The House Of Lords Is Finally Shrinking…Hooray!

Theresa May’s decision to create thirteen new peers has provoked some caustic commentary in the British press. Even the conservative Daily Telegraph couldn’t resist running a snarky piece predicting that the House could grow to 1,000 members by 2031.

There’s just one problem: at the moment, the upper house is actually shrinking. As the Lord Speaker, Lord Fowler, has observed, thirty-five peers have left the House since the beginning of the present Parliament. Even with these latest appointments, the House is still getting smaller.

The Lord Speaker says that the Prime Minister has “committed herself to restraint when making new appointments to the House of Lords,” and last week’s announcement suggests that she intends to keep her promise. Hopefully, this is a portent of things to come–if the House of Lords is going to survive, prime ministers must resist the temptation to hand out peerages like Halloween candy.

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Brexit, The House of Lords, And The Salisbury-Addison Convention

After a tumultuous twenty days of scrutiny, the House of Lords finally passed the European Union (Withdrawal) Bill last week. It now returns to the House of Commons, where MPs will have to decide whether to accept or reject the peers’ amendments. The upper house’s handling of the bill has generated considerable controversy among Brexiteers, and like the High Court judges who ruled against the Government on the Article 50 case, the Lords have been branded ‘enemies of the people.’ But these attacks are motivated by political animus rather than sound constitutional objections.

Peers made a number of significant changes to the EU (Withdrawal) Bill as it went through its parliamentary stages, including measures to:

  • give Parliament a ‘meaningful’ vote on the outcome of Brexit negotiations;
  • rein-in ministers’ use of ‘Henry VIII’ clauses;
  • preserve the EU Charter of Fundamental Rights in retained EU law; and
  • keep the United Kingdom in the EU customs union.

There is nothing inherently wrong with peers amending legislation. They are, after all, a revising chamber, and they are there to improve the quality of legislation. But many Brexiteers argue that the House went too far with its amendments and ended up violating the Salisbury-Addison Convention.

This Salisbury-Addison Convention (also known as the Salisbury Doctrine) was a gentlemen’s agreement struck in 1945 between the Labour Leader of the House of Lords, Viscount Addison, and the Conservative Leader of the Opposition, Viscount Cranborne (later the Marquess of Salisbury). At the time, the Tories had an enormous majority in the Lords, and they could easily obstruct Labour’s legislative program.[1] Although the Labour Government would ultimately prevail thanks to the Parliament Act 1911, peers could still delay non-financial bills for up to two years (this period was later reduced to one year by the Parliament Act 1949). Naturally, Labour was keen to avoid these scorched-earth tactics, so Lord Addison and Lord Cranborne struck a deal whereby the Tories agreed that they wouldn’t obstruct the Government’s legislative program.

As Viscount Cranborne noted during the debate on the King’s Speech:

Whatever our personal views, we should frankly recognize that these proposals were put before the country at the recent General Election and that the people of this country, with full knowledge of these proposals, returned the Labour Party to power. The Government may, therefore, I think, fairly claim that they have a mandate to introduce these proposals. I believe that it would be constitutionally wrong, when the country has so recently expressed its view, for this House to oppose proposals which have been definitely put before the electorate.[2]

But the Convention also prohibited wrecking amendments, as well. As Tory peer Lord Carrington noted in his memoirs:

The Lords should, if they saw fit, amend, but should not destroy or alter beyond recognition, any Bill on which the country had, by implication, given its verdict. The Lords, in other words, should not frustrate the will of the people.[3]

What began as a gentlemen’s agreement between the Tory and Labour leaders in 1945 is now arguably a constitutional convention (however, the Liberal Democrats deny that it applies to them since they were not a party to the original agreement). But while the Convention seems clear-cut at first, the devil is in the details. What constitutes a manifesto bill? Which amendments would destroy a bill or alter it beyond recognition? The answers to these questions will always be highly subjective.

The debate over the Iron and Steel Bill of 1948-49 illustrates the difficulties that arise when one tries to translate the Salisbury-Addison Convention from theory into practice. Labour’s 1945 manifesto promised to nationalize the iron and steel industries, but Tory peers argued that the Iron and Steel Bill went beyond the Government’s manifesto commitment since it would nationalize companies that had nothing to do with the manufacture of steel.[4] Furthermore, the Marquess of Salisbury noted that, while Labour won the largest number of votes in 1945, their manifesto was not backed by an overall majority of voters.[5] Despite Tory concerns over the bill, they did not attempt to block it outright. Instead, they passed amendments that sought to delay nationalization from taking effect until after the next General Election, which would give the British people a chance to weigh-in on the Government’s proposals. In the end, ministers accepted the principle behind the peers’ amendments, and the bill became law.

Brexiteers may not like what the Lords have done to the EU (Withdrawal) Bill, but it’s a stretch to accuse peers of constitutional malfeasance. They didn’t reject the bill outright, and their amendments did not destroy the bill or alter it beyond all recognition. Britain can still leave the EU, even with peers’ amendments. It may not be the type of Brexit that Jacob Rees-Mogg and company would like to see, but they are not the sole arbiters of what Brexit should be. That is a question for Parliament, not a cabal of MPs.

If peers insist on their amendments after MPs have rejected them, then it would be fair to speak of a breach of the Salisbury-Addison Convention. But at this point, all the Lords have done is ask MPs to think again, and there is nothing unconstitutional about that.

NOTES

[1] The House of Lords at this time was dominated by hereditary peers.

[2] HL Debates, 16 August 1945, col. 47.

[3] Lord Carrington, Reflections on Things Past: The Memoirs of Lord Carrington (London: Collins, 1988), 78.

[4] See the remarks of Viscount Swinton, HL Debates, 24 May 1949, col. 994.

[5] HL Debates, 29 June 1949, cols. 551-552.

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A Quick Guide To The British Peerage

The news that the Queen has made Prince Harry Duke of Sussex has led numerous American media outlets to try to explain the peerage to their audiences. Alas, their reporters often seem to struggle with the subject, so I thought I’d step up to the plate and provide a quick guide for anyone perplexed by what is admittedly a rather byzantine system. This post will focus on the British peerage–while Scotland, England, and Ireland each had their own separate peerages, they are now defunct.

There are five ranks within the peerage. From highest to lowest, they are: duke, marquess, earl, viscount, and baron. Despite these gradations, all peers are considered equal to one another, from the highest duke to the lowliest baron. However, baronets, knights/dames, and Lords of the Manor are not considered peers at all.

Historically, the right to attend Parliament has been the defining privilege of the British peerage. Initially, this was restricted to feudal barons,[1] but by the thirteenth century, kings had begun summoning men to Parliament regardless of their landholdings. This eventually led to the development of purely titular dignities divorced from land tenure.[2]

By the fifteenth century, the peerage had assumed its familiar five-rank structure. It had also become a hereditary institution, which meant monarchs had less control over the composition of the House of Lords. Most peerages went to the peer’s eldest son since primogeniture was the norm,[3] but unlike Continental systems of nobility, the children of British hereditary peers are not peers themselves. This can get very confusing since many of these children bear courtesy titles. For example, the Duke of Norfolk’s eldest son is customarily styled ‘Earl of Arundel,’ but he’s still not a peer.

