Lords Clerks Go Wigless

Earlier this week it was revealed that the clerks in the House of Lords will no longer wear their traditional uniform on a day-to-day basis. Gone are the horsehair wigs, court jackets, and white bowties; the gown will remain, but it will now be worn over normal business attire. The customary attire will, however, still appear on ceremonial occasions.[1] The stated rationale for the change is that, since the pool of clerks who can serve at the table has been expanded due to the pandemic, it would be too expensive to procure extra uniforms.[2] This brings the Lords’ practice in line with that of the Commons, where clerks have been dressing down since 2017.

The announcement has provoked a furor in some quarters. It’s not just the change itself that’s controversial, but also the way in which it came about. As Lord Cormack explained to The Spectator, “I don’t think that changes of this sort should be made without consulting the view of the House. There should have been a vote on this and the House should have decided. If it had been the majority view of the House, I would have spoken against it but I would have accepted it – I am a democrat. I deeply regret the way in wish this was decided.”  

Regardless of what one thinks about the traditional uniform, Lord Cormack has a point. If The Spectator is correct, the Clerk of the Parliaments made this change even though it was opposed by the Lord Speaker and the party leaders in the Upper House. Given that level of opposition, the matter should have been subject to wider consultation, or even decided by a vote of the whole House. When Lord Irvine of Lairg wanted to stop wearing knee breeches and tights when presiding over the House, he made his case to the Procedure Committee. They endorsed his proposal, and after debate, the whole House approved it as well.[3] The system worked.

There is an argument to be made for updating the clerks’ dress, but it’s one that needs to be made rather than imposed. To do otherwise just generates unnecessary ill-will.   

[1] The court jacket and bowtie will be worn for introductions and prorogation, while wigs will appear at the State Opening of Parliament.

[2] People on social media have questioned this claim, but without more information about the cost of the uniforms or the way such things are funded, it’s hard to draw firm conclusions on the matter.

[3] Earl Ferrers tabled a motion to block the change, but it ultimately failed.

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The Strange Saga Of The Information Commissioner’s Reappointment

On July 13, 2021, the following notice appeared in The London Gazette:

THE QUEEN has been pleased by Letters Patent under the Great Seal of the Realm dated 9 July 2021 to re-appoint Elizabeth Anne Denham, to be the Information Commissioner, for a further period of three months and thirteen days commencing on the 18 July 2021.

This seemingly innocuous statement was the start of a bizarre saga that ultimately resulted in the Government admitting that the Letters Patent were a legal nullity.

Denham became Information Commissioner on July 18, 2016 under the provisions of the Data Protection Act 1998. Her appointment was for a five-year term; however, the Data Protection Act 2018 repealed the 1998 Act and extended her term until July 2023.[1] Crucially, the 2018 Act also established that the Information Commissioner cannot be reappointed.[2]

In January 2021, the Department for Digital, Culture, Media and Sport (DCMS) announced that Denham had agreed to extend her term of office until October 31, 2021 in order to allow time for the recruitment of her successor (why this was necessary when her term didn’t end until 2023 was not addressed). The Letters Patent of July 9, 2021 purported to give effect to Denham’s decision (though due to a miscalculation, the extension granted by the Letters Patent only runs until October 30, 2021).[3]

The day after Denham’s reappointment was gazetted, Rich Greenhill wrote to the ICO to ask how it could be squared with the provisions of the Data Protection Act 2018. The ICO’s response claimed that, despite the wording of the Gazette notice, Denham had not, in fact, been reappointed.[4] Unsatisfied with that response, Greenhill informed the DCMS that he would seek judicial review of the Letters Patent on the grounds that they were unlawful.[5]

Remarkably, the Government Legal Department responded on September 10 conceding that the Letters Patent of July 9 were indeed unlawful. However, because they were a legal nullity, they argued that this obliviated the need for judicial review. They also stated that, since Denham had asked to be relieved of office with effect from December 1, 2021, any judicial review would be purely academic in nature.

The Government’s actions here are unlikely to be nefarious, but it’s still an unfortunate turn of events. Either the DCMS didn’t realize they were violating the 2018 Act, or they didn’t care. Neither option is particularly attractive. Also, this isn’t the first time this Government has asked the Queen to do something that has later turned out to be a legal nullity. This probably won’t generate the same furor as the 2019 prorogation controversy, but it’s certainly not helpful for the Palace.

It goes without saying that ministers shouldn’t advise the Sovereign to perform unlawful acts. Even though constitutional convention dictates that the blame lies with the minister, it puts the Sovereign in an incredibly awkward position. Their ability to resist unlawful advice is limited. While the Monarch may ask a minister to reconsider their advice, they are generally obliged to accept that advice if the minister persists. There are of course situations where the Sovereign is arguably entitled to refuse advice, but they are exceptional. The Monarch cannot (and should not) be expected to police the constitution on a day-to-day basis.[6]

This might not be the end of the story, either. The Government’s insistence that the Letters Patent don’t need to be formally rescinded is problematic: Jon Baines of Mischon de Reya has suggested it could lead to questions about the validity of Denham’s actions during the remainder of her term. The consequences of the Government’s unforced error could continue to reverberate for some time.

[1] See Schedule 20(19).

[2] See Schedule 12(2)(4).

[3] Rich Greenhill to the Secretary of State for Digital, Culture, Media, and Sport, 17 August 2021, 11 https://www.mishcon.com/assets/managed/docs/downloads/doc_3363/ICO%20reappointment%20-%20letter%20before%20claim%20-%20RG%2020210817%20Redacted.pdf.

[4] Greenhill, 15-17.

[5] Greenhill, 1. He argues that, since the Crown cannot revoke the Letters Patent at common law and none of the statutory mechanisms for removing the Information Commissioner from office have been triggered, judicial review is the only remedy. In the past, the writ of scire facias could be used to obtain the revocation of Letters Patent, but this writ has been abolished. Despite this, Greenhill submits that modern judicial review could be substituted for the former proceedings.  

