The Guardian is to back a legal challenge to the 300-year-old law banning Roman Catholics and other non-Protestants from succession to the British throne, on the grounds that it clashes with the Human Rights Act and should be reinterpreted or removed from the statute book.
Leading human rights lawyer Geoffrey Robertson QC believes the Act of Settlement 1701 may be affected by the European convention on human rights, which became part of UK law two months ago when the Human Rights Act came into force.
The challenge to the Act of Settlement coincides with an editorial in the paper which argues for a referendum on the future of the monarchy.
The act, passed at a time of widespread fear of Catholics, lays down that only Protestant heirs of Princess Sophia, granddaughter of James I, may take the British throne. Neither Catholics, nor those who marry a Catholic, nor those born out of wedlock, may remain in the line of succession.
The act remains the crucial cornerstone of the British constitution, exercising an extraordinary hold over the monarchy and imposing limitations designed to tackle the imperatives of a political crisis at the dawn of the 18th century. But it is scarcely relevant to the 21st.
Because of it, dozens of people have been barred from taking their place in the order of succession. Since many of them are German, the Guardian has placed an advertisement in the Süddeutsche Zeitung asking them to join the action to reclaim their birthright.
Sons also take precedence over daughters and the right of succession belongs to the eldest son. The act institutionalises religious discrimination and male primogeniture.
The Human Rights Act gives UK judges power for the first time to reinterpret statutes to make them compatible "so far as possible" with the European convention.
Mr Robertson considers it may be "possible" for the courts to read the Act of Settlement's language in a way which avoids discrimination against women and some religious faiths but the "express virulence" of the act's anti-Catholic language could only be removed by legislation. If judges find it impossible to re-word the statute, the Human Rights Act allows them to make a "declaration of incompatibility". This leaves the statute in force but puts pressure on the government to reform it, since the UK has signed up to the convention and pledged that it will comply with convention rights.
The Guardian argues in an editorial today that in the new millennium Britain should be given the choice whether to keep the royal family or to become a republic.
Today and over the next few days the paper is running a number of articles advocating republicanism, despite another outdated statute, the Treason Felony Act 1848, which threatens anyone doing so with deportation "for the term of his or her natural life".
The paper's editor, Alan Rusbridger wrote last week to the attorney general, Lord Williams of Mostyn, asking for an assurance that he will not be prosecuted, given that he has no intention of advocating overthrow of the monarchy by force. In his letter, he argued the Treason Felony Act breaches article 10 of the European convention, the right to freedom of expression.
He suggested the attorney general might ask the high court to reinterpret the Treason Felony Act so that only calls to overthrow the monarchy by violence would be an offence. He offered the paper's support in the application.
Lord Williams replied: "I hope you understand that Neither David Calvert-Smith [the director of public prosecutions] nor I can give you an assurance regarding whether or not a prosecution or other action will be taken. You are asking me to take action which sanctions in advance conduct which may be criminal. You should take your own legal advice then decide for yourself whether you will follow it."
Under the Human Rights Act, judges are expected to interpret an existing statute as far as possible so as to be compatible with the human rights convention. Mr Robertson believes the courts may use this power to limit the scope of the Treason Felony Act so it complies with the right to freedom of expression. Only if this is not possible should they make a declaration of incompatibility.
The Guardian believes the Act of Settlement violates article 9 of the convention, the right to freedom of thought, conscience and religion. In addition, it breaches article 1 of protocol 1, the right to peaceful enjoyment of possessions - in this case the banned descendants' place in the line of succession - and article 14, banning discrimination in relation to any convention right.
Not only are Catholics banned from succession, but the sovereign must be in communion with the Church of England, must swear to preserve the church, and to uphold the Protestant line of succession. This appears to discriminate against other faiths, including Jews, Muslims and Hindus.
At her coronation in 1953, the Queen pledged to maintain and preserve the church's doctrine, worship and discipline.
In December 1999 the Scottish parliament backed unanimously a motion, spearheaded by the Scottish National party, to abolish the Act of Settlement. The debate had been initiated by Lord Hamilton - Tory whip in the Scottish parliament - who wrote to the Tony Blair asking him to lift the "anachronistic" act.
Soon after the Scottish vote, the Archbishop of York, David Hope, called for the act to be amended to allow the heir to the throne to marry a Catholic.
Officials said amending the act of Settlement . But the Human Rights Act lays down a fast track method for amending statutes judged incompatible with the European convention. Failure to do so would leave the UK open to condemnation by the European court.
"No one can really defend this act," said Mr Rusbridger. "Since MPs are barred from openly debating the role of the monarch we thought a newspaper might set the ball rolling. We very much hope that the odd Hapsburg or Saxe-Coburg might join in."
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