Once a peerage was created, its holders would enjoy a perpetual seat in Parliament, no matter how much they annoyed the king. Peerages could only be revoked by an Act of Parliament, and that rarely occurred. The fact that the each peerage created a perpetual seat in the legislature initially encouraged monarchs to be sparing with their ennoblements, but this changed under the Stuarts.

Faced with perpetual money problems, James I openly sold titles, including peerages. He ultimately created 62 peers (there were only 59 when he took the throne!). His successors were just as profligate: when the last Stuart monarch, Anne, died in 1714, there were 168 peers in the House of Lords (at one point, Anne had created 12 peers in a single day, which was more than Elizabeth I had created over the course of her forty-five-year reign!).

The succeeding dynasty, the Hanoverians, weren’t much better. George III was particularly liberal with peerages, though he was generally acting on the advice of ministers eager to win votes in the Lords. Political considerations ensured that the rate of creation remained high throughout the nineteenth and twentieth centuries.

By the 1950s, it was clear that something had to give. The House of Lords had become a dozy institution with many members who rarely bothered to show up. In a bid to reinvigorate the House, Harold Macmillan’s government introduced life peerages. This wasn’t a new concept, but until that point, life peerages had only been given to certain judges so they could take part in the House of Lords’ judicial work.

The Life Peerages Act 1958 allowed the Crown to confer baronies on individuals that would not be passed on to their descendants. It also specified that women were eligible for life peerages (female hereditary peers would have to wait until 1963 before they could sit in the Lords). Initially, hereditary peerages continued to be conferred alongside life peerages, but when Labour’s Harold Wilson came to power in 1964, he stopped the creation of hereditary peerages. Aside from a few exceptions under Margaret Thatcher,[4] only members of the Royal Family have received hereditary peerages since 1964.

Male royals usually get dukedoms when they marry,[5] but they also receive other titles as well. This ‘bundling’ isn’t unique to the Royal Family,[6] but their subsidiary titles are usually more geographically diverse than those of other hereditary peers. Their earldom typically references a Scottish city, while their barony mentions a city from Northern Ireland. This is why Prince Harry became Earl of Dumbarton and Baron Kilkeel as well as Duke of Sussex. Members of the Royal Family often use these subsidiary titles when visiting the countries in question, at least in official contexts.

However, none of this applies to female royals. They don’t receive any titular honors when they marry. Instead, their husbands are offered hereditary peerages. Perhaps the most famous example of this was when Princess Margaret’s husband, Anthony Armstrong-Jones, became Earl of Snowdon upon their marriage. This is because a husband can confer status on his wife, but a wife cannot confer status on her husband. Giving a title to the man ensures that both spouses are covered, though this tradition seems to have fallen by the wayside in recent years.[7]

Nowadays, hereditary peerages are entirely ceremonial in nature. The House of Lords Act 1999 removed most hereditary peers from Parliament, though 92 hereditary peers have remained in the House of Lords as a ‘transitional’ measure (you can read more about that here). In theory, any member of the Royal Family with a hereditary peerage could still sit in the House as one of the 92 excepted hereditary peers, but the Queen has prohibited them from doing so.[8]

While the number of new hereditary peers has declined sharply, there is an ever-increasing number of new life peers—over 270 new creations in the past eight years alone. Unlike hereditary peers, life peers still enjoy automatic seats in the House of Lords. Most are nominated by political parties to bolster their ranks in the House, but a significant minority of life peers are non-partisan appointments (e.g., former civil servants or high-profile religious figures).

The fact that peers still play an important political role has ensured that their ranks have been received regular infusions of fresh blood. The nineteenth century saw prominent industrialists and businessmen appointed to the House, while the twentieth century saw the admission of trade unionists, scientists, social justice campaigners, and a diverse range of politicians. More needs to be done in order to make the peerage truly representative of modern Britain, but the newest candidates are usually far removed from the popular image of the wealthy toff.

NOTES

[1] These were men who held lands directly from the king without any intermediate overlord. In return they were expected to provide the king with soldiers for his wars.

[2] Conversely, Scottish peerages remained tied to the land until the Union within England in the eighteenth century.

[3] The specific rules governing a title’s descent are set out in the Letters Patent which created it, and they can specify alternatives to primogeniture. For example, Earl Mountbatten of Burma had a special clause in his Letters Patent which allowed the title to pass to his eldest daughter.

[4] In 1983, Thatcher’s long-serving deputy, William Whitelaw, became Viscount Whitelaw, while the former Speaker of the Commons, George Thomas, became Viscount Tonypandy. The following year, former Prime Minister Harold Macmillan became Earl of Stockton. Neither Whitelaw nor Thomas had children, so their hereditary peerages became extinct on their deaths.

[5] Prince Edward bucked the trend by becoming Earl of Wessex (he allegedly chose this title because he heard it in Shakespeare in Love and liked it). However, it’s been announced that he will be created Duke of Edinburgh after his father dies.

[6] For example, the Earl of Stockton (Harold Macmillan) also received the title of Viscount Macmillan of Ovenden.

[7] One could argue that it would be better to give both spouses titles of their own in order to avoid the unfortunate implications of the present system.

[8] Even before the hereditary peers lost their seats, the Royal Family’s role in the House of Lords rarely extended beyond formally taking their seats.

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Can John Bercow Survive As Speaker?

Commons Speaker John Bercow’s reputation grows more and more tattered with each passing day. First, there were the accusations of bullying from two of his former private secretaries, one of whom was allegedly treated so badly that she developed post-traumatic stress disorder. Then, the former Gentleman Usher of the Black Rod said he’d been bullied by Bercow as well. Now, there are reports that the Speaker called the Leader of the Commons, Andrea Leadsom, “a stupid woman” and “f***ing useless.”

Anyone can lose their cool in a moment of anger, but these allegations suggest that Bercow has a habit of lashing out when faced with people he finds frustrating. Such behavior is inappropriate in any walk of life, but it’s even less acceptable coming from the Speaker of the House of Commons. Bercow’s response to these accusations has been problematic as well. While he flatly denies the allegations of bullying behavior, he appears to have tacitly acknowledged making foul-mouthed remarks about Leadsom, blaming his behavior on “an unusual and controversial day” in the Commons where “strong and differing views were expressed.” But when Leadsom confronted him about the remarks, he appears to have been quite dismissive and may have even called her a liar.

I can’t say I’m surprised by these events. Bercow has always struck me as an arrogant figure. When he was first elected Speaker, he abandoned the tradition of wearing court dress beneath the gown, saying “it isn’t me.” But that was precisely the point: the old dress code de-emphasized the personality of the individual Speaker. By putting his own feelings front and center, Bercow exalted the occupant over the office. On the other hand, one of his predecessors, Lord Weatherill, once observed that “I don’t think the Speaker should be the star. Parliament should be a forum, not a stage.”