[6] It’s worth remembering that, unlike an American president, there are few formal checks on the Sovereign’s power. If, for example, the Monarch refused to accept ministerial advice, there would be no constitutional mechanism to circumvent their decision beyond the government resigning in protest.  

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On The Title Of Northern Ireland’s Chief Judge

Dame Siobhan Keegan took office today as Northern Ireland’s chief judge and there has been some debate on Twitter over her decision to style herself ‘Lady Chief Justice’ rather than ‘Lord Chief Justice.’

‘Lord Chief Justice’ is the statutory form of the title, and some have argued that she can’t change it unless the relevant legislation is amended. Others (such as Conor McCormick) have argued that sections 36 and 37 of the Interpretation (Northern Ireland) Act 1954 render a statutory change unnecessary.

I’m agnostic on the question, but the case of Dame Elizabeth Butler-Sloss may be illuminating. When she joined the Court of Appeal of England and Wales in 1988, she was styled ‘Lord Justice Butler-Sloss’ since that was the title used in the Senior Courts Act 1981 (known as the Supreme Court Act 1981 until 2005). In 1994, the Master of the Rolls issued a Practice Note allowing her to be styled as ‘My Lady, Lady Justice Butler-Sloss’ in court. However, the Practice Note stated that the masculine version of the title would remain the official one until Parliament amended the Senior Courts Act 1981. This change was eventually made by section 63 of the Courts Act 2003. It has been argued that section 6(a) of the Interpretation Act 1978 rendered the statutory change unnecessary, yet for whatever reason the Master of the Rolls in 1994 and the drafters of the Courts Act 2003 evidently felt that a statutory change was desirable.

As a practical matter, the question is purely academic. Even if Dame Siobhan’s title is legally ‘Lord Chief Justice,’ the Butler-Sloss precedent shows that day-to-day usage can diverge from the official usage.

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Should Ministers Be Appointed From Outside Parliament?

The Chancellor of the Duchy of Lancaster, Michael Gove, has made headlines by suggesting that ministers need not always be MPs or peers, something the Commission for Smart Government also mooted in a recent discussion paper. While outsiders can make a valuable contribution to politics, non-parliamentary ministers would represent a major constitutional innovation and they would need to be implemented with great care.

The concept of responsible government is at the heart of the British constitution. At the highest level, this means that a government can only hold office if it commands the confidence of the House of Commons. But it also means that individual ministers are accountable to Parliament for their actions. Prime Minister’s Questions is probably the best-known example of this, but other ministers answer questions from MPs and peers as well. On a more informal level, having ministers in Parliament also means that they’re accessible to backbenchers. Since ministers have to go through the Division Lobbies like everyone else, it provides an opportunity for parliamentarians to have a quick chat with them. And, in extreme situations, voters can punish ministers who are MPs by refusing to re-elect them.[1]

The Scottish Law Officers (i.e., the Lord Advocate and the Solicitor General for Scotland) are an exception to the usual convention. Despite being members of the Scottish Government (albeit ones outside the Cabinet), they are not MSPs. Section 27 of the Scotland Act 1998 allows them to participate in parliamentary debates ex officio, but they can’t vote. However, they are not typical ministers. Indeed, there has been a concerted effort to de-politicize their roles, which is why they no longer attend the Scottish Cabinet.

It’s theoretically possible to devise mechanisms of accountability for non-parliamentary ministers at Westminster. Right now, ministers have representatives in the other chamber who can answer questions on their behalf. For example, a minister who sits in the Commons will be represented in the Lords by either a junior minister or a whip.[2] The Commission for Smart Government also notes that existing Commons Standing Orders allow ministers to make statements before the Scottish, Welsh, and Northern Ireland Grand Committees even if they aren’t MPs.[3]

However, it’s debatable whether either of these options would be an adequate replacement for the status quo. Having a minister represented by junior counterparts in both chambers is less than ideal since they won’t have the same level of authority. One also wonders if ministerial questions would receive the same level of attention from MPs or the public if they were relegated to committees. These alternatives also fail to replicate the informal aspects of responsible government.

It’s also worth remembering that there’s already a mechanism to bring outside talent into the government, namely giving someone a peerage. While having a minister in the Upper House does have its disadvantages, it’s still preferable to having them outside Parliament entirely.

Bringing fresh perspectives into government is a worthy goal, but it shouldn’t undermine one of the core tenets of the British constitution.

[1] While somewhat rare, it does happen. In May 1997, no fewer than seven sitting ministers lost their bid for re-election.

[2] Similar arrangements apply to ministers who sit in the Lords, though they will always be represented by junior ministers rather than whips.

[3] Commission for Smart Government, “Ministers: Effective Political Leadership in Government,” (July 2021), 25-26. The relevant Standing Orders are SOs 93(3), 102(4), and 109(4).

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Boris Johnson And Section 18 Of The Roman Catholic Relief Act 1829

Boris Johnson married his partner Carrie Symonds at Westminster Cathedral over the weekend. According to a statement from the cathedral, he is now, in fact, a Roman Catholic. This simple statement raises awkward constitutional questions.

The Sovereign is formally responsible for making a number of appointments within the Church of England, and since the 18th century those powers have usually been exercised on the Prime Minister’s advice. While the 20th century saw the Church gain greater control over ecclesiastical appointments, Downing Street still remains part of the process.[1]

In the case of bishops, the Prime Minister’s role is limited. The Crown Nominations Commission gives Downing Street a single name and the Prime Minister invariably recommends that person to the Queen. However, that arrangement is not enshrined in law. In theory, there is nothing stopping Johnson or any other Prime Minister from rejecting the CNC’s nominee or asking them to provide him with more than one name.

Downing Street retains a more substantial role in making other appointments. For example, No. 10’s Honours and Appointments Secretariat is in charge of finding candidates to fill Crown livings (i.e., those benefices where the Queen is patron).

