European Law In Relation To Succession to The Throne

Written by Paul Powlesland

 Problem Question ...

When the Queen dies it is expected that her eldest child Prince Charles will take the throne. However, before he takes the throne Prince Charles dies and it is reported that his eldest son ñ Prince William ñ is next in line for the throne. 

Princess Anne - who is the sister of Charles - has other ideas and she challenges the assumption that a male must be next in line to do the job of Monarch. She argues that EU Law must take priority over the Act of Settlement of 1701 (which provides for a male heir to the throne). She further argues that she is far more experienced than William and to exclude her amounts to sex discrimination. The relevant EU Treaty and Directive provisions are Ö 

(1)   Article 141 of the Treaty of Rome (as amended) refers to: ëequal treatment of men and women in matters of employment and occupationí. 

(2)   The EU Equal Treatment Directive 76/207 ñ determines: ëthere 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 hierarchyí.   

In light of these EU Treaty and Directive provisions, advise Princess Anne.  

Introduction 

The problem highlighted in the question has many different facets to it, but before I discuss the law in this problem, it is best to first establish other things in relation to the problem.

          The first of these is, is the position of monarch a job? Many would argue that the monarchy is a ceremonial role that stretches back into history, that the monarch cannot be ësackedí from their role and as such the role of monarch cannot be given the ordinary title of a job. However, despite the many differences between the monarchy and ordinary jobs, the queen receives a form of salary from the government (last year she receive £7,900,000 in Civil List payments) and she has specific duties to perform. In addition, the Queen herself has described the Royal Family as ìThe Firmî. Due to the fact that the role of monarch can be classified as a job, any case relating to it, such as the action that Princess Anne might bring, will be heard initially in an Employment Tribunal.

          The second point to be clarified is the current position in relation to succession to the throne. The Act of Settlement (1701) combines the practice of primogeniture with gender based selection, which is to say that succession is given in order of age of the children, but with a male child always coming first. Based on our current system of selection, the line of succession would be:

1)     Prince Charles

2)     Prince William

3)     Prince Henry

4)     Prince Andrew (followed by his children)

5)     Prince Edward

6)     Princess Anne.

Using only the process of primogeniture (with the potentially sexist gender selection removed), then (as Prince Charles is the eldest child) the line would be the same as it currently is, up until Prince Henry. However, after him, princess Anne would be next in line to throne if it were not for the practice of the male children being first in line for the throne. This then is the premise for Anne bringing her action based on European Law. 

Relying On The Treaty Of Rome. 

One way in which Anne could bring her action, is by relying on the Treaty of Rome (created in 1957 and signed by Britain in 1972). Article 141 refers to ìequal treatment of men and women in matters of employment and education.î This would seemingly give good grounds to Princess Anneís case, as allowing gender to be a major condition on gaining a ìjobî (such as the position of monarch) would go against the Treaty of Romeís demand of ìequal treatment for men and women in matters of employment.î

Although this would seemingly give Princess Anne quite strong grounds for a case, but there is still a problem. This is because the Act of Settlement 1701 provides for a male heir to the throne (as detailed in the introduction). Thus if Anne were able to rely on Article 141 and win her case, European Law would be in direct conflict with English law, but which one would take precedence? According to the Dutch case of Van Gend En Loos (1963), the European Court of Justice (ECJ) has the right to decide whether EU law, or national law prevails and thus European law takes precedent over national law. This prevalence was further reinforced by the case of Costa v ENEL (1964), where it was held that even if there was a later national law, it did not take precedence over European law. This has particular pertinence in the Princess Anneís case, because if she won her case, the British government could not pass a new law reaffirming the procedures set out in the Act of Settlement (1701), as the new law would still be overruled by EU law. An example of a British law being overruled by EU law (as could happen if Princess Anne brought her case), is the Factortame Case (1990), in which the ECJ ruled that Britain could not enforce the Merchant Shipping Act (1988), because it was contravened the Treaty of Rome. 