Unfortunately, Bercow has taken the speakership in the opposite direction. His chairmanship of the House’s proceedings is often showy. While he initially condemned the ‘Punch and Judy’ atmosphere that often prevails in the Commons, his shouty interventions from the Chair make him seem just as bad as everyone else (even his defenders admit that his interventions often come across as ‘egotistical showboating’). There have also been persistent accusations of bias against the Conservatives, even though Bercow was once a Tory himself.

Bercow’s time as Speaker has not been without merit, however. He is a strong advocate for backbenchers, and he is not afraid to hold ministers accountable to the House. His decision to make the Rev. Rose Hudson-Wilkin his chaplain instead of a more establishment candidate was also commendable, even if it did ruffle some feathers at the time.[1] Bercow has also pursued an ambitious modernization agenda, though the results have been mixed. His resurrection of the urgent question was praiseworthy, but he also presided over a flawed selection process that almost resulted in the appointment of a patently unsuitable candidate as Clerk of the Commons.[2]

Despite the seriousness of the charges against Bercow, it seems that a critical mass of opposition has yet to develop. His supporters argue that the allegations are just sour grapes from traditionalists unhappy with his modernization agenda and his willingness to stand up to the Government, and the Commons’ own standards committee recently blocked the Parliamentary Commissioner for Standards from investigating the accusations of bullying. But his outburst toward Andrea Leadsom could prove to be the tipping point.

It’s also possible that MPs are waiting to see if Bercow will honor his pledge to stand down after nine years in office. That anniversary will occur on June 22, and it would be easier for MPs if he left voluntarily without being pushed. But if he tries to remain in the Chair, the tide could turn against him quite quickly.

NOTES

[1] For many years, the Speaker’s chaplain was also the Rector of St. Margaret’s, Westminster (Parliament’s ‘parish church’), which meant the chaplain was effectively chosen by the Dean and Chapter of Westminster Abbey. But when the two offices fell vacant in 2010, Bercow was unhappy with the Dean and Chapter’s proposed successor, arguing that the post shouldn’t go to “another white, middle-aged man.” He ended up making Hudson-Wilkin his chaplain instead..

[2] Even though the Clerk is supposed to be the House’s principal procedural adviser, the initial choice for the job was Carol Mills, an outsider from Australia with little knowledge of British parliamentary procedure. After an outcry, her appointment was ‘paused’ and the selection process ultimately started from scratch, though she did not put herself forward for consideration a second time. Bercow later blamed everyone but himself for the fiasco.

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Great Offices Of State vs. Great Officers Of State

When Sajid Javid was appointed Home Secretary, he became the first person of color to hold one of the Great Offices of State. However, he is not the first person of color to be a Great Officer of State–that honor goes to Baroness Amos, who served as Lord President of the Council from 2003-2007. Confused? Let me explain.

The Great Offices of State are the four most senior political offices in England and Wales. They are:

  • the Prime Minister;
  • the Chancellor of the Exchequer;
  • the Foreign Secretary; and
  • the Home Secretary.

It’s exceedingly rare for anyone to hold all four offices. So far, James Callaghan is the only one to have done so. But six individuals have held three of the offices,[1] and two people held multiple offices simultaneously.[2] Nowadays, the primacy of the House of Commons means that Great Offices of state are invariably held by MPs rather than peers, though this is not a legal requirement.[3]

The Great Officers of State, on the other hand, are an eclectic assortment of politicians and courtiers, including:[4]

  • the Lord High Steward; [5]
  • the Lord High Chancellor;
  • the Lord High Treasurer;
  • the Lord President of the Council;
  • the Lord Privy Seal;
  • the Lord Great Chamberlain;[6]
  • the Lord High Constable;
  • the Earl Marshal; and
  • the Lord High Admiral.

Three of these offices are usually vacant. The Lord High Steward and Lord High Constable are only appointed for a coronation, while the office of Lord High Treasurer has been placed in commission since 1714 (incidentally, the Prime Minister is one of these commissioners, which is why she is formally styled ‘First Lord of the Treasury’).

The Lord High Chancellor has custody of the Great Seal and is formally responsible for preparing and sealing official documents such as Letters Patent and Royal Proclamations.[7] He also advises the Queen on certain judicial appointments and exercises a portion of the Crown’s ecclesiastical patronage in her name.[8] The Lord High Chancellor performs a range of statutory functions as well, such as certifying the sovereign’s incapacity under the Regency Act 1937. Since 2007, the position of Lord High Chancellor has been combined with that of Secretary of State for Justice.

Aside from the Lord High Chancellor, the other Great Officers of State have sinecure jobs. I’ve discussed the offices of Lord President and the Lord Privy Seal elsewhere, but while neither job is particularly onerous, they do receive salaries under the Ministerial and Other Salaries Act 1975. Nowadays, these offices are usually given to the Leader of the Commons or the Leader of the Lords since those positions have no statutory basis.[9]

The Lord Great Chamberlain oversees those portions of the Palace of Westminster that aren’t under the control of either House of Parliament (e.g., the Sovereign’s Robing Room and the Royal Gallery); he also oversees Westminster Hall and the Chapel of St. Mary Undercroft along with the Speakers of both Houses.[10] He also plays a role in the State Opening of Parliament.[11] The office is hereditary, and the current occupant is the Marquess of Cholmondeley.[12] Because of his parliamentary duties, the Lord Great Chamberlain retained an automatic seat in the House of Lords after the rest of the hereditary peers were removed in 1999.

The Earl Marshal serves as a sort of national master of ceremonies, organizing events such as coronations, state funerals, and the State Opening of Parliament. He also serves as head of the College of Arms, but while his name appears on all grants of arms, the day-to-day work of the College is done by the heralds. Like the Lord Great Chamberlain, the post of Earl Marshal is hereditary, and it has been held by the Howard family since 1672. The Earl Marshal also remains a member of the House of Lords even though he is a hereditary peer.

The Lord High Admiral is the titular head of the Royal Navy. In recent years, the office was often put into commission like the office of Lord High Treasurer, but in 1964 it was taken out of commission and assumed by the Queen. She held the post until 2011, at which point she conferred it on the Duke of Edinburgh to mark his ninetieth birthday.

While most of the Great Officers of State have little political power nowadays, they nevertheless sit near the top of the official Order of Precedence for England and Wales. In fact, the Lord High Steward and the Lord High Chancellor even outrank the Prime Minister! So from a purely honorific standpoint, the Lord Presidency of the Council remains the highest office achieved by a person of color to date.

NOTES

[1] Herbert Henry Asquith and Winston Churchill were both Chancellor of the Exchequer, Home Secretary, and Prime Minister, while Harold Macmillan and John Major were Chancellor, Foreign Secretary, and Prime Minister. Rab Butler and Sir John Simon served as Chancellor, Foreign Secretary, and Home Secretary.

[2] Ramsay MacDonald combined the offices of Prime Minister and Foreign Secretary, while the Duke of Wellington was Prime Minister, Foreign Secretary, and Home Secretary all at once, albeit for less than a month.

[3] The most recent exception to this rule occurred when Lord Carrington served as Foreign Secretary from 1979-1982.

[4] Scotland has its own Great Officers of State.

