Can a Prime Minister be a Catholic?--A Skeleton argument for Christmas.
Here's a legal issue, given the late Prime Minister's conversion to the Roman Catholic faith he and I now share. It was also an issue during the Blair years when the Leader of the Opposition, Ian Duncan Smith, was a Catholic, as was the Leader of the Liberal Democrats, Charles Kennedy.
The press and various constitutional boobies are suggesting that a PM just can't be a Catholic, and that that is one reason Mr Blair held off becoming one when PM. In the way of things in Britain, everyone is nodding sagely and saying this is correct.
Let's look at the law. Remember, Britain has no written constitution, like Israel, New Zealand and (as far as I know) Tonga and Papua, though I stand to be corrected on those two.
Observers point to the 1829 Catholic Emancipation Act, which declares, at section 12
12. Offices withheld from Roman Catholics.Provided also, that nothing herein contained shall extend, or be construed to extend to enable any person or persons professing the Roman Catholic religion to hold or exercise the office of guardians and justices of the United Kingdom, or of regent of the United Kingdom, under whatever name, style, or title such office may be constituted; nor to enable any person, otherwise than as he is now by law enabled, to hold or enjoy the office of lord high chancellor, lord keeper or lord commissioner of the great seal of Great Britain . . . F10 ; or his Majesty’s high commissioner to the general assembly of the Church of Scotland
Here are some initial thoughts.
1. The PM has no office at the minute. That is to say, there is no official office of the Prime Minister and the title is an honorary one recognised in peacetime statute only twice; once to say where the PM should stand at a state funeral, and once in legislation relating to government pensions from the 1920s. The ban cannot therefore be applied, since there is no recognised office.
2. The ban could apply to the PM as First Lord of the Treasury. The Treasury Lords were collective--there was no one person. They were commissioners of the Great Seal, when the Lord Chamberlain and the Lord Chancellor were not exercising it as it allowed them to wield the personal powers of the King.
3. These personal powers are known as the Royal Prerogative. They are currently valued by Prime Ministers. They involve the right to launch wars, appoint Ministers, sign treaties, and create new government responsibilities, as well as effectively giving a PM power to call a general election.
4. If a Parliament simply created an office of Prime Minister at the same time as replacing the prerogative powers a Prime Minister wields, no dilemma would arise. PM power would flow from a Statute based-office. The seal and the commissioners would become an historical curiosity. Britain would also effectively remove the monarch from politics and the constitution, but maintain the office as a cultural role. The process would be simple, and could be completed by a one-page bill in a day and justified in comparison with the Theatres Act 1968 that removed the Lord Chamberlain's powers. Parliament can amend in such a way easily--it already amended the 1829 act in 1950 and 1978, for instance. That's what the 'F10' above refers to.
5. If a Catholic was simply appointed PM, and such a bill was not passed, there would be a contradiction with the 1829 law. But again, it is possible for UK laws to become obsolete and unenforced. This is not the United States, and eighteenth century provisions need not be noodled over. Ironically, Parliament never repealed all the laws relating to the government of the American colonies, for instance. Nor did it formally recognise the end of the League of Nations. It just adopted new terms, like 'USA' and 'UN' and headed on. The United Kingdom of 1829 is not the UK of 2007. Ireland, for instance, is gone, and so are conceptions of citizenship as subjecthood to a Protestant monarch. Yet Ireland's departure did not result in any treatment of Irish Citizens as foreign, or their disfranchisement. An Irish citizen can still be a British voter and MP. All this shows is that a Parliament need not be bound by the will of the past. Who would enforce the law against a Parliament and monarch who simply appointed or recognised a catholic PM anyway?
6. Where there is ambiguity in the law, Judges must interpret according to the liberty of the individual and the Human Rights Act. It is inconceivable that either would be advanced by a religious ban. The link that I've put in is a very simple one to explain that fact.
7. Advisers to the monarch have been catholics. What was Jean Chretien when he was Prime Minister of Canada, having derived his power from UK acts recognising Canada but not explicitly mentioning the 1829 act, culminating in the repatriation of the Canadian Constitution of 1982? Are we going to say that the creation of the Dominions recognised in the Statute of Westminster contradict the 1829 act, but the only people who should get the religious benefit are now the citizens of other commonwealth states? Silly, silly, silly. There are in fact plenty of Privy Councillors, the most senior sort of advisor to the monarch, who are Catholics, including, for instance, Ian Duncan Smith, Clare Short and John Reid amongst dozens. Are we going to say they aren't really Privy Councillors? The pass on that one has fallen.
8. Hansard, the Parliamentary record, was not officially authorised or recognised until 1840, so the precedents relating to interpretation of Parliament by looking at what they said (Pepper v Hart) don't apply. Judges would have to look at what Parliament must have meant and since the facts don't fit it, would have to take an approach that integrated the Human Rights Act with the golden rule that the law must not be made absurd. This would also be carried out in the understanding since the Rees-Mogg case on the European Union that there are some constitutional things the courts should not seek to do anything to except read broadly.
It follows that there is very little prospect of any successful legal defence of the proposition that a Catholic could not be PM.
There is culturally. There are large numbers of anti catholic bullies in this country--more on the pseudo-left than the right--but they should not have a hold over the constitution, even if in their media outlets they do.
I'd love to argue this case!