          So, it has been established that Princess Anne may be able to bring her case under Article 141 of the Treaty of Rome and that this right would overrule the current rules for succession to the throne set out in the Act of Settlement (1701). However would Princess Anne be able to rely on Article 141 in an English court? The answer is yes. The case of Van Duyn v Home Office (1974) establishes the fact that articles in the treaties have direct effect, as long as they confer rights on individuals. This means that an individual is able to rely on the rights provided in the Treaty of Rome in an English Court.

There are also many cases, relating to EU law having direct effect in English courts that are more specific to Princess Anneís case. The most importantly of these cases is Pickstone v Freemans PLC (1988), in which the Court of Appeal decided (without referral to the ECJ) that Article 141 was ìclear and could be applied directlyî. Thus Princess Anne would probably be able to rely on Article 141 in an English court. Another important case that relates to Princess Anneís is Diocese of Hallam Trustees v Connaughton (1996) in which Josephine Connaughton could not rely on English law to support her claim of sex discrimination with regards to pay. However, the Employment Appeals Tribunal felt that Article 141 of the Treaty of Rome was sufficiently clear enough to allow Connaughton to make a claim, saying ìWe are sufficiently satisfied as to the scope of Article 141 so as to decide this appeal without further reference to the European Court of Justice.î[1] In a similar case (R v Secretary of State ex parte EOC (1994)), the House of Lords decided, without referring the case to the European Court of Justice that ìthe longer period of qualification for redundancy for those working less than 16 hours a week discriminated against women and was contrary to Article 141 of the Treaty of Rome.î[2] These cases are two examples of an English court making a judgement directly based on Article 141 of the Treaty of Rome. However, in both of the cases, the issues at stake had nothing to do with conditions for applying for a job, which is the central issue concerning Princess Anneís case and as such no definite precedence has been set in regard to this area. As a result of this, an English court may not feel that Article 141 is sufficiently clear to make a decision in Princess Anneís case and they may have to send the case to the ECJ, depending on the criteria set in Bulmer v Bollinger (1974) (see further down). Indeed, even the ECJ may not feel that Article 141 is sufficiently clear with regards to Anneís claim (after all, it does not specify job selection criteria) and as such she could not rely on it. If this situation were to occur, then Anne may be able to rely on a directive instead.  

Relying on A Directive 

The main directive that relates to Princess Anneís case is the Equal Treatment Directive (76/207). This directive states that ìthere 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.î This directive is obviously a lot more explicit than Article 141 of the Treaty of Rome, as it specifically states that there is to be no discrimination whatsoever in the ìselection criteria for access to all jobs.î This means that based on the directive Anne will have a very good case, as the selection criteria for the ëjobí of monarch do include gender and the directive specifically states there is to be ìno discrimination whatsoever on the grounds of sex.î However, despite this likelihood of success, there is a problem, due to the differing status of directives compared to treaties. As already mentioned, treaties automatically become part of our law and can be relied upon (if the rights are sufficiently clear) in the English courts. Directives however ìbind any member state to which they are addressed as to the result to be achieved, while leaving to domestic agencies a competence as to form and means.î[3] This basically means that it is left up to Member States to pass their own laws to bring directives into effect, within a time limit set by the Commission. The problem with the EU Equal Treatment Directive (76/207), is that it has not been fully implemented in the UK and as such Princess Anne would have to rely on the principal of direct effect. Unlike treaties however, which have both horizontal and vertical direct effect, directives only have vertical direct effect. This means that if the claim is against an ëarm of the stateí, then the directive has direct effect and the claimant can rely on any rights it gives. If however the claim is not against an ëarm of the stateí (for instance a private company or individual) then the claimant only has the right of horizontal direct effect, which does not apply with regards to directives and thus they cannot rely on any rights granted by the directive. This is quite sensible, because as the ECJ said in Publico Ministerio v Ratti (1980) ìmember states must not be allowed to benefit from their failure to implement a directiveî. In addition the fact that there is no horizontal direct effect ensures that private entities are not punished, when they are simply complying with the law of their Member State.