[5] Not to be confused with the Lord Steward, who is a current member of the Royal Household.

[6] Not to be confused with the Lord Chamberlain, who serves as the head of the Royal Household.

[7] In practice, these functions are delegated to the Clerk of the Crown in Chancery and the staff of the Crown Office.

[8] Most of these posts are parochial appointments. The Lord High Chancellor’s portion of the Crown’s ecclesiastical patronage is determined by the value of the benefice in 1535. If it was less than £20 per year, the Lord Chancellor makes the appointment in the Queen’s name, but if it was over that amount, Her Majesty makes the appointment on the recommendation of the Prime Minister. Both the Lord High Chancellor and the Prime Minister are in turn advised by the Cabinet Office’s Honors and Appointments Secretariat.

[9] In a coalition government, the leader of the minor party will often become Lord President since the post of Deputy Prime Minister also lacks a statutory basis. Most recently, Liberal Democrat leader Nick Clegg served as Lord President during the Conservative/Liberal Democrat coalition of 2010-2015.

[10] As the name implies, the Palace of Westminster is technically a royal palace. Until 1965, the Lord Great Chamberlain exercised oversight of the whole building.

[11] Most notably, he takes part in the Royal Procession and commands the Gentleman Usher of the Black Rod to summon the Commons.

[12] Technically, the office is held in gross, which means the office is actually held by multiple individuals. Everyone who holds a fraction of the office is nominally ‘Joint Hereditary Lord Great Chamberlain,’ but only one person exercises the office at any one time. Since the Marquesses of Cholmondeley hold the largest share of the office (½), they act as Lord Great Chamberlain every other reign. Otherwise, it is exercised by someone from one of the other families with shares in the office.

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Sir Seamus Treacy, The Privy Council, And Northern Ireland

Tucked away in the list of orders approved at the April 24 meeting of the Privy Council is a curious entry:

It is this day ordered by Her Majesty in Council that the name of Sir Seamus Treacy be removed from the List of Her Majesty’s Most Honourable Privy Council, at his own request.

A Privy Counsellorship is usually a lifetime appointment, and it’s exceedingly rare for someone to relinquish it. In fact, it’s only happened nine times in the past 200 years. Before Sir Seamus, Lord Prescott was the last person to resign from the Council (his 2013 resignation was an act of protest over the Council’s delay in granting the Royal Charter on Self-Regulation of the Press). Others have been forced out–in 2011, Elliot Morley, formerly MP for Scunthorpe, was expelled following his conviction for false accounting in the parliamentary expenses scandal.

What makes Sir Seamus’s resignation even more unusual is that he only joined the Council in February. Why would someone resign after just two months? While there’s been no official word on the subject, Sir Seamus’s past may provide some clues. When he was made Queen’s Counsel in 1999, he went to court to avoid having to make the customary declaration of office because, as an Irish nationalist, he did not want to promise to “well and truly serve Her Majesty Queen Elizabeth II.” If Sir Seamus objected to the QC’s declaration of office, he would probably have been equally discomfited by the Privy Council oath given its full-throated pledge of loyalty to the Sovereign. The fact that he was appointed to the Council by Order but never actually took the oath may lend credence to this notion.[1]

Despite Sir Seamus’s political views, his appointment to the Council would have been automatic. He is a Lord Justice of Appeal in Northern Ireland, and appellate judges from all of the UK’s jurisdictions are made Privy Counsellors so they can take part in the work of the Judicial Committee of the Privy Council if necessary. It would be interesting to know if Sir Seamus was given an opportunity to decline the Privy Counsellorship, or if it was presented to him as a fait accompli.

If it’s true that Sir Seamus left the Council because of his nationalist views, it may be prudent to reconsider the practice of automatically conferring Privy Counsellorships on Lord Justices of Appeal from Northern Ireland. Since the Good Friday Agreement, Westminster has been forced into a delicate balancing act where the Crown is concerned. Northern Ireland has Queen’s Counsel, but they no longer promise to “well and truly serve” her. The Queen grants Royal Assent to legislation passed by the Northern Ireland Assembly, but MLAs don’t swear allegiance to her. Her Majesty appoints judges in Northern Ireland, but the Royal Arms aren’t displayed in most courtrooms.

Against this backdrop, should a nationalist judge really be expected to take an oath that pledges them to “assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty”? The Crown has already been removed from most oaths in Northern Ireland in the interests of community cohesion.[2] Besides, it’s not necessary to have all Lords Justices of Appeal from Northern Ireland on the Privy Council. Most of the day-to-day work of the Judicial Committee is done by the Justices of the Supreme Court and, since appellate judges from the United Kingdom’s other jurisdictions are also appointed to the Council, there are plenty of other judges who could pitch in if need be. It might be better if Northern Irish Lords Justices of Appeal were invited to join the Privy Council rather than being appointed automatically. This way, those who wished to have the honor could have it, while those who found it objectionable wouldn’t be placed in the same awkward position as Sir Seamus.

NOTES

[1] Most Privy Counsellors take the oath right away, but it’s possible for the Queen to appoint someone to the Council by Order and allow them to take the oath at a more convenient time.

[2] See, for example, the pledge of office taken by ministers in Northern Ireland set out in Schedule 4 of the Northern Ireland Act 1998.

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Was Anyone Ever Prosecuted For Violating The Royal Marriages Act?

Last week’s post about the Royal Marriages Act 1772 led a reader to ask an interesting question: was it ever used to prosecute anyone?

If you haven’t read the original post, here are the basics: the Royal Marriages Act required most descendants of George II to obtain the Sovereign’s permission before marrying. It didn’t matter if you were first in line for the throne or a distant cousin; the Monarch still had to sign off on your nuptials. Failure to obtain royal consent rendered the marriage null and void under British law, and any children born of the union would be considered illegitimate.

But the Act didn’t stop there. The person who presided over the wedding as well as the guests would all be subject to the penalties of praemunire. This would have been a devastating punishment, for as Sir Edward Coke observed, those convicted of a praemunire “shall be out of the king’s protection, and his lands and tenements, goods and chattels forfeited to the king: and that his body shall remain in prison at the king’s pleasure.[1]

Despite these stern provisions, there were no prosecutions for violating the Royal Marriages Act even though several of George III’s sons flaunted its provisions. Part of the problem may have been the difficulty in obtaining the necessary evidence to secure a conviction. As C. d’O. Farran noted in a 1951 journal article on the Royal Marriages Act, “evidence [of the crime] could only come from a police spy provided in advance with a free pardon. No one can be compelled to give evidence which will have the effect of incriminating the witness himself.[2]” Farran also noted that, as time wore on, public opinion would have made it increasingly difficult for the authorities to prosecute anyone under the Act.

Ultimately, it’s difficult to characterize the Royal Marriages Act as anything but a failure. The people whose behavior it was supposed to correct simply ignored it, and all it really did was create busywork for the Home Office.[3]

NOTES

[1] Quoted in Sir William Blackstone, Commentaries on the Laws of England, vol. 4 (London: A. Stahan and W. Woodfall, 1791), 117-118.