Johnson’s religious affiliation is an issue because section 18 of the Roman Catholic Relief Act 1829 states that:

It shall not be lawful for any person professing the Roman Catholic religion directly or indirectly to advise his Majesty, or any person or persons holding or exercising the office of guardians of the United Kingdom, or of regent of the United Kingdom, under whatever name, style, or title such office may be constituted, or the lord lieutenant of Ireland, touching or concerning the appointment to or disposal of any office or preferment in the Church of England, or in the Church of Scotland; and if any such person shall offend in the premises he shall, being thereof convicted by due course of law, be deemed guilty of a high misdemeanor, and disabled for ever from holding any office, civil or military, under the Crown.

Roman Catholics and Jews are the only non-Anglicans to be legally barred from advising the Sovereign on ecclesiastical appointments.[2] There is no such disability for Muslims, Buddhists, Atheists, or Lutherans.  

Given the reality of the modern Church/State relationship in Britain, it’s debatable whether these prohibitions are still justified. It’s hard to envision a Roman Catholic Prime Minister trying to install a Jesuit in Canterbury Cathedral. Even if they tried to do something like that, there would be other impediments to stop them.[3] And if these prohibitions are deemed necessary to protect the Church, then they should arguably be extended to all non-Anglicans, not just Roman Catholics and Jews.[4]

Until Parliament changes the law, there is an easy workaround: Johnson can simply allow another Minister of the Crown to advise the Queen on ecclesiastical appointments. The flexibility of the British constitution would be an asset here—since the Prime Minister’s role in church appointments is a matter of convention rather than law, there’s no legal obstacle to that kind of delegation. Alternatively, Parliament could explicitly authorize such an arrangement like they did for the office of Lord Chancellor.[5]

[1] While some have proposed allowing Church figures to advise the Queen on ecclesiastical appointments directly, this wouldn’t be compatible with the precept that a constitutional sovereign always acts on the advice of responsible ministers.

[2] The prohibition on Jews advising the Monarch is contained in section 4 of the Jews Relief Act 1858. It’s not clear if a secular Jew would fall under the prohibition but presumably that would be the case.

[3] For starters, the Queen would be well within her rights to refuse to accept the Prime Minister’s recommendation to appoint a Roman Catholic to a post in the Church of England since doing so would be against the law.

[4] Interestingly, while the Prime Minister is not required to be an Anglican, the Prime Minister’s Appointments Secretary is.

[5] Section 2 of the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974 allows the Queen to allow another Minister of the Crown to carry out the Lord Chancellor’s ecclesiastical functions if the office is held by a Roman Catholic.

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A Brief History Of Royal Assent By Commission

Today Lords Commissioners gave Royal Assent to legislation before proroguing Parliament. Traditionally, the Monarch signified their Assent in the presence of Parliament, but the statute 33 Henry 8 c. 21 allowed Henry VIII to grant Assent without visiting Parliament.

Although the modern short title for this Act is the Royal Assent by Commission Act 1541, it’s a bit of a misnomer.[1] Royal Assent-related provisions were only a small component of the original legislation. It also attainted Queen Catherine Howard and her accomplices and made it treason for an unchaste woman to marry the King without disclosing her sexual history.[2] On January 30, 1542, the Lord Chancellor informed the House of Lords that the King couldn’t give Assent to the bill in person “lest the repetition of so grievous a story, and the recital of so infamous a crime, in the King’s presence, might reopen a wound already closing in the royal bosom.[3]” Consequently, the bill included a clause to allow Henry to signify his Assent by signing Letters Patent, which would then be communicated to Parliament.[4]

The new method was first used to give Assent to the statute 33 Henry 8 c. 21 along with a bill regarding the trial of ‘lunatics’ for treason.[5] To modern eyes, it looks decidedly odd that the legislation authorizing Royal Assent by Letters Patent itself received Royal Assent by Letters Patent. In the words of R. W. Perceval “if Henry VIII had not been so absolute a monarch, and his Parliament so subservient, such a change could probably not have been made, at least without an enabling Act.[6]” 

Although Royal Assent by Commission is now associated with Lords Commissioners wearing parliamentary robes and cocked hats, the Henrician legislation didn’t specify how Parliament was to be informed of the King’s Assent. The only statutory requirement was that the Letters Patent be sealed with the Great Seal and bear the Royal Sign Manual.[7]

When the procedure was first used, the Lord Chancellor simply exhibited the King’s Letters Patent to the Lords and Commons.[8] On the next occasion, the King empowered the Lord High Treasurer to declare his Assent on his behalf.[9] However, Commissions for Dissolution and Prorogation customarily delegated the job to several peers,[10] and by 1547, commissions of peers were also signifying Royal Assent on the King’s behalf.[11]

Despite the new procedure, Royal Assent by the Sovereign in person remained the norm. As Perceval has shown, Assent by Commission was quite rare between 1550 and 1750,[12] though it became more common in the later decades of the 18th century. Perceval suggests that this was likely due to the increasing number of bills being passed. There could easily be 90 or 100 bills awaiting Royal Assent at the end of a session, so a practice began whereby a Royal Commission would take place a few days before prorogation to reduce the number of bills the Sovereign needed to deal with in person. For example, on May 22, 1775 the Lords Commissioners assented to 76 bills, leaving 19 for George III to deal with when he prorogued Parliament on May 26.[13]

From 1800 onward, the Monarch’s physical presence in Parliament was largely restricted to the State Opening and prorogation. Under Queen Victoria, the Sovereign’s presence at prorogation tapered off and then stopped entirely after 1854. That also marks the last occasion that a British Monarch signified the Royal Assent in person at Westminster.

