The British are just beginning to wake up—after three centuries—to the difficulties in having a white, Anglo-German Protestant monarchy now perpetuated by William's romantic but undiplomatic marriage to an English commoner. Not only does the royal family's constitutional bedrock—the 1701 Act of Settlement—breach at least three provisions of the European Convention on Human Rights to which Britain is now subject, but the 53 other nations that make up the Commonwealth, headed by Elizabeth II, have privately signaled that they do not want her son (who will be Charles III) or her grandson (the future William V) to succeed her in that role. So what really lies ahead for the happy couple?
The U.K. government last week accepted that the Act of Settlement must be amended, before William and Kate's first child is born. This 1701 law is a blood-curdling anti-Catholic rant, which enshrines the genes and Protestant religious beliefs of Princess Sophia of Hanover in the succession to the throne. This means that any monarch who holds communion with the Church of Rome or who marries a papist—heaven forbid a Muslim or a Methodist or a Scientologist—is immediately dethroned. The act imposes anti-meritocratic race discrimination: No one unrelated to this German family (the Windsors changed their name from Saxe-Coburg-Gotha during the First World War to disguise their familial relationship with the kaiser) can aspire to the crown.
This primitive 1701 law adopts the feudal principle of primogeniture (inheritance down the male line), so that if the happy couple produced a daughter, she would be relegated to the bottom of the stately pile, below any subsequent male heirs. If Charles III were to convert to Catholicism (or have a sex-change operation), the crown would go first to his male children, then to his male brothers and their family, ahead of their older female sisters.
The refusal to invite the Obamas to the royal wedding may not have been either an oversight or an over-slight, but a deliberate decision by the royal family.
Tom Paine pointed out the absurdity of a hereditary poet or a hereditary mathematician, although he failed to take into account the entertainment value provided by a hereditary family of royals. Speaking of which, there is still the 1361 Treason Act, the legal chastity belt that did in Anne Boleyn and will constrain Kate by criminal law, after Charles becomes king: It punishes (until recently, with death) any party to adultery with (and including) the wife of the heir to the throne.
These constitutional laws are obsolete and obnoxious, and in some cases very silly—for example, ownership of every wild swan is vested in the monarch, and in the case of "the royal fish," the head of every whale, sturgeon, or grampus landed in the kingdom belongs to the king, and their tails belong to the queen. You may not find the monarch's immunity from legal action quite so amusing, however, if you are run over by a royal motorcade hastening to get to the church on time.
Why has reform not seriously been attempted? The Labour government claimed it would be too hard, because the Commonwealth would need to be consulted and countries like Jamaica and Australia were besotted by royal tradition. David Cameron has repeated this nonsense about the Commonwealth wishing to block change. In fact, Commonwealth countries do not need to be consulted at all: If they still wish to be reigned over by the British royal family, they must take it as they find it, after it has moved into the 21st century.
In any case, it is an open secret (and one recently revealed by WikiLeaks) at the Commonwealth Secretariat that many countries do not want Charles to be the next head of the Commonwealth when the queen retires—they are looking for someone more inspiring. Nelson Mandela, once the favorite candidate, is now too old, so the crown may be offered to his wife, Graca Machel, or, more inspiringly, to Aung San Suu Kyi. (Burma was once part of the empire.) But there is a better candidate that the palace fears will unseat its favorite son and heir: In a few years' time, the role of head of the Commonwealth could well be offered to ex-president Barack Obama, with his Kenyan ancestry. The refusal to invite the Obamas to the royal wedding may not have been either an oversight or an over-slight, but a deliberate decision taken by the royal family concerned that Barack and Michelle would appear to the "black commonwealth" (the majority of its members) as providing much more satisfactory leadership than Charles and Camilla.
In the meantime, where stands republicanism in Britain? There has been little intellectual advance since Oliver Cromwell's Puritan republic back in the 1650s. Some years ago The Guardian began a legal campaign to challenge the monarchy—it had initial success when the House of Lords judges said the unrepealed sedition laws that sent Irish republicans to Botany Bay in 1848 could never again be enforced, thanks to the Human Rights Act. But it could not find a Catholic in line to the throne prepared to challenge the discrimination in the Act of Settlement. Although there are many (mainly German) among the first 1,000 in line to the throne, all those contacted declined the opportunity to bring a test case, because they feared they would no longer be invited to take tea at Buckingham Palace.
That campaign foundered when its opponents pointed to the lackluster political hacks who might be elected president under a democratic system for choosing a head of state: Ex-prime ministers like Tony Blair and Margaret Thatcher are cordially loathed (John Major is uncordially ignored) and bear no comparison with the love and respect accorded to Elizabeth II. But when she goes (as, at 85, she must—though her mother lived to 101), a new Act of Settlement could establish an elected presidency and exclude from candidature anyone who has held government office. That would of course permit Prince Charles to stand—he would probably win the first presidential election unless a royal vote was split by his son William (or his sister Princess Anne) standing against him. That might let in Richard Branson or Helen Mirren, or lead to victory for the inevitable "Stephen Fry for Queen" campaign—but why not?
In the Westminster system, the role of head of state, with the duty "to advise and to warn," is an important part of the constitutional mechanism. But at age 85, Elizabeth II merely follows the directions of the government of the day. However astute she may remain in her old age on picking Derby winners. Britain lacks an elected and respected figurehead, above party politics, who could provide wise counsel to the government. One result of choosing a head of state by inheritance rather than election is that in a crisis the person may lack the confidence, popularity and independence to make a worthwhile contribution to governance. Good luck apart, the Act of Settlement (1701) and the genes of Princess Sophia will not provide—by sexist, racist or religiously discriminating descent—the caliber of leadership that could be provided by elections every five or seven years for a head of state.
Geoffrey Robertson is a Queen's Counsel, and author of The Tyrannicide Brief (Pantheon)