[2] C. d’O. Farran, “The Royal Marriages Act 1772,” The Modern Law Review, vol. 14, no. 1 (January 1951), 55-56.

[3] For a description of the Home Office’s role in the consent process c. 1950, see “Extract from Eagleston’s Memorandum ‘The Home Office and the Crown’ Part I” last modified November 12, 2007,  http://www.heraldica.org/topics/britain/TNA/HO_45_25238.htm.

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Behind The Crown: The Truth About Prince Philip’s Title

I have been a fan of The Crown since it first started airing on Netflix. While the show primarily focuses on the private lives of the Royal Family, legal/constitutional issues do serve as plot points from time to time. This post is the first in a series that will examine The Crown‘s portrayal of these matters. Please note that, while I will not discuss the show’s plot in detail, there will inevitably be some mild spoilers. 

At the end of “Lisbon,” the Queen attempts to mollify the Duke of Edinburgh by making him a prince. While the Duke did in fact receive the title in 1957, it was just the final step in a long, drawn out process that had been chugging along for years. Thanks to documents from Britain’s National Archives, we can look behind the curtain at the secret process that led to the Duke of Edinburgh becoming ‘Prince Philip.[1]

When Lieutenant Philip Mountbatten married Princess Elizabeth, George VI made him Duke of Edinburgh and granted him the style of ‘Royal Highness.[2]’ He remained ‘His Royal Highness The Duke of Edinburgh’ even after his wife ascended the throne. While protocol dictates that, a woman takes her husband’s status and the feminine form of his titles, a husband does not receive any title or status from his wife.[3]

Even though the husbands of female sovereigns do not automatically receive titles, they have often been given various marks of distinction. When Philip II of Spain married Mary I, an Act of Parliament made him King of England and Ireland.[4] Over a century later, Mary II insisted that her husband, William of Orange, should rule alongside her as co-monarch, which is why we speak of the reign of ‘William and Mary.’ Their successor, Anne, was married to a Prince of Denmark and Norway named George, but the only English title he received was ‘Duke of Cumberland.’ In the nineteenth century, Victoria wanted to make her husband Albert ‘King Consort,’ but when faced with opposition from her ministers, she opted for the title of ‘Prince Consort’ instead.[5]

Like Victoria, the present Queen was eager to honor her husband. As early as September 1952, she declared that he would rank immediately after her in the official order of precedence, except where provided otherwise by Act of Parliament (consequently, Philip’s gripe in The Crown that he is outranked by his eight-year-old son is not entirely accurate).[6]

By 1954, the Queen had hit upon the idea of making the Duke of Edinburgh a ‘Prince of the Commonwealth.’ She raised the issue with the Prime Minister, Sir Winston Churchill, and on May 9, he wrote to the Lord Chancellor, Lord Simonds, to seek his advice on the subject. Sir Winston indicated that he was not too keen on the Queen’s preferred title, saying “[t]here is nothing singular about it as there might easily be several.” He personally preferred the title of Prince Consort, though he was anxious to confirm that such a title would have no constitutional implications.[7]

Lord Simonds confirmed Sir Winston’s belief that the title of Prince Consort lacked any constitutional significance, and he suggested that the Queen could confer it by Letters Patent just as Victoria had done with Prince Albert. The Lord Chancellor also shared the Prime Minister’s misgivings about the title of Prince of the Commonwealth, though he stressed that “I hesitate not to concur in a proposal made by The Queen.”

Lord Simonds believed that the Queen’s preferred title could present diplomatic challenges since India was a republic and therefore did not recognize the Queen as head of state.[8] The Commonwealth Relations Office soon entered the debate. Its constitutional advisor, Sir Charles Dixon, contributed to a draft memorandum which set out the procedures to be followed in conferring a princely title on the Duke of Edinburgh. If the title were to be Prince Consort, then the Queen’s Private Secretary would simply notify the Governors General of the Commonwealth Realms of her intentions (as a courtesy, a similar communication would be sent to the President of India as well). The actual grant of the title would be by Letters Patent under the Great Seal of the United Kingdom, making it a purely domestic act. However, if the Queen wished to make the Duke a Prince of the Commonwealth, the mandarins believed that there would have to be substantive consultation with the other Commonwealth countries, and they felt that unanimous consent would not be forthcoming.[9]

The Secretary of State for Commonwealth Relations, Viscount Swinton, echoed his advisor’s opinion in a letter to Churchill dated May 13. Lord Swinton believed that both India and Pakistan would likely to object to the title Prince of the Commonwealth, while Canada would view it with ambivalence. Consequently, Swinton threw his weight behind the title of Prince Consort since he believed it would give rise to fewer objections.[10]

At that point, the Foreign Secretary, Anthony Eden, complicated matters further by suggesting yet another title: Prince of the Realm. Sir Winston passed this suggestion on to the Lord Chancellor, who was not terribly impressed with it. He pointed out that, unless a particular realm were specified, the title would essentially be meaningless. At the same time, he also advanced a further argument against the title Prince of the Commonwealth by noting that it could cause confusion within Australia since it was formally known as ‘the ‘Commonwealth of Australia.[11]

Matters took an unexpected turn in June when the Queen informed Sir Winston that the Duke of Edinburgh had no desire to receive a princely title of any kind, but the Prime Minister presciently ordered that the discussions on the subject be preserved for future reference.[12]

Despite the Duke’s reluctance to accept a new title, the Queen was determined to make him a Prince of the Commonwealth. When the Prime Ministers of the Commonwealth came to London for a summit in early 1955, she asked Sir Winston to gauge their support for the title, though she also stressed that she would only proceed with the proposal if it had the unanimous support of the Commonwealth governments.

Initial reactions were mixed. Sir Winston told the British Cabinet that the Prime Ministers of Australia, New Zealand, and Pakistan supported the Queen’s proposal, but others were less enthusiastic. The Prime Minister of India noted that, while he personally had no objections to the title, it could conceivably generate controversy back home. The Canadian Prime Minister, on the other hand, worried about its potential constitutional implications. Meanwhile, the Deputy Prime Minister of South Africa declined to give a definitive answer until he had consulted his colleagues back home. However, Sir Winston believed that, if Canadian ministers could be persuaded to support the title, their South African counterparts would eventually fall into line.[13]

His optimism proved to be misplaced. The South African and Canadian governments ultimately came out against the title of Prince of the Commonwealth, and their opposition effectively torpedoed the proposal. On February 9, Sir Winston informed the British Cabinet that the Queen realized that her preferred title was no longer an option, though she was determined to find a suitable title for her husband.[14]

The two most obvious alternatives were ‘Prince Consort’ or ‘Prince Royal,[15]’ but the Prime Minister told his Cabinet colleagues that the Queen was not fond of either option. Ministers discussed the matter and came up with a simpler alternative (‘the Prince’), which the Prime Minister agreed to suggest to Her Majesty informally.[16]

Toward the end of February, the new Lord Chancellor, Viscount Kilmuir, explored the pros and cons of the new, shorter title in a memorandum for Churchill.[17] Lord Kilmuir saw its lack of a geographic element as its main advantage since it neatly sidestepped regional or national jealousies. The title would also be unique to the Duke, though Lord Kilmuir recognized that it could cause confusion later on when the Queen conferred the title of Prince of Wales on Prince Charles since people would inevitably refer to the boy as ‘the Prince’ as well.[18]

