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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Do Royal Spouses Have To Be Anglicans?

The news of Prince Harry’s forthcoming nuptials led a reader to ask the following question:

I saw that Meghan Markle is going to be baptized and confirmed in the Church of England before she marries Prince Harry. Is that a legal requirement? Does everyone who marries into the Royal Family have to become an Anglican if they aren’t one already?

As the law stands now, members of the Royal Family are free to marry people of any faith or none at all. It wasn’t always this way, though. Following the Glorious Revolution of 1688, Parliament took steps to keep Roman Catholics off the throne. With that goal in mind, the Bill of Rights 1688 and the Act of Settlement 1701 declared that only Protestants could inherit the crown,[1] and marriage to a Catholic would automatically remove a person from the line of succession (the marriage itself would be valid, however).

Despite this prohibition, members of the Royal Family occasionally married Catholics, though none of these individuals had any realistic chance of inheriting the crown. For example, Prince Michael of Kent was removed from the list of succession upon his marriage to the Catholic Baroness Marie Christine von Reibnitz, but he was fifteenth in line for the throne at the time (however, their children were raised in the Church of England, so they were never removed from the line of succession). Interestingly, the prohibition was only applied to people who were Catholics at the time of their marriage. Prince Michael’s sister-in-law, the Duchess of Kent, converted to Catholicism many years after her marriage to the Duke of Kent, so he never lost his succession rights.

Since the coming into force of the Succession to the Crown Act 2013, marriage to a Catholic no longer bars a person from inheriting the crown, and people who lost their rights of succession under the former prohibition have had them restored. However, the monarch must still be a Protestant due to their role as Supreme Governor of the Church of England.

Prince Harry could still marry Meghan Markle even if she were never baptized and confirmed. While many Christian denominations insist that one or both parties to a marriage be baptized, the Church of England does not. Generally speaking, all heterosexual couples[2] have a legal right to marry in their local parish church, provided their marriage would comply with the relevant statutory provisions. It doesn’t matter if they are Anglicans or even Christians. That being said, Meghan Markle is marrying the brother of the future Supreme Governor of the Church of England, and courtiers and ecclesiastics probably figured it would be a bit awkward if she lacked any religious affiliation.

NOTES

[1] They did not have to be Anglicans, however. For example, George I was Lutheran.

[2] Despite the passage of the Marriage (Same Sex Couples) Act 2013, same-sex couples cannot marry in the Church of England.

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What Is The Duchy Of Lancaster?

The Duchy of Lancaster made headlines recently after secret documents revealed that it had invested about £10 million of the Queen’s private money in offshore funds. But what exactly is the Duchy of Lancaster?

The Duchy is a private estate intended to fund the Sovereign’s Privy Purse (i.e., their private income). It is separate from the Sovereign Grant, which pays for the Monarchy’s operating costs. According to the Duchy’s website, the core of the Duchy consists of over 18,000 hectares of land throughout England and Wales. In addition, it owns commercial and residential properties as well as financial investments.

The Duchy of Lancaster was founded in 1351 when Edward III gave Henry Grosmont the title of ‘Duke of Lancaster.’ Edward also made Lancaster a ‘county palatine,’ giving the new duke special powers over his domain. While a county palatine is not an independent state, its ruler enjoys considerable autonomy.[1] For example, the Duke had the power to appoint the Duchy’s judges, as well as its sheriffs, justices of the peace, and other key officials. Initially, these palatine powers were limited to the first Duke of Lancaster, but when the Duchy passed to one of Edward III’s sons, John of Gaunt, he convinced his father to make the grant permanent.

In 1399, John’s son, Henry Bolingbroke, ascended the throne as Henry IV. He declared that the Duchy of Lancaster should descend through Henry’s male heirs, though it was to be held separately from the main Crown Estate. Because of this stipulation, the Duchy was not affected when George III transferred