European Law In Relation To Succession to The Throne

In this case Princess Anne has a solid argument that is based around the idea that she is far more experienced than the younger male heir to the throne and is only deprived of this position because she is a woman. However this situation is decided via the Act of Settlement 1701, a historical document that has been used to decide the next monarch for several years. In this essay I will advise Princess Anne as to how recent EU Treaties and legislation could aid her in her battle to become the next Queen. 

The Act of Settlement 1701 

This act was passed at a time when there was much fear in politics and society and prevented groups such as Catholics from becoming monarch. However its relevance to Princess Anneís situation is that it specifies that the eldest son of the reigning monarch will be the next king. It also states that if the eldest son is no longer alive then his eldest son will become heir to the throne. In this case Prince William is heir to the throne, ahead of his older and quite possibly more experienced aunt.  

However many of the points incorporated within the Act of Settlement are no longer relevant to the 21^st Century as they were written at a time when the State was not as strong, and many have called for the statute to be modernised. As this is such an important cornerstone of the British constitution, it should comply with the common public feeling of modern times. As the feeling of the time is one of equal opportunities irrespective of sex or race, the decision as to who will be the next monarch should also comply, regardless of tradition. This would be a useful argument for Princess Anne in explaining her case. 

EU Law 

Treaty of Rome ñ Article 141 

The aims of article 141 are to ensure equal conditions for men and women in the workplace, in respect to treatment and pay. Article 141 has been used in cases as a source to aid those who have been discriminated against in the workplace. In Macarthys Ltd v Smith (1980), Wendy Smith was being paid less than her male predecessor for doing exactly the same job. As they were not working at the same time as each other there was no breach of UK law, but Miss Smith instead could rely on article 141 and stated that her employers were breaking EU law. Also, in Diocese of Hallam Trustee v Connaughton (1996) there were similar circumstances to the above case, but the employment tribunal instead of referring a question to the European Court of Justice relied on the Treaty of Rome to make a decision.  

As Article 141 is part of a treaty of the European Union, Princess Anne would be able to rely directly upon it in her case. The only problems that may arise are whether an employment tribunal would make such a groundbreaking ruling or if a court would consider the position of monarch as an occupation. 

EU Equal Treatment Directive 76/207 

The Equal Treatment Directive was brought into EU legislation to set down minimum standards in the workplace in regards to equal standards, regardless of sex or race. The aim of directives generally is to create harmony between EU and national law, giving a time limit for when certain standards must made. Directives in the UK are usually implemented by Statute. 

The Equal Treatment Directive has previously been used in a case ñ Marshall v Southampton and South West Hampshire Area Health Authority (1986). In this case Miss Marshall was working for the state but was made to retire 3 years earlier than her male co-workers. Under the Sex Discrimination Act 1975 this was not discriminatory, but she could use the Equal Treatment Directive to claim unfair dismissal. However Miss Marshall was only able to rely on the Directive because her employers were working for the State. If the Directive has not yet been implemented, it cannot be relied upon when claiming against the Private Sector. This was underlined in Duke v GEC Reliance (1998) where the Equal Treatment Directive had no horizontal effect against a private company.  

However national courts are obliged to interpret their countryís law in relation to directives even if they have not yet been implemented. This point was pointed out in Marleasing SA v LA Comercial Internacional de Alimentacion SA (1992). 

As Princess Anne is working for the State, she would be able to rely on the Equal Treatment Directive because of the concept of vertical direct effect. This enables anybody working for the State to rely on unimplemented EU directives. 

How Anne would go ahead with her case  

The first step for Anne should be to make a claim, backed up by Article 141 of the Treaty of Rome, to an employment tribunal. She should state that the Act of Settlement 1701 is no longer a relevant document because it does not comply with the common public feeling. It is however unlikely that the employment tribunal would make a firm decision on the basis of EU law because of the importance of the case matter. It is more likely that they would direct a question straight to the European Court of Justice, based on the differences between the Act of Settlement and EU Law. This usage of discretionary referrals was set out in the case of Bulmer v Bollinger (1974). Anne could also use the Equal Treatment Directive to back up her case. 

Public Opinion 

Due to the high profile nature of this case and the revolutionary effects it would have if it succeeded, there is bound to be a great public feeling towards it. However I doubt that there would be many who would disagree with the caseís nature and what it stands for. I also doubt that the people directly surrounding the monarchy would disapprove that much as it would be seen as a method of modernising the Royal family and possibly making them more popular with the general public.  

One possible for reason for discerning views towards Princess Anneís case is that it would be seen as letting a group outside our nation deciding who will become our next monarch. This is where the issue of national sovereignty is brought into question. 

Conflicts between EU and National Law 

The key factor in this case is how EU law takes precedence over national law. This was established first in Van Gend en Loos (1963), and then again in Costa v ENEL (1964). After this case it was established that even if there was a later national law it still does not take precedence over EU law. This was seen further in the case of Factortame (1990). It was decided by the European Court of Justice that the UK could not enforce the Merchant Shipping Act 1988 because it was of a contradictory nature to the Treaty of Rome.  

From this we can clearly see that the United Kingdom has given over some of its power and sovereignty to the European Union. It can also be seen from Princess Anneís case that the UK has given up a sufficient amount of power as to allow the EU a hand in deciding who will be our countryís monarch, although can be said that somebody like Princess Anne would have to set the wheels in motion.  

Conclusion 

Although it is unlikely that Princess Anne would want to act in such a revolutionary manner and go through with this case, it can be seen that there would be a chance of success. However as the job of monarch is thought of generally as a national trademark by those who appreciate it, if the EU were to have a say over national law as to who the monarch was going to be there would probably be widespread uproar. The position of national sovereignty would be undermined too fully for some, and the UKís position in the EU would have to be considered 

I therefore would advise Anne that if she did go through with and succeed in her case, she would in fact be undermining her own position of Head of State as she would be further relieving it of its power. Because of the nature of the extreme nature of this case, she should not go ahead with it.

March 2003