The Lord Chancellor also examined the thorny question of whether the Duke might already be a prince. Although he had been born a Prince of Greece and Denmark, he renounced those titles when he was naturalized as a British citizen. The fact that he was already a ‘Royal Highness’ muddied the waters further. While that style is often associated with British princes, it is not itself a definitive indicator of princely rank. To make matters worse, the Duke had been described as a prince in some official documents but not others. In the end, Lord Kilmuir decided that the Duke was not, in fact, a prince, and this view was buttressed by a Home Office mandarin who noted that George VI had specified that the Duke should be identified as ‘His Royal Highness Philip, Duke of Edinburgh’ when Prince Charles’ birth was registered.[19]

Bolstered by the support of the Lord Chancellor and the Home Office, Sir Winston approached the Queen with the suggestion that the Duke should be known as ‘His Royal Highness The Prince.’ The capitalization of the article was significant. Generally, only princes who were also the Sovereign’s children received that distinction, so giving it to the Duke would highlight his important position within the Royal Family.

The Queen accepted Sir Winston’s suggestion, and the Cabinet returned to the issue at its March 2 meeting.[20] Ministers questioned whether the Duke’s new title might end up giving him precedence over the Prince of Wales, but they decided to let the Queen sort that out at a later date. Viscount Swinton, the Commonwealth Secretary, confirmed that it was no longer necessary to seek the agreement of the other Commonwealth governments, though as a matter of courtesy, they should be informed of the decision ahead of time.

Toward the end of the debate, the Lord Chancellor addressed the issue of whether the Queen should receive formal advice from her ministers before conferring the title. In this case, he argued that it was the Sovereign’s personal decision, though he stressed that ministers should still be consulted before she made a final decision; however, the Government would not be offering advice in the constitutional sense of the term.[21] Lord Kilmuir suggested that constitutional niceties could be observed by having the Prime Minister write a letter to the Queen in which he commended her choice.

The notion that the Sovereign could confer a title without formal ministerial advice seems to have weighed heavily on Lord Kilmuir’s mind. Five days after he raised the issue in Cabinet, he reversed course. In a letter to Churchill, the Lord Chancellor noted that Victoria had sought her ministers’ advice before making Albert Prince Consort, so he felt that the Queen should also receive formal advice from the Government so that any “criticism that may arise should fall upon [ministers] and not upon her.[22]” However, he noted that, given the uniquely personal nature of the matter, the Government could not object if the Queen declined to follow their advice.

With the Cabinet lined up behind the title of ‘His Royal Highness The Prince,’ Sir Winston formally commended the title in a letter to the Queen.[23] But in the end, nothing happened. Her Majesty did not act on Churchill’s letter, and the issue of the Duke’s title appears to have been pushed to the side for two more years.

The sources do not provide a clear explanation for the pause, but a February 1957 letter from then-Prime Minister Harold Macmillan to the Queen’s Private Secretary, Sir Michael Adeane, may hold a clue. Macmillan criticized the Cabinet’s proposed title (‘His Royal Highness The Prince’), saying that it “falls between the two stools of being neither sufficiently formal nor sufficiently popular. It sounds either rather stiff, or to be a colloquialism or shortened version of a longer title.[24]” Instead, the Prime Minister thought it would be better if the Queen made the Duke a ‘Prince of the United Kingdom of Great Britain and Northern Ireland and Her other Realms and Territories.’

However, the mention of ‘Her other Realms and Territories’ would prove to be a sticking point. Macmillan had evidently believed that the Queen could confer the title as Sovereign of the United Kingdom without consulting the other Commonwealth governments, but two days after he wrote to the Palace, his Principal Private Secretary, Sir Frederick Bishop, queried the Commonwealth Relations Office on that point. Sir Frederick made it clear that Downing Street would prefer to jettison the reference to ‘Her other Realms and Territories’ if it would require consultation with the Commonwealth Prime Ministers.[25] The Commonwealth Secretary (the Earl of Home, later Alec Douglas-Home) declared that such consultation would, in fact, be necessary unless the Duke’s title was confined to the United Kingdom.[26]

Meanwhile, the Clerk of the Crown in Chancery, Sir George Coldstream, was working on the Letters Patent which would confer the Duke’s title.[27] The instrument he devised was modeled in part on Victoria’s Letters Patent bestowing the title of Prince Consort on Prince Albert.[28] The initial draft included a reference to the Queen’s ‘other Realms and Territories,’ but this was ultimately omitted following input from the Commonwealth Secretary.[29]

An amended draft of the Letters Patent was submitted to the Palace on February 14, and the following day the Queen’s Private Secretary let the Crown Office know that the Queen felt the document was ‘excellent.[30]’ However, she made a small change by inserting ‘The’ before ‘Prince Philip’ in the Duke’s new style. Again, the inclusion of this little article was intended to show that he was a top-tier prince just like the Sovereign’s children. Once all the details had been ironed out, the Prime Minister observed the constitutional niceties by formally advising the Queen to confer the title. The Letters Patent passed under the Great Seal on February 22, and the Duke’s new style was formally proclaimed in the London Gazette that same day.[31]

On the eve of the announcement, there were last-minute discussions between the Palace and Downing Street about the way in which the news should be broken to the press. Both sides believed that Number 10 should make the announcement in order to emphasize that the Queen was acting on ministerial advice. The fact that the whole project was ultimately Her Majesty’s idea was never mentioned.

In The Crown, the Duke’s assumption of his princely title is marked by a ceremony where the Queen places a coronet on his head and invests him with various regalia. It is a neat bit of cinematography, but unfortunately it was invented for the show. Apart from the Prince of Wales, there are no formal investiture ceremonies for princes, and they receive no special regalia.[32]

The decision to give the Duke of Edinburgh a princely title was far more complicated than The Crown makes it seem, and the extended wrangling within the government shows how seriously they take matters of protocol.

NOTES

[1] I am greatly indebted to François Velde of Heraldica.org for making these documents available online.

[2] Recorded in The Gazette (London Gazette), issue 38128, 21 November 1947, pg. 5495.

[3] This doctrine is a consequence of the fact that English common law once held that, upon marriage, a woman’s legal identity would be subsumed into her husband.

[4] The statute 1 Mary sess. 3 c. 2 is an interesting document because, while it gave Philip some of the trappings of royal power (e.g., his name would appear alongside his wife’s in official documents), it also sought to preserve Mary’s authority over the kingdom. Philip could “aid her Highness…in the happy administration of her Grace’s realms and dominions,” but he had to obey English law, and Mary would enjoy exclusive access to “the benefices and offices, lands, revenues and fruits of the said realms and dominions.” Additionally, she could only grant offices and lands to natural-born English subjects (this provision was intended to stop Philip from filling the English government with cronies from Spain). Most importantly, Philip would only enjoy these privileges during his wife’s lifetime.