For a little over a century, Royal Commissions were the only way to signify Assent. But by the mid-20th century, the practice had become increasingly controversial. Many MPs resented having to stop what they were doing and go to the Bar of the House of Lords to witness the signification of Royal Assent. The Royal Assent Act 1967 created a third method of signifying Assent: the Sovereign could sign Letters Patent and that fact could be notified to each House sitting separately by their Speakers. While the 1967 Act preserved the Monarch’s ability to grant Assent in person or by Commission,[14] the simpler procedure became the norm. Assent is now only given by Commission when Parliament is prorogued.[15]

The fact that a temporary expedient designed to spare Henry VIII’s blushes went on to become a constitutional norm is quite remarkable. As Perceval observed, it shows “[h]ow unexpectedly that Constitution grows, and what curious materials are built into its fabric![16]

[1] Parts of the Act had been repealed within a few years, but schedule 1 of the Statute Law Revision Act 1948 repealed the remaining provisions except for those relating to Royal Assent. Schedule 2 of the 1948 Act also gave the 1541 Act its modern short title. Although the Act was actually passed in 1542, its official short title places it in 1541 because, prior to 1793, Acts of Parliament took effect retroactively from the first day of the session in which they were passed.

[2] The Act can be found in The Statutes of the Realm, vol. 3, (1817; repr., London: Dawsons of Pall Mall, 1963), 857-860.

[3] “House of Lords Journal Volume 1: 30 January 1542,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 171. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/p171.

[4] Section 3 of the Act established the new procedure while section 5 declared that the use of the new procedure would be “taken and reputed good and effectual to all intents and purposes…Any custom or use to the contrary notwithstanding.”

[5] “House of Lords Journal Volume 1: 11 February 1542,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 176. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/p176.

[6] R. W. Perceval, “Henry VIII and the Origin of Royal Assent by Commission,” Parliamentary Affairs, vol. 3, issue 2, (Winter 1949), 311.

[7] See section III of the statute 33 Henry 8 c. 21.

[8] Perceval, 310. The Lords Journal of 11 February 1542 contains an account of the proceedings in Latin.

[9] “House of Lords Journal Volume 1: 29 March 1544,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 263-265. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/pp263-265

[10] For a Commission for Dissolution, see “House of Lords Journal Volume 1: 29 March 1544,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 263-265. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/pp263-265. For a Commission for Prorogation, see “House of Lords Journal Volume 1: 14 January 1540,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 127. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/p127.

[11] “House of Lords Journal Volume 1: 27 January 1547,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 289-290. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/pp289-290.

[12] Perceval, 313.

[13] Perceval, 314.

[14] While it did repeal the statute 33 Henry 8 c. 21, section 1(1)(a) allowed Royal Assent to be “pronounced in the presence of both Houses in the House of Lords in the form and manner customary before the passing of this Act.”

[15] Until 2002, the Governor General of Canada (or their deputy) had to travel to Parliament to assent to legislation. The Royal Assent Act 2002 introduced a simpler procedure using a written declaration while stipulating that the older ceremony should still be used on certain occasions.   

[16] Perceval, 315.

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Should The Dignity Of Prince Be Granted Rather Than Inherited?

Craig Prescott published an interesting piece over at the UK Constitutional Law Blog on the rules governing the titular dignity of Prince or Princess of the United Kingdom. He suggests that paradigm established by George V in 1917 is no longer fit for purpose and should be replaced by a system where the dignity is granted by the Sovereign rather than inherited.

Prescott argues that the current rules are flawed because they still reflect the principles of male-preference primogeniture.[1] For example, while the Duke of York’s daughters fall within the ambit of the 1917 Letters Patent, the Princess Royal’s children do not. Looking at the next generation, the children of Prince George and Prince Louis will be princes/princesses from birth, but Princess Charlotte’s children won’t enjoy that status even though their mother is ahead of Prince Louis in the line of succession.

To avoid situations like these, Prescott suggests that the dignity of prince/princess should be specifically conferred by the Sovereign:

This more flexible approach would allow members of the Royal Family to gain a title after enjoying their childhood and early adult lives as more regular private citizens. This would give them a better opportunity to acquire experience outside of monarchy before taking up royal duties at an appropriate point in their lives.

The problem with this approach is that, if the Monarch has to pick and choose who gets to be a prince or princess, there will inevitably be controversy when A, C, and E get the dignity but B and D don’t. The current rules aren’t exactly controversy-free, but at least the guideposts are clear. A system where princely status depends entirely on the whims of the Sovereign (and, by extension, the Government) seems like a recipe for never-ending drama. There might also be a temptation to award the dignity to members of the Royal Family who happen to have captured the public’s fancy at the moment while glossing over their less-popular relatives.

It’s also debatable whether this change would actually allow members of the Royal Family to live as “regular private citizens.” When the Earl of Wessex attempted to have a career in the media in the 90s and early 00s, he was accused of cashing in on his royal status. Similarly, the Countess of Wessex’s attempt to maintain her career following their marriage had to be abandoned after a series of scandals, including one where she was the victim of a sting carried out by a News of the World reporter posing as an Arab sheikh. Even if people are no longer HRHs from birth, they will still be part of the Royal Family, and the need to avoid controversy and conflicts of interest is going to make it difficult for them to live truly private lives. While one could argue that the conventions governing the lives of the Royal Family need to be reevaluated, that’s a complex issue that goes far beyond the question of styles and titles.

A simpler solution might be for all of the Sovereign’s children to have the dignity of prince or princess from birth, but beyond that it would be restricted to the descendants of the heir apparent, regardless of their gender.[2] Limiting the dignity to those most likely to inherit the throne would keep the overall number of princes and princesses down while avoiding the sort of gender-based inequalities that we see now. It would also comport with the precedent set by the Succession to the Crown Act 2013 whereby only the first six people in line for the throne need to obtain the Monarch’s consent before marrying.

At the same time, there should be a formal exit mechanism for those people who, for whatever reason, feel that a life of royal service isn’t for them. Upon triggering that mechanism, the person would be removed from the line of succession[3] and forfeit their royal titles[4] without the need for bespoke legislation.[5] Right now, the Duke of Sussex is in an awkward position: despite stepping away from the life of a working member of the Royal Family, he is still a prince and an HRH[6] and he is still eligible to succeed to the throne. While that’s unlikely to happen in his case, it would be a more pressing issue if someone more senior ever decided to step away from royal life.