The concept of direct effect poses particular problems with regards to Princess Anneís case, because it calls into question whether the monarchy is an arm of the state. In order to properly judge if the monarchy is or is not an arm of the state, it is necessary to have a definition of what an arm of the state is. The definition was given by the ECJ in Foster v British Gas PLC (1990), where it was ruled that an ëarm of the stateí was ìa 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.î[4] As can be seen by this quote, for the purposes of EU law the definition of an arm of the state is quite wide. Due to this definition, I believe that the monarchy is an arm of the state, as it receives public money, has many ceremonial duties and because the monarch is our ëHead of Stateí. As a result of this, Princess Anne can use vertical direct effect in order to rely on the Equal Treatment Directive (76/207). The precedent of the use of vertical direct effect was set in Marshall v Southampton and South West Hampshire Area Health Authority (1986), in which Miss Marshall succeeded in an action for unfair dismissal by relying on the Equal Treatment Directive (76/207). The ECJ held that as her employers were an ëarm of the stateí she could rely on the directive. Another case that supports the use of direct vertical effect against an ëarm of the stateí was Gibson v East Riding of Yorkshire Council (1999). A case that gives precedent to sex not being allowed as a selection criterion for jobs is that of Dekker v Stichtung Vormingscentrum Voor Jonge Volwassen Plus (1990). This concerned Ms Dekker applying for a job at a youth training centre (an ëarm of the state) in the Netherlands. Although the selection committee considered her to be the best applicant, she was not offered the post because she was pregnant. The ECJ held that Ms Dekker had been discriminated against and reiterated again that ìthere shall be no discrimination on grounds of sex in the selection criteria for a job.î Thus this would be useful precedent for Princess Anne relying on the Equal Treatment Directive (76/207).

However, some might argue that the monarchy is not an ëarm of the stateí, but is instead a separate entity that is separate from the government and the rest of the state. Through this argument, people might argue that the monarchy is a set of private individuals, with their on wealth and that derived from various estates and Duchies, who choose to serve the nation. If this were the case and the monarchy is not considered an ëarm of the stateí, Anneís case becomes considerably more complex. This is because vertical direct effect would no longer apply, as private individuals are dealt with by horizontal direct effect. However, the case of Duke v GEC Reliance Ltd (1988) (in which Mrs Duke brought an action against a private company on the basis of the Equal Treatment Directive (76/207) decided that directives do not have horizontal direct effect. This means that, in actions against private companies or individuals, directives cannot be relied upon. This decision was further reinforced by the Italian case of Paola Faccini Dori v Recreb Srl (1994), in which it was decided that Dori could not rely on the rights given in Directive (85/447), in relation to consumer rights to cancel contracts, because Recreb Srl was a private company. Thus, these cases show that if the monarchy was ruled not to be an ëarm of the stateí, Princess Anne could not rely on the rights given in the Equal Treatment Directive (76/207) and thus would probably not succeed in her claim of sex discrimination.

Many would find it unfair that public sector workers could rely on unimplemented directives, while those in the private sector could not, so due to this fact there is one option open still open to Princess Anne. This would be to sue the government for any financial loss incurred as a result of their failure to implement the Equal Treatment Directive (76/207) in the time specified by the EU Commission. This principle was established in Francovich v Italian Republic (1991), in which the Italian government ìÖfailed to implement a directive aimed at protecting the wages of employees whose employer became insolvent.î[5] When the firm for which Francovich work went into liquidation owing him wages, he sued the Italian government for his financial loss and the ECJ upheld his complaint, saying he was entitled to compensation. The exact circumstances in which a person would be entitled to financial compensation from their government were set down in a later case, Paola Faccini Dori v Recreb Srl (1994). The main part of the statement says, ìCommunity law requires the member state to make good damage caused by a failure to transpose a directive,  provided three condition were fulfilled.î[6] I believe that Princess Anneís claim would fulfil these conditions and, as such, she would be entitled to financial compensation from the government, which could be quite considerable considering the benefits and civil list payments the monarch receives. However, despite this compensation, if the monarchy were not considered an ëarm of the stateí, then Princess Anne would not gain the position of monarch, only financial restitution from the government.