[5] The fact that Albert was German made him suspect in the eyes of many British people, and he was not terribly popular in the first years of his marriage. Although Victoria gave him the style of ‘Royal Highness’ shortly before their wedding, she had to wait seventeen years before making him ‘Prince Consort.’

[6] Recorded in The Gazette (London Gazette), issue 39657, 30 September 1952, pg. 5147. She could not alter Philip’s precedence in Parliament since that was fixed by the statute 31 Henry 8 c. 10.

[7] Sir Winston Churchill to Lord Simonds, May 9, 1954 in François Velde, “LCO 6/3677 Title of Prince HRH Philip Duke of Edinburgh,” Heraldica.org, accessed December 30, 2017, http://www.heraldica.org/topics/britain/TNA/LCO_6_3677.htm. Hereinafter cited as ‘Velde.’

[8] Lord Simonds to Sir Winston Churchill, May 10, 1954, in Velde.

[9] Draft Memorandum from the Commonwealth Relations Office, May 11, 1954, in Velde.

[10] Viscount Swinton to Sir Winston Churchill, May 13, 1954, in Velde.

[11] Memorandum from Lord Simonds, May 13, 1954(?), in Velde.

[12] Personal Minute from Sir Winston Churchill, June 23, 1954, in Velde.

[13] The National Archives (hereinafter cited as ‘TNA’), CAB 128/40/21, Most Confidential Record to CC 55 (9), February 4, 1955.

[14] TNA, CAB 128/40/22, Most Confidential Record to CC 55 (10), February 9, 1955.

[15] ‘Prince Royal’ would have been an innovation, though the feminine version has been associated with the Sovereign’s eldest daughter since the seventeenth century. The title of ‘Princess Royal’ is not held automatically. The current holder, Princess Anne, did not receive it until 1987. The Queen herself was never Princess Royal since, when she was still a princess, the title was held by her aunt, Princess Mary, Countess of Harewood.

[16] Most Confidential Record to CC 55 (10), February 9, 1955.

[17] Viscount Kilmuir to Sir Winston Churchill, February 26, 1955, in Velde.

[18] The heir to the throne does not automatically become Prince of Wales. The title must be specially conferred by the Sovereign, and in the case of Prince Charles, that did not happen until 1958. However, he was Duke of Cornwall from the moment of his mother’s accession.

[19] Sir Austin Strutt to George Coldstream, February 28, 1955, in Velde.

[20] TNA, CAB 128/40/23, Most Confidential Record to CC (55) 19, March 2, 1955.

[21] At first glance, this might seem like a radical proposition since the Sovereign’s dependence on ministerial advice is one of the cornerstones of constitutional monarchy, but in practice there are a number of exceptions to this rule. For example, appointments to the Order of the Garter and the Order of the Thistle have been made without ministerial advice since 1946.

[22] Viscount Kilmuir to Sir Winston Churchill, March 7, 1955, in Velde.

[23] A draft of the letter is in Velde: it begins “The Prime Minister with his humble duty…” It seems to have been sent to the Queen no later than March 9. See Sir Winston Churchill to Viscount Kilmuir, March 9, 1955, in Velde.

[24] Harold Macmillan to Sir Michael Adeane, February 11, 1957, in Velde.

[25] Sir Frederick Bishop to D. I. Cole, February 13, 1957 in Velde.

[26] Sir Frederick Bishop to Sir George Coldstream, February 14, 1957 in Velde.

[27] The Clerk of the Crown in Chancery heads the Crown Office, which is the department responsible for preparing official documents such as Letters Patent.

[28] Sir George Coldstream to (?), February 14, 1957, in Velde.

[29] Sir George Coldstream(?) to Sir Frederick Bishop, February 14, 1957 in Velde. See also Sir George Coldstream(?) to Sir Austin Strutt(?), February 14, 1957 in Velde.

[30] Sir Michael Adeane to Sir George Coldstream, February 15, 1957, in Velde.

[31] Recorded in The Gazette (London Gazette), issue 41009, 22 February 1957, pg. 1209.

[32] This is not the first time The Crown has invented a ceremony. In the very first episode, there is a scene where George VI gives Philip his peerage titles (Duke of Edinburgh, Earl of Merioneth, and Baron Greenwich) and makes him a Knight Companion of the Order of the Garter. From a ceremonial standpoint, it is a muddled mess that has little basis in reality.

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Why Did The Queen Have To Consent To Prince Harry’s Marriage?

Meghan Markle is one step closer to becoming a member of the Royal Family after the Queen formally consented to her marriage to Prince Harry. In this post, I’ll look at why Prince Harry needs Her Majesty’s consent to marry, and I’ll explore the historical background to this rather arcane subset of British marriage law.

Section 3(1) of the Succession to the Crown Act 2013 declares that the first six individuals in line for the throne must obtain the Sovereign’s consent before they marry, and those who fail to do so are automatically removed from the line of succession. Furthermore, the Act also requires the Sovereign’s consent to be signified in three different forms:

  1. a verbal declaration in the presence of the Privy Council;
  2. an instrument sealed with the Great Seal; and
  3. a record in the Books of the Privy Council.

The process set out in the Succession to the Crown Act is essentially a reenactment of the Royal Marriages Act 1772, with a few exceptions. Under the earlier Act, all descendants of George II were obliged to obtain the Sovereign’s consent before marrying, unless they happened to descend from a princess who had married into a foreign family. The consequences for failing to obtain the Monarch’s consent were also harsher since marriages which contravened the Act would be null and void, and celebrating the marriage, or even just attending it, were criminal offenses.

Interestingly, the Act allowed members of the Royal Family to circumvent the Sovereign. If the Monarch withheld their consent, the royal in question could notify the Privy Council of their intent to marry. They would then be free to wed after twelve months, provided that the Lords and Commons hadn’t passed resolutions disapproving of the marriage.[1] This provision is highly unusual, as formal mechanisms to override an act of the Sovereign are very rare.[2]

The Royal Marriages Act was the brainchild of George III. His brother, the Duke of Cumberland and Strathearn, had married a commoner against his wishes, and the King wanted to prevent this from happening again (after the Act received Royal Assent, George discovered, much to his chagrin, that another of his brothers, the Duke of Gloucester and Edinburgh, had married the illegitimate daughter of Sir Edward Walpole several years earlier).

Despite the King’s wishes, the Act failed to stop members of his family from entering into ‘unsuitable’ marriages. In 1785, the Prince of Wales secretly married a divorced Catholic named Maria Fitzherbert. This marriage was doubly illicit, for not only did it violate the Royal Marriages Act, but it also violated the Act of Settlement 1701, which barred individuals with Catholic spouses from ascending the throne. However, their marriage never became public knowledge, and the Prince later married Princess Caroline of Brunswick in 1795 (since the Royal Marriages Act invalidated his marriage to Fitzherbert, he wasn’t actually committing bigamy).

