Written by Lisa Incledon (AS Law Student)
The Act of Settlement 1701 provides for a male heir to the throne before a female, and as a result if Prince Charles died before the Queen; his children, and his brothers and their children would all be heirs to the throne before Princess Anne, despite being the eldest and arguably the more experienced for the position and thus this could be considered sex discrimination. Article 141 of the Treaty of Rome and EU Equal Treatment Directive 76/207 both deal with equal treatment of men and women, and I will consider their relevance to this issue.
The first point to consider is whether the position of monarch could be considered employment, and as such be affected by European Directives and treaty provisions on employment. On one hand, it is possible to argue that the role is hereditary and therefore not an employment issue, as it is not a position open for application or one that it is possible to be fired from. However, the Queen does receive a salary and is expected to perform certain duties, and as such I consider that the position of monarch could be an employment issue and thus Princess Anne would be able to pursue her case through an employment tribunal.
European treaties, regulations and some decisions are directly applicable, and immediately become a part of the law of member states. The European Communities Act (1972) section 2(1) states ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law and be enforced, allowed and followed accordingly.’ Thus, all provisions of European Union treaties are immediately incorporated into UK law, and individuals are able to rely upon them, as demonstrated by the case of Van Duyn v Home Office (1974), in which the European Court of Justice decided that Van Duyn could rely on Article 39 of the Treaty of Rome, which gives individuals the right to freedom of movement.
Article 141 of the Treaty of Rome refers to ‘equal treatment of men and women in matters of employment and occupation’ and it is this provision that Princess Anne would rely on in her case. In the case of Macarthys Ltd. V Smith (1980) Wendy Smith was paid less than her male predecessor for the same job, and although there was no domestic legislation against this, she was able to rely upon article 141 of the Treaty of Rome. Also in the case of Pickstone v Freeman plc (1988) the Court of Appeal held that Article 141 of the Treaty of Rome was clear and could be applied directly in domestic courts, similarly in the case of Diocese of Hallam Trustee v Connaughton (1996) the Employment Appeal Tribunal decided that Miss Connaughton could rely on Article 141 of the Treaty of Rome, in her claim against her former employers who were paying her male successor considerably more than she had been paid, as the tribunal felt the provisions of the Treaty were wide enough to allow the claim and there was no need to refer to the European Court of Justice for a preliminary ruling.
Thus, the provisions of Article 141 of the Treaty of Rome are directly applicable and Princess Anne would be able to rely upon them in her case.
Although in the case of Diocese of Hallam Trustee v Connaughton (1996) the Employment Appeal Tribunal felt that it was able to make a decision based upon the provisions of the Treaty of Rome, without referring to the European Court of Justice for a preliminary ruling; it is unlikely that the Employment Tribunal in this case would consider itself able to make such a complex and important decision without making a discretionary referral on the point to the European Court of Justice. Any court or tribunal in the UK can make discretionary referrals if they consider it necessary in order to clarify a point of European law that is important to the case; apart from the House of Lords from which a mandatory referral must be made as it is the highest appeal court in the country. Following a referral, the European Court of Justice will give a preliminary ruling on the point of law, and then the case will continue in the original domestic court, with the ruling applied. The Court of Appeal set out the circumstances for making discretionary referrals to the European Court of Justice in the case of Bulmer v Bollinger (1974): referrals should only be made if a ruling by the European Court of Justice is needed to decide the case, if the point is unclear and has not already been decided in a previous case. Also the court should consider the delay to the case, the difficulty and importance of the case, the cost involved, and whether the parties themselves wish the point to be referred to the European Court of Justice. In this case since the issue has not previously been decided on, and the case is difficult and of considerable national importance, therefore the Employment Tribunal certainly has reason to refer it to the European Court of Justice for a preliminary ruling.