However the dignity of prince is handled in the future, Prescott is right that the rules should be readily accessible. At the moment, it’s difficult for the general public to discover how the system works. The Gazettes do contain notices setting out the terms of the relevant Letters Patent (see here and here), but a layperson isn’t necessarily going to know to look for them. There’s no reason why this information couldn’t be consolidated and published on the Monarchy’s website.  

Unless the conventions surrounding the Royal Family change, it seems prudent for the dignity of prince/princess to remain one that is held from birth. Both the individual members of ‘The Firm’ and the institution of the Monarchy need an element of certainty, but royal life shouldn’t be a prison for those who truly wish to leave it behind.

[1] Under the current rules, the dignity of prince is held by: the Sovereign’s children, the children of the Sovereign’s sons, and the children of the eldest son of the Prince of Wales.

[2] While the Sovereign’s eldest son has customarily been created Prince of Wales for centuries, the Sovereign’s eldest daughter doesn’t receive any special title. This is because, until the passage of the Succession to the Crown Act 2013, a woman was considered an heiress presumptive rather than an heiress apparent since the birth of a younger brother would bump her down the line of succession. Although male-preference primogeniture is gone, it’s not yet clear whether an heiress apparent would become Princess of Wales.  

[3] The issue of an ex-royal’s children would be tricky. While not a perfect solution, perhaps children born prior to the renunciation could keep their place in the line of succession while children born afterward would have no claim to the throne.

[4] While it’s hard to see why an ex-royal should keep the style of HRH or the dignity of prince, I’m agnostic on the question of royal dukedoms. After all, there are dukes outside the Royal Family.  

[5] Legislation would, of course, be necessary to create this mechanism, and it would only be possible with the unanimous agreement of the other Commonwealth realms.

[6] He and his wife have, however, voluntarily stopped using their royal titles.

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Some Thoughts On The Sussexes’ Interview With Oprah

Unless you’ve been living under a rock, you’ve probably heard that the Duke and Duchess of Sussex sat down for an interview with Oprah that was broadcast yesterday. Much of the media’s attention has focused on the Duke’s allegation that an unnamed member of the Royal Family[1] made racist remarks, but the Duchess’s comments about Archie’s lack of a title and her admission that she didn’t research the Royal Family ahead of her marriage deserve some comment.  

It’s not surprising that the Sussexes’s children won’t be princes or princesses. Under George V’s Letters Patent of November 30, 1917 and the Queen’s Letters Patent of December 31, 2012, the titular dignity of prince/princess and the style of ‘Royal Highness’ are restricted to:

  • the Sovereign’s children;
  • the children of the Sovereign’s sons; and
  • the children of the eldest son of the Prince of Wales.[2]

The Queen could have changed the rules to allow the children of the Duke and Duchess to be princes/princesses and HRHs, but that would go against the trend of reducing the number of people with those titles. Before 1917, a far wider group of people held princely status, which is why there were Germans who were technically ‘Princes of the United Kingdom of Great Britain and Ireland’ (e.g., the Duke of Brunswick who lost his princely title as a result of the Titles Deprivation Act 1917). It’s worth remembering that the Sussexes’ children are unlikely to inherit the throne. At the moment, Archie Mountbatten-Windsor is seventh in the line of succession, and he’s only going to descend further. The Duchess of Sussex seems to have wanted him to enjoy a princely title because it would enable him to receive security, but it’s fair to ask whether the taxpayer should foot the bill to protect someone who isn’t at the top of the line of succession. The Duke of York’s daughters lost their taxpayer-funded security for that very reason. By the same token, it’s hard to see why the Duke and Duchess should receive taxpayer-funded security when they no longer wish to be working members of the Royal Family.[3]  

The Duchess’s apparent confusion over the title of prince is easier to understand when you realize that she didn’t research the Royal Family ahead of time. It was a startling admission, and one wonders if more foreknowledge wouldn’t have made things at least a little bit less stressful for her. Perhaps she assumed that her experience as a celebrity would equip her for life in the Royal Family, but Americans have a hard time understanding the Monarchy because we don’t really have anything like it over here.

Despite how the Royal Family is portrayed in the US, they’re not mere celebrities. Their life comes with all sorts of perks, but they must also follow a myriad of rules, both explicit and implicit. It would be hard for any outsider to adjust to, but it would be particularly difficult for an American celebrity accustomed to doing or saying whatever she pleases. And if you don’t understand the rationale behind the rules, they’ll seem all the more burdensome.

Current members of the Royal Family grew up with these rules, so it must be hard for them to grasp an outsider’s confusion. But I suspect that the following generations will bring change to the institution. The Monarchy often seems timeless, but it’s more protean than people realize. Victoria would probably find the court of Elizabeth II shockingly informal. In Victoria’s day, she was accompanied by a Lord and a Groom in Waiting at Privy Councils, and Ministers of the Crown were in attendance throughout her stay at Balmoral. Those customs have now withered away.[4] As the more byzantine rules continue to disappear, The Firm will seem less and less alien to newcomers.

There are lessons to be learned from the Sussexes’ predicament. Perhaps there needs to be some form of formal onboarding/premarital counseling for new members of the Royal Family, especially if they come from a vastly different background.[5] It’s also reasonable to ask whether the Palace needs to embrace a more flexible approach to royal life. If someone truly doesn’t want to be a working member of the Royal Family for whatever reason, it’s better for everyone if they can formally leave The Firm with dignity. Right now, the Duke and Duchess are in an awkward position. Despite stepping back as working royals, they still have their titles, and the Duke and Archie remain in the line of succession. There’s no easy solution to this problem,[6] so it may be time to let people voluntarily sever those ties.

[1] The Duke refused to name the individual, though he apparently said it wasn’t the Queen or the Duke of Edinburgh.