Although I have considered all the ways in which Princess Anne could rely on EU law (both treaties and directives) in bringing a case of sexual discrimination with regards to the selection procedure for the ìjobî of monarch, there is one last area to consider, which is the legal process by which she would fight her case. With regards to her fighting her case on the basis of rights provided by EU law, there are two possible options. Firstly, the Tribunal could decide that the rights provided by EU law relating to her case are clear and that she could rely on them in an English court. In this case the Employment Tribunal could give a judgement based directly on the EU law. However, if it were decided that the rights provided by EU law with regards to Anneís case are not clear enough, then a referral would have to be made to the ECJ for a preliminary ruling that would then enable a judgement to be given in an English court. There are two ways in which this referral could be done, through a discretionary referral, or a mandatory referral. A mandatory referral is where a referral to the ECJ has to be made, as there would be no further appeal possible in the Member Stateís judicial system. In this country mandatory referrals are made from the House of Lords (the highest appeal court in the UK), if the referral is necessary for the House of Lords to make a judgement. However, in order to reach the stage of a mandatory referral, it would be necessary to go through all the other courts first. So in Princess Anneís case it would involve her beginning her case in the Employment Tribunal, appealing to the Employment Appeal Tribunal, then to the Court of Appeal and then finally to the House of Lords who would have to make a mandatory referral. This way of fighting a case has been seen in many cases, such as Webb v EMO Air Cargo, in which Miss Webb was forced to appeal to each court along the judicial hierarchy, before her case reached the House of Lords and a mandatory referral had to be made to the ECJ which enabled the House of Lords to eventually rule in her favour. However, this process obviously wastes time and money (of both the courts and the claimant) and causes extra stress for the parties concerned. This is why a discretionary referral exists. A discretionary referral is where any court may refer a question to the ECJ, so in Princess Anneís case this would mean the Employment Tribunal referring the points of EU law in her case to the ECJ. One of the best examples of a court lower in the hierarchy (which Employment Tribunals are) making a mandatory referral to the ECJ, was in Torfaen Borough Council v B&Q (1990), where Cwmbran Magistrateís Court made a reference on whether Sunday trading restrictions were in breach of the Treaty of Rome. However, before they could refer a question to the ECJ the Employment Tribunal would have to first consider the guidelines laid down by the Court of Appeal for discretionary referral in the case of Bulmer v Bollinger (1974). These guidelines state that a discretionary referral should only be made if ìa ruling by the ECJ is necessary to enable the English court to give judgement in a case.î They add that ìThere is no need to refer a question that has already been decided by the European Court of Justice in a previous case. There is [also] no need to refer a point which is reasonably clear and free from doubt (the ëacte clairí doctrine).î The guidelines add finally, ìThe court must consider all the circumstances of the case.î[7] These circumstances could include the length of time it will take for a ruling (usually 18 months), the expense involved and the wishes of the parties involved. According to these guidelines, the court may not even have to make a referral in Princess Anneís case, as the directive especially is reasonably free from doubt. However, if the court felt that either Article 141 of the Treaty of Rome, or the Equal Treatment Directive (76/207) was not sufficiently clear in relation to Princess Anneís case, then the case would be a probable candidate for reference to the ECJ.

In Conclusion, if Princess Anne wished to pursue her claim of sex discrimination in relation to succession to the throne, there are many different ways in which she could use EU law to fight her case. One of these is Article 141 of the Treaty of Rome, which would perhaps be the most convenient to use because she could rely on it in English court whether or not it was decided if the monarchy was an ëarm of the stateí. However, the problem with relying on Article 141 is that it may not be clear enough given the complexities of the case. The other part of EU law that she might be able to rely on is the Equal Treatment Directive (76/207), which is much clearer and more specific to Princess Anneís case. However, as the directive is as yet unimplemented, Princess Anne would have to rely on direct effect. This would then bring into question whether the monarchy is an ëarm of the stateí. If it were considered as such then Princess Anne could rely on the directive (and stand a good chance of winning her case). If not, then she would not be able to rely on the directive, although she might be able to sue the state for financial restitution.

However, overall I believe that given the amount of EU law surrounding Princess Anneís case, she has a very good chance of winning her case by relying on at least one part of EU law that is relevant to her case.