|Since the time of the Act of Settlement there has been but one statutory alteration of the succession law. King George VI was a case of succession upon abdication, although he was the heir apparent103. His Majesty's Declaration of Abdication Act 1936104 was passed in accordance with the procedures of the Statute of Westminster 1931,105 and so was applicable in New Zealand. Since then however, there have been no statutory alterations to the law of succession in either New Zealand or the United Kingdom, nor is the procedure in the Statute of Westminster 1931 and the Statute of Westminster Adoption Act 1947 (NZ) likely to be used again, even solely for the purpose of altering the law of succession.
However, the development of a distinct New Zealand Crown means that the succession law in New Zealand must be seen to be separate from that in the United Kingdom, though they presently have identical provisions. Whether they remain identical is a matter yet to be decided.
IV. CIRCUMSTANCES IN WHICH THE SOVEREIGN OUGHT TO BE CHANGED
At common law the accession of the Sovereign may be automatic, so that there is no interregnum, though the accession does involve a number of legal procedures.106 On the death of the reigning Sovereign the Crown vests immediately in the person who is entitled to succeed, it being a maxim of the common law that the king never dies.107 The new Sovereign is therefore entitled to exercise full prerogative rights without further ceremony.108
The fact of the new Sovereign's accession is published by a proclamation which is issued as soon as conveniently may be after the death of the former Sovereign. It is made in the name of the lords spiritual and temporal, members of the late Sovereign's Privy Council and the principal gentlemen of quality, with the Lord Mayor, aldermen and citizens of London.109
Any alteration in the succession laws has therefore to take place during the reign of a Sovereign whose own title will not be affected. It is clear that, since the advent of separate Crowns, the right to alter and amend the laws of succession of the New Zealand Crown belongs to the Parliament of New Zealand. But, it is also clear that any such alteration would have to take into account the trans-national nature of the Crown.
There are two possible scenarios for such a change. The first is changing attitudes to succession in general, the other is the position of the Prince of Wales. In respect of the first, primogeniture has been abolished with respect to private property.110 The presumption that a son should succeed in preference to daughter is at odds with modern attitudes, and in conflict with the Human Rights Act 1993.111 Were a succession law to be drawn up today, it is likely that it would provide for the succession of the eldest child of the Sovereign, irrespective of sex.112 Although some of the statutes of Henry VIII approached this, there has never been a statement of a generally applicable law of succession, expect in the limitations of the Revolutionary Settlement. Whether the time has come for such a restatement, perhaps accompanied by significant change, is by no means proven.
One possible ground for alteration in the law of succession relates to the Prince of Wales. The present position is that whoever he marries would become Queen when he succeeded to the throne. Were he to marry Camilla Parker-Bowles, there would doubtless be calls for him to renounce his right to succeed in favour of his eldest son. Such a renunciation would not, of course, be effective unless accompanied by legislation in each of the countries acknowledging the Queen as Sovereign.
Changing the succession law in such a way would be likely to follow the example of 1936, with Parliament(s) implementing a decision already taken by the royal family. This is in accordance with the tradition of Parliament reinforcing doubtful claims. Excepting 1688-89, Parliament itself has never taken the initiative. To do so now might be to raise questions about the proper balance of the constitution, questions which Parliament might prefer unasked.113
On 27 February 1998, in London, Lord Wilson of Mostyn, QC, Parliamentary Under Secretary of State for the Home Office, announced that the British Government supported changing the law of succession to the Crown, in favour of the succession of the eldest child irrespective of sex. This came in a debate on a private members' Bill sponsored by Jeffrey Lord Archer, intended to allow provide for the succession of the eldest child of the Sovereign regardless of sex.114
While he acknowledged that any change would have to receive the support of all countries of which The Queen is Sovereign, it is inappropriate that Lord Wilson, who had special responsibility for revision of the British Constitution, should propose such a fundamental change for purely party political reasons. While his colleagues in the Scottish and Welsh Offices were busy dismembering the United Kingdom, in the name of devolution, doubtless he felt that he had to make his own mark on the constitution.
The British Government should not let its own desire for change be the reason for such a fundamental move. The Crown has evolved gradually, and there has been quite enough disruption already in the last decade. Any proposal for change is risky, and there is no evidence of a need or desire for any change in the succession law.
The present rules are a compromise, the result of centuries of evolution. It is half-way between the extremes of the strict rule of primogeniture of the so-called Salic law, and the modernist eldest child rule, as adopted recently in Norway and the Netherlands.
Any move to change the law would be seen as defensive, an attempt to counter criticism. Yet criticism has never focused upon the fundamental nature of the Crown. Any change would be controversial. No good grounds for change have been advanced, aside from claims of sexual inequality.
Any change in the law of succession would have to be enacted in each of Her Majesty's realms, requiring detailed consultation to avoid the possibility of error. Such a proposal should be discussed in private first, not announced by the British Government almost as a fait accompli. The succession law in New Zealand is that of the United Kingdom prior to 1931, subject to potential statutory alteration by the New Zealand Parliament.
In the past Parliament has legislated for the succession for reasons of expediency. With the exception of the settlement and exclusion provisions of the Act of Settlement, the succession remains strictly hereditary. Although the continued exclusion of Catholics, as the basis of the three-hundred-year-old Revolutionary Settlement, may be unjustified in the New Zealand environment, any change in this country would be dependent upon events in the United Kingdom. So long as the king or Queen of the United Kingdom remains Head of the Established Church of England, no change is likely. Were New Zealand to unilaterally amend the Act of Settlement, it is unlikely that any division of the Crown would occur, but it would emphasise the separateness of the Crown.
The problem with altering the Act of Settlement is that the Act was a deliberate and conscious rebalancing of the constitution, one which also brought us the sovereignty of Parliament. Tampering with one aspect might encourage calls for the other to be reconsidered also. Indeed, in light of claims that the Treaty of Waitangi or the 1835 Declaration of Independence guaranteed Maori sovereignty, or rangatiratanga, such calls could not be ignored.