[2] Under George V’s Letters Patent, those honorifics were restricted to the eldest son of the Prince of Wales’ eldest son, but the Queen’s Letters Patent broadened it to include all the eldest son’s children.

[3] Whether the Royal Family should pay for their security is a separate matter, but similar principles apply.

[4] Though the Prime Minister does of course spend a weekend at Balmoral.

[5] Admittedly, I struggle to think of what this might look like. Simply tossing a copy of Bagehot at them won’t be enough!

[6] While the Queen could theoretically remove the titular dignity of prince and the style of ‘Royal Highness,’ only an Act of Parliament could remove the Dukedom of Sussex. Removing the Duke and his children from the line of succession would require the unanimous agreement of all 16 Commonwealth Realms.

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The Curious Legal Legacy Of The First Duke Of Sussex

On April 4, 1793, Prince Augustus Frederick (later the first Duke of Sussex) secretly married Lady Augusta Murray at a hotel in Rome. Although it was a love match, their nuptials would ignite a legal firestorm that gave rise to a legal legacy that endures to this day.

Born in 1773, Prince Augustus Frederick was the ninth child of George III and Charlotte of Mecklenburg-Strelitz. Asthma prevented him from embarking on a military career like his brothers, so in 1786 he went to study at the University of Göttingen in Germany. He remained in Europe for several years, and in late 1792 he traveled to Italy for his health.

While in Rome, Prince Augustus met the Countess of Dunmore and her family, and he developed a special bond with one of the Countess’ daughters, Lady Augusta Murray. The two quickly fell in love, and after four months of courtship, the Prince proposed to Lady Augusta in secret. At first, she refused, citing the difficulties that their marriage would cause the Prince, but he continued to profess his love for her.[1] She had a change of heart, and on March 21, 1793, the two lovers signed a contract in which they solemnly promised to marry one another.[2]

But the couple faced a difficult path to the altar. The couple were Protestants, yet they were trying to marry in the capital of the Papal States. Local law made no clear provision for the marriage of Protestants, and Catholic priests could not officiate at Protestant marriages, either.

Roman law wasn’t their only problem. As a descendent of George II, Prince Augustus was subject to the provisions of the Royal Marriages Act 1772, which meant he needed to obtain his father’s consent before marrying. If he ignored the Act, the clergyman who officiated at his wedding (and, in theory, anyone else in attendance) would be liable to imprisonment and the loss of all their property.[3]

Given the legal situation, the Prince believed that his best bet was to be married by a random Protestant clergyman. Both he and Lady Augusta scoured Rome for a suitable candidate, checking foreign seminaries and even making inquiries among the British expatriate community in Livorno.[4]

Unable to find a stranger willing to officiate, the Prince turned to the Rev. William Gunn. While Gunn had the advantage of being an Anglican priest, he was also personally acquainted with the Prince, and he knew the trouble he would be getting into if he married the couple. Not surprisingly, Gunn tried to dissuade the Prince from going ahead with the marriage, and when his words failed to sway the Prince, Gunn stood his ground and refused to take part in the ceremony.[5]

But the lovers would not be thwarted. They decided that their best hope of getting Gunn on board was to take him by surprise and, in the words of the State Trials reporter, “overcome his scruples by unexpected importunity.[6]” On April 4, Lady Augusta asked Gunn to call on her at her hotel; when he arrived, the Prince burst in and with “entreaties of the most urgent kind,” begged the priest to reconsider his refusal.[7] Gunn’s resolve waivered, and after securing a solemn promise from the couple to never divulge his name, he married them on the spot without any witnesses present.[8]   

Upon returning to the United Kingdom, the couple went through a second marriage ceremony at the parish church of St. George, Hanover Square. According to the Prince, this was done “for greater security, and not from an apprehension of the first [wedding] being insufficient.[9]

It was a perilous move. The simplest way for them to marry would have been to obtain a marriage license from an archdeacon, bishop, or archbishop of the Church of England,[10] but aside from the fact that the Prince had violated the Royal Marriages Act, he was also too young to obtain a license without parental consent under normal marriage law.[11] The only other option was to marry after the reading of banns. Under this procedure, a couple could wed once their parish priest had given public notice of their plans on three separate Sundays.[12] But the banns would have to include the couple’s name, which had the potential to jeopardize the whole undertaking. The couple’s solution was to use their true names but omit their titles; so as far as the parishioners of St. George’s were concerned, it was simply the marriage of Augustus Frederick and Augusta Murray. Once again, fate seemed to be on the couple’s side, and they married for a second time on December 4, 1793.

Their luck soon ran out. The King and the Government were not amused when they learned of the couple’s union.[13] The Privy Council launched an inquiry into the matter, but the proceedings soon took on an air of absurdity.[14] The Lord Chancellor tried to show that the Prince had been taken in by a scheming older woman, but when questioned about her daughter’s age, the Countess of Dunmore professed ignorance. The clergy of St. George’s were hauled before the Council as well. The Council wanted to know why the clergymen didn’t notice the Prince’s name on the banns, but they were told that there were several men called ‘Augustus Frederick’ within the parish. The Council proceeded to berate the clergy and officials of the church for failing to confirm that the couple were truly residents of the parish (without a marriage license, you could only marry in your local parish church). The clergy insisted that they had done their job perfectly well, which spurred the Lord Chancellor to demand that the Attorney General prosecute everyone involved with the “abominable marriage.[15]

While no criminal proceedings were ever brought, there marriage itself was soon under attack. In January 1794, the King’s Proctor[16] sought to have the marriage annulled in the Consistory Court of the Diocese of London.[17] The matter was transferred to the Archbishop of Canterbury’s Court of Arches,[18] which nullified the marriage on July 14, 1794.[19]   

Despite no longer being husband and wife, the Prince continued to live with Lady Augusta for many years. They had two children together: Augustus Frederick d’Este and Augusta Emma d’Este. They ultimately separated in 1801, and the King bestowed the titles of Duke of Sussex, Earl of Inverness, and Baron Arklow on his wayward son. In 1831, a year after Lady Augusta’s death, the Duke married again, this time to Lady Cecilia Letitia Buggin. This marriage also contravened the Royal Marriages Act, but this time the authorities made no effort to annul it, and the couple was left in peace.[20]

Following the Duke’s death in 1843, Augustus Frederick d’Este attempted to claim the Dukedom of Sussex. As is typical in peerage cases, Queen Victoria referred the matter to the House of Lords on August 22, 1843, and the House in turn referred the matter to their Committee for Privileges, assisted by senior judges.[21] At issue was whether or not the marriage of the Duke of Sussex and Lady Augusta Murray was valid, despite the fact it contravened the Royal Marriages Act.