Other members of the Royal Family continued to marry in defiance of the Act. In 1794, another royal child, Prince Augustus, married Lady Augusta Murray without obtaining his father’s consent. Initially, the couple had been married by an Anglican clergyman in Rome, but after moving to England, the couple learned that, aside from the provisions of the Royal Marriages Act, the fact that they had married in Rome could prove legally problematic. They attempted to rectify the matter by marrying a second time. This marriage wasn’t legal, either, but the curate who performed the ceremony had no idea who they were since they were careful to avoid using their titles.

When George III discovered their marriage, he sought to have it invalidated. The King’s Proctor (i.e., the Crown’s lawyer in the ecclesiastical courts) sought a declaration of nullity from the ecclesiastical courts,[3] and the Arches Court of Canterbury subsequently ruled that the marriage was “absolutely null and void,[4]” and their son was declared illegitimate.[5] Prince Augustus proceeded to ignore the ruling and continued living with Lady Augusta before eventually separating from her several years later. In 1831, the Prince (now Duke of Sussex) contracted another marriage in defiance of the Royal Marriages Act. But by now, his marital exploits were greeted with a shrug, and while his new wife was never recognized as Duchess of Sussex, she received the title of Duchess of Inverness from Queen Victoria in 1840.

The Royal Marriages Act is a prime example of the dangers of legislating in haste. The fact that it applied to most descendants of George II meant that, as time passed, more and more people were subject to its provisions. This included people who weren’t even British. Due to the Royal Family’s German connections, there were a number of descendants of George II in that country. For example, George III’s fifth son, the Duke of Cumberland, became King of Hanover when the accession of Queen Victoria ended the personal union of the British and Hanoverian crowns.[6] His family, though settled in Germany, continued to seek the British Monarch’s consent for their marriages. This caused some awkwardness when one of his descendants, Prince Ernest Augustus, Duke of Brunswick, asked George VI to consent to the marriage of his son. However, since the United Kingdom was still technically at war with Germany, the Foreign Office advised the King to withhold his consent.[7]

While many people welcomed the fact that the Succession to the Crown Act only required the first six people in line for the throne to seek the Sovereign’s consent, some have questioned whether this provision should exist at all. Writing in The Independent, Labour MP Chris Bryant called the proposal “a tawdry feudal leftover” and questioned whether the Monarch should be allowed to effectively exclude people from the succession when that has historically been Parliament’s prerogative.

Bryant’s fears of royal caprice are probably unfounded—since Britain is a constitutional monarchy, the decision to grant or withhold consent would be founded on ministerial advice rather than the Sovereign’s personal wishes—but it’s fair to ask whether requiring the Monarch’s consent actually serves a purpose in the twenty-first century. Given contemporary mores, it’s hard to imagine a situation where a government would advise the Monarch to refuse consent to a marriage. On what grounds could ministers realistically object? It might be justified if a royal wanted to marry someone cartoonishly evil such as a neo-Nazi, but that seems like a remote possibility. And honestly, any royal who sought to marry someone like that would probably have damaged their reputation to the point that they would have to be removed from the line of succession anyway, rendering the issue of royal consent to their marriage moot.

NOTES

[1] To successfully block the marriage, both Houses of Parliament would have to voice their disapproval.

[2] Compare this to the process of giving Royal Assent to legislation where there is no mechanism to override a royal veto. Generally, Britain has preferred to limit the Monarch’s power through conventions rather than statutory mechanisms. This is also true for most of the Sovereign’s other constitutional functions.

[3] At this time, the ecclesiastical courts had exclusive jurisdiction over matrimonial cases.

[4] The case, Heseltine v. Lady Augusta Murray, does not appear to have been reported in the usual manner. However, a summary of it can be found as a footnote in the report of Nokes v. Milward in Jesse Adams, Report of Cases Argued and Determined in the Ecclesiastical Courts at Doctor’s Commons and the High Court of Delegates, vol. 2 (London: S. Sweet, 1825) 400-401.

[5] After Prince Augustus’s death, his son attempted to succeed his father as Duke of Sussex. Queen Victoria referred his claim to the House of Lords’ Committee for Privileges, which agreed that the Prince’s marriage was invalid and dismissed the claim. The full report of the case can be found at John E. P. Wallis, ed., Reports of State Trials: New Series, vol. 6 (London: Eyre and Spottiswoode for Her Majesty’s Stationery Office, 1894) 80-116.

[6] Hanoverian law did not allow a woman to rule.

[7] The relevant documentation from the National Archives can be found at François Velde, “LCO 2/3371A,” Heraldica.org, accessed March 15, 2018, http://www.heraldica.org/topics/britain/TNA/LCO_2_3371A.htm.

 

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The Queen And Government Appointments

I thought I’d mark Theresa May’s Cabinet reshuffle by sharing this document which I recently obtained through Britain’s Freedom of Information Act:

This is Theresa May’s formal submission to the Queen recommending the appointment of her new government after she became Prime Minister in July 2016. The reference to the Prime Minister’s ‘humble duty’ and the use of the third person have been standard in documents such as these since at least the nineteenth century. As usual, the Queen has signified her acceptance of the advice by writing ‘Approved’ along with her initials in the upper right-hand corner.

This document isn’t quite the whole story, however. One of the axioms of constitutional monarchy is that the Sovereign is obliged to accept ministerial advice, yet the Monarch also has the right to be consulted, the right to encourage, and the right to warn. In order to reconcile these seemingly contradictory tenets, a practice has emerged whereby ministers often consult the Sovereign informally before submitting formal advice. This allows the Monarch to voice any concerns they may have, though if ministers insist on offering unpalatable advice, the Sovereign must ultimately accept it.[1] In this case, the practice of submitting informal advice ahead of time also has the advantage of allowing Downing Street to publicly announce appointments sooner than if they had to wait for the Queen to approve a formal submission from the Prime Minister.[2]

At first glance, this document might seem like nothing more than a bit of trivia for Westminster wonks like me, but the fact that I’m able to publish it at all is nothing short of a miracle (I’ll tell the story of how I got the Government to release it in a separate post). Thanks to section 37(1)(a) of the Freedom of Information Act, information which ‘relates to’ communications with the Sovereign is exempt from disclosure. Since 2010, this exemption has been absolute, meaning the Government is not obliged to consider any public interest arguments in favor of releasing the information. This is supposed to protect the Queen’s political neutrality by providing her with a safe space in which she can discuss issues with ministers, but the Government often interprets this exemption as broadly as it possibly can. Consequently, large amounts of information—including anodyne documents such as this one—won’t be publicly released until well after the Her Majesty’s death. This makes it difficult for the public to understand the monarchy’s role in government, and in the long run, I don’t think this approach is doing the Crown any favors.

NOTES

[1] For an example of ministers sticking to their guns in the face of royal opposition, see Anne Twomey, The Chameleon Crown: The Queen and Her Australian Governors (Sydney: The Federation Press, 2006) 246-258.

[2] Not every government observes this courtesy. When Tony Blair attempted to abolish the office of Lord Chancellor in 2003, it was alleged that he failed to consult the Queen ahead of time, and Lord Irvine of Lairg’s 2009 submission to the House of Lords’ Select Committee on the Constitution lends credence to this view. Gordon Brown, on the other hand, was said to be much more conscientious about consulting Her Majesty before announcing his ministerial colleagues.

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