constitution, all through the dominion of what we call a ten-minute rule Bill. He has raised matters of deep constitutional meaning, which have a meaning for us all. Surely if we are going to review—and change—the constitution of this United Kingdom, that deserves more than a ten-minute Bill, because such a Bill has neither the time nor the capacity to deal with such issues.

I want to take up some immediate questions. The hon. Gentleman laid great emphasis on Europe, and on how Europe feels, and said that those in Europe look upon our constitution as bigoted and discriminatory. However, article 16 of the constitution of Spain underscores the special relationship of Spain with the Roman Catholic Church, and says that the only successors who may enter into the monarchic relationship in Spain must be successors of His Majesty Don Carlos. That house is of course a strictly Roman Catholic house, and those successors are strictly Roman Catholic.

In Belgium, which is also a Roman Catholic country, the king himself—not the law but the king—can decide who his successor should marry, and if the successor marries without the king's consent he cannot be king. The written constitution says that the rightful succession is through the descent of the Roman Catholic Saxe-Coburg dynasty.

In Sweden, which is also a member of the European Union, the king must always profess the pure Evangelical Lutheran faith as adopted and explained in the unaltered Constitution of Augsburg. According to the resolution of the Uppsala meeting in the year 1593, princes and princesses of the royal house must be brought up in the same faith and within the realm. Any member of the royal family not professing that faith will be excluded from all rights of succession.

Let us look at Denmark, which is also a member of the European Union. Part 2 of its constitution states that the king shall be a member of the Evangelical Lutheran Church, and according to section 4 of the constitution, the Evangelical Lutheran Church shall be the established Church of Denmark.

If one looks to the Netherlands, one finds in article 24 of the constitution that the succession to the throne is hereditary and limited to the legitimate descendants of King William I—not King William III, but King William I, Prince of Orange: a Protestant succession indeed.

So two Roman Catholic countries in the European Union say that they should have a Roman Catholic monarch, and the other countries that I have mentioned say that they should have a Protestant monarch.

The emphasis of the Bill of Rights of 1688 was not on religion, but on the security of this nation, and the Act is based on that security. Under the reigns of Bloody Mary and King James, this nation learned that it was not safe. That was the basis on which that Bill was drafted, and the Williamite revolution settlement is the basis for our constitutional position.

The Williamite revolution settlement has served this nation well in the past, and to say now that our hands should be put to the job of dismantling that settlement is strange, for we do not know what people want to put in its place. What will be put in the place of the Williamite revolution settlement?

I do not hear any agitation among nonconformists about the fact that the Queen is the supreme governor, or head, of the Church of England. They do not say that that is a terrible thing and that they are slighted because the monarch cannot be a nonconformist. I do not hear that at all, and I tell the House that we should not put our hands to destroying something that has served this country well, and replace it with something that is the subject of debate in a courthouse in Europe.

Those in Europe seem to be saying, "Don't do as we do, do what we say you should do." Let them deal with those matters before they lecture the House and the United Kingdom and tell us that we are discriminatory and bigoted. That is a matter that they have to face up to, and they should do so realistically. The House would be well advised to say, "No. We cannot put our hands to such a proposal at the present time." However, if the Government are interested in this matter, as they have stated, it is their responsibility to propose such a Bill and to give proper time for its debate, argument and consideration.

Question put, pursuant to Standing Order No. 23 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of public business):—

The House divided: Ayes 170, Noes 32.

Division number 122

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Bill ordered to be brought in by Mr. Kevin McNamara, Ann Clwyd, Mr. Edward O'Hara, Paul Flynn, Mr. Malcolm Savidge, Jeremy Corbyn, Mr. Alex Salmond, Mrs. Alice Mahon, Andrew Mackinlay, Kevin Brennan and John Austin.