The Privileges Committee met to consider the matter starting on June 7, 1844. In order to establish the marriage’s fundamental validity, d’Este’s counsel argued that the Prince had taken the only course available to him since Roman Catholic priests wouldn’t marry Protestants and local laws only recognized marriages conducted by the Roman Catholic Church. They compared it to a foreign marriage made at a place where no other form of marriage was available. Alternatively, they suggested it should be accepted as a contract of present relation “as if made in a desert island where no laws exist, and where the solemn and declared intentions of the parties must from the necessity of the case constitute the marriage.[22]

D’Este’s lawyers also argued that the Royal Marriages Act only applied to marriages contracted within British territories. They noted that many descendants of George II lived abroad, and it would be absurd to expect them to obtain the consent of the British monarch for their marriages. And because the Act created a crime as well as an incapacity, they contended that it needed to be construed strictly in line with other penal statutes. “Is the offense created by the Royal Marriages Act to receive a wider construction than the crime of treason?” asked Sir Thomas Wilde.[23] He also highlighted the fact that there were a number of practical impediments preventing the Act from being enforced broadly. For example, although the Act required the Sovereign’s Consent to the marriage to be set out in the marriage license and the register entry, there was no way to do that in the case of a marriage contracted overseas.

The Committee then called for evidence proving the marriage. D’Este’s lawyers attempted to introduce the Duke’s will as evidence, but the Committee declined to admit it since it was written after the Court of Arches’ judgment nullifying the marriage.[24] Next, the lawyers introduced a declaration by the Rev. William Gunn. Gunn had been reluctant to testify in previous proceedings because he feared exposing himself to the penalties of the Royal Marriages Act, which, as the Lord Chancellor, Lord Lyndhurst, observed, cut against d’Este’s argument that the marriage didn’t actually violate the law.[25] The fact that Gunn was dead by that point also complicated matters.[26] Ultimately, the Committee declined to admit his declaration.

Next, the Rt. Rev. Nicholas Wiseman, a Roman Catholic bishop and Coadjutor to the Vicar Apostolic of the Central District[27] testified regarding Roman Catholic marriage law. Although their canon law made no explicit provision for the marriages of Protestants, in his view, the Duke of Sussex’s marriage would be valid.[28] A debate ensued about the best method of answering questions about foreign law. Lord Campbell argued that texts were preferable to witnesses, who might be mistaken or biased. However, Lord Brougham observed that a text alone wasn’t sufficient since English courts wouldn’t necessarily be equipped to interpret a foreign law book. The Attorney General intervened to ask Wiseman to clarify his credentials, and Wiseman admitted that he hadn’t served on any Catholic tribunals that dealt with marriage law. However, he had studied canon law, albeit informally, and as a bishop, he was responsible for arbitrating such questions. The Attorney General still objected to his evidence on the grounds that he wasn’t a Roman Catholic canon lawyer, but Lord Lyndhurst argued that Wiseman’s office gave him sufficient authority, and the Committee agreed.[29] D’Este’s counsel also called a Jesuit to give evidence, but while he had gone through formal training in canon law, the Committee deemed him ineligible since he ultimately had no more knowledge of the law than any other parish priest.[30]

A few days after d’Este’s lawyers summed up his case, the judges gave their opinion to the Committee. Sir Nicholas Tindal, Chief Justice of the Court of Common Pleas, spoke on behalf of his brethren. He dismissed the central contention of d’Este’s counsel, observing that:

[I]t is scarcely supposable that the Legislature should have provided the minute and laborious machinery of the second section [of the Royal Marriages Act]; that it should have interposed such checks against a marriage without [royal] consent, and at the same time have rendered such a marriage ultimately valid in one given set of circumstances, if the party himself who is the subject of such legislation, by an easy journey, or a voyage of a few hours, could render all these provisions useless, and set the statute at defiance by contracting a marriage abroad with whomever he thought proper.[31]

He also noted that the Sovereign’s consent alone was sufficient to validate a marriage under the Act. The provisions about entering the consent onto the license and the register were directory and not essential.[32] And although they agreed that the penal clause in the Act was defective, that didn’t invalidate its other provisions. Consequently, they held that d’Este hadn’t succeeded in making his claim.

Lord Lyndhurst consulted with the other members of the Committee and then proposed a resolution dismissing d’Este’s claim. In the ensuing debate, Lord Campbell observed that, even if the marriage was valid under the law of Rome, the plain words of the Royal Marriages Act was an insurmountable bar, and the other members expressed similar sentiments. The resolution dismissing d’Este’s claim was adopted, affirmed by the House, and then reported to the Queen.

D’Este died a few years later. Because he never had children, the peerages he claimed would likely have gone extinct anyway. The Sussex Peerage Case, on the other hand, would continue to shape the law for years to come, and it continues to be cited today.[33] D’Este may have failed in his quest to become Duke of Sussex, but he nevertheless gained a place in the history books.   

[1] The Prince described their courtship in a letter to Lord Erskine, quoted in John E. P. Wallis, ed., Reports of State Trials, vol. 6 (London: Her Majesty’s Stationery Office, 1894), 81 (hereafter cited as State Trials).

[2] The contract is printed in State Trials, 81-82.

[3] Section III of the Royal Marriages Act 1772.

[4] State Trials, 82.