Princess Anne could rely upon the Equal Treatment Directive 76/207 due to vertical direct effect. Vertical direct effect was used in the case of Marshall v Southampton and South West Hampshire Area Health Authority (1986), in which Miss Marshall was able to bring action for unfair dismissal against her employers, relying on the Equal Treatment Directive 76/207, even though it had not been fully implemented, because her employers were ‘an arm of the state’. Also the case of Foster v British Gas plc (1990), defined the concept of the state as ‘a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals’. Thus the position of monarch could be considered an arm of the state, as it provides a public service, promotes the state and is paid to do so by the state; as a result, Princess Anne could rely on the Equal Treatment Directive due to vertical direct effect.
However, if the courts decided that the role of Monarch could not be considered ‘an arm of the state’ then Princess Anne would not be able to rely on vertical direct effect and thus become heir to the throne, but she may be able to claim compensation from the state for failing to implement the directive, as in the case of Francovich v Italian Republic (1991), in which Francovich sued the state for his financial loss due to their failure to implement the directive. The European Court of Justice confirmed this right to compensation from the state and set out requirements for it in the case of Paola Faccini Dori v Recreb Srl (1995), the requirements are that the purpose of the directive had to be to grant rights to individuals, that the rights must be discernable from the provisions of the directive and that there had to be a link between the damage suffered by the individual and the state’s breach of its obligations. I would consider all of these conditions to apply to Princess Anne’s case and thus, if the position of monarch is excluded from being an arm of the state she should still be entitled to compensation.
Also, in the case of Marleasing SA v LA Commercial Internacional de Alimentacion SA (1992), the European Court of Justice stated that even if a directive is not fully implemented, courts should still interpret national law with regards to any relevant directives.
It is also important to note that the wording of the Equal Treatment Directive; ‘there shall be no discrimination whatsoever on the grounds of sex in the conditions, including selection criteria for access to all jobs, whatever the sector or branch of activity and to all levels of the occupational hierarchy’ is very broad and therefore could be interpreted quite widely. However, this being a serious issue to the country, the courts are less likely to use a wide interpretation of the directive and could be more conservative in their judgement due to the importance of the case.
If it is concluded, as is likely, that under European law excluding Princess Anne from becoming monarch in favour of a male is sex discrimination, then this will directly conflict with the Act of Settlement 1701, and thus domestic law.
In these situations European law takes precedence, as in the case of Van Gend en Loos (1963) in which Dutch law conflicted with European law over customs duty and it was decided that the European Court of Justice has the right to decide whether national or European law prevails. This was also the conclusion in the case of Costa v ENEL (1964) where it was decided European law takes precedence over national law, even if the national laws were made after the European, and the European Court of Justice stated that ‘the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.’ This explains that EU law binds all member states of the European Union, and that it will always take precedence over national law.
A case that clearly demonstrates the supremacy of EU law over UK domestic legislation is the Factortame case (1990), when the European Court of Justice decided the Merchant Shipping Act 1988, passed to protect British fishermen by only allowing vessels to register if at least 75% of directors were British nationals, contravened the Treaty of Rome and as such could not be enforced; this case clearly demonstrates the supremacy of EU law.
Overall I would advise Princess Anne that she has a reasonably good chance of succeeding in her claim that excluding her in favour of a male heir is sex discrimination, based on Article 141 of the Treaty of Rome and the Equal Treatment Directive 76/207. However, I would also advise her to consider the possibility that the courts may be more conservative in their decision and unwilling to make such a major constitutional change.
Written by Lisa Incledon - May 2004.
Martin J. ‘The English Legal System’ – Hodder & Stoughton (2002)
Elliott C. & Quinn F. ‘AS Law’ – Longman (2002)
Van Duyn v Home Office (1974)
Macarthys Ltd v Smith (1980)
Pickstone v Freeman plc (1988)
Diocese of Hallam Trustee v Connaughton (1996)
Bulmer v Bollinger (1974)
Marshall v Southampton and South West Hampshire Area Health Authority (1986)
Foster v British Gas plc (1990)
Francovich v Italian Republic (1991)
Paola Faccini Dori v Recreb Srl (1995)
Marleasing SA v LA Commercial Internacional de Alimentacion SA (1992)
Van Gend en Loos (1963)
Costa v ENEL (1964)
Factortame case (1990)