[5] State Trials, 83.

[6] State Trials, 83.

[7] State Trials, 83.

[8] In her prayer book, Lady Augusta recorded that the marriage was conducted by “Rev. Mr.——.”

[9] State Trials, 83.

[10] Civil marriage did not exist yet.

[11] The Prince was twenty, and the age of majority at the time was twenty-one.

[12] This way, people could raise any objections to the wedding that they might have.

[13] Prince Augustus Frederick wasn’t the first of George III’s sons to defy the Royal Marriages Act. In 1785, the Prince of Wales secretly married Maria Fitzherbert. Because their marriage was invalid under British law, the Prince wasn’t disqualified from succeeding to the Throne under the Act of Settlement 1701 despite the fact that he’d married a Roman Catholic. 

[14] An account of the Privy Council’s proceedings can be found in Horace Twiss, The Public and Private Life of Lord Chancellor Eldon, vol. 1 (London: John Murray, 1844), 234-235.

[15] The Attorney General, the future Lord Eldon, replied that it was a difficult business to bring a prosecution without forcing people to incriminate themselves.

[16] The King’s Proctor was one of the Crown’s Law Officers in the ecclesiastical courts.

[17] At that time, the ecclesiastical courts had exclusive jurisdiction over most matrimonial cases, though true divorce could only be obtained through a private Act of Parliament.

[18] Normally an appellate tribunal, the Arches Court could hear assume original jurisdiction if requested to do so by an inferior court.

[19] Unfortunately, the case does not appear to have been reported in full. However, a partial report can be found in Sir Robert Phillimore, The Ecclesiastical Law of the Church of England, vol. 1 (London: Henry Sweet, 1873), 749-750.

[20] The Duke’s wife was never recognized as Duchess of Sussex, but in 1840 Queen Victoria created her Duchess of Inverness in her own right.

[21] By longstanding custom, senior judges receive writs of assistance (also known as writs of attendance) obliging them to provide legal assistance to the House of Lords when necessary. Such writs are still issued today, though the judges’ attendance in Parliament is now confined to the State Opening.  

[22] State Trials, 86.

[23] State Trials, 88.

[24] State Trials, 90-92.

[25] State Trials, 93.

[26] As Lord Campbell noted, “[b]y the Law of England, the declarations of deceased persons are generally not admissible unless they are against the pecuniary interest of the party making them.” State Trials, 97.

[27] The Roman Catholic hierarchy hadn’t yet been re-established in England in 1844.

[28] State Trials, 98.

[29] State Trials, 98-103.

[30] State Trials, 104.

[31] State Trials, 110.

[32] State Trials, 111-112.

[33] The most recent citation I could find comes from Scipion Active Trading Fund v Vallis Group Ltd [2020] EWHC 1451.

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The Queen And Ministerial Travel

A while back, I stumbled upon something interesting in a collection of documents from John Major’s premiership. It’s a brief letter from Roderic Lyne, Major’s Private Secretary, to Sir Robert Fellowes, the Queen’s Private Secretary, seeking permission for Major to be absent from the UK in order to visit the USA.

There is a longstanding custom in the UK that Cabinet ministers must seek the Sovereign’s permission before leaving the country,[1] though there are no legal penalties for failing to do so. In 1883, William Gladstone took a cruise around the Hebrides that morphed into a visit to Scandinavia, and Queen Victoria took him to task for leaving the country without her permission. But other than Victoria’s ire (which he was used to by that point!), Gladstone wasn’t punished for his actions.[2]  

Although there are no penalties for failing to obtain permission, it seems to be something that’s taken seriously. When a European Council meeting threatened to keep Major out of the UK beyond the time for which he’d received the Queen’s permission, Downing Street contacted the Palace to obtain an extension.[3]        

As far as I’m aware, this convention is still in force today, though it’s hard to say with any certainty. Prior to 2007, the Ministerial Code and its predecessor, Questions of Procedure for Ministers, explicitly mentioned the need to seek the Queen’s permission for foreign travel.

This is taken from the 2005 edition of the Ministerial Code, which is the last one to explicitly reference the need to obtain the Queen’s permission for travel.

That language disappears from the 2007 Code onward, but that isn’t necessarily proof that the custom has ended. The nature of the Code itself has changed. It’s now more streamlined with a focus on information that’s relevant to all ministers. The section on ministerial travel is far more concise than it used to be, and language about seeking the Queen’s permission isn’t the only thing that has disappeared. Recent Codes don’t say anything about Cabinet ministers needing to seek the Prime Minister’s permission for foreign travel, yet that is still very much the case even today.[4]

This is the equivalent section of the 2007 Code. Subsequent editions use this more concise language.

It’s also not clear why the custom would have been abolished. Customs are abandoned from time to time, but there’s usually a practical reason for doing so. For example, King George VI abolished the practice of having the Home Secretary attend royal births once he realized that representatives of the Dominions would need to summoned as well, raising the prospect of seven government officials sitting outside the birthing room.[5] Requiring a civil servant to dash off a brief letter to the Palace seems unlikely to cause enough inconvenience that the Government would insist on abrogating the custom, and it’s hard to imagine the Palace pushing to end it either. So, in the absence of clear evidence to the contrary, it seems safe to assume that the convention remains in force today.       

[1] Junior ministers aren’t required to do this, however.

[2] Roy Jenkins, Gladstone: A Biography (New York: Random House Trade Paperbacks, 2002), 487.

[3] Rodney Brazier, Ministers of the Crown (Oxford: Clarendon Press, 1997), 101 n. 95.

[4] It might also be worth remembering that, if Major’s visit to America is any indication, responsibility for obtaining the Queen’s permission falls to ministers’ staff rather than ministers themselves. This could just be another routine thing that civil servants handle when arranging for ministerial travel.    

[5] Jane Dismore, Princess: The Early Life of Queen Elizabeth II, (Guilford: The Rowan & Littlefield Publishing Group, Inc., 2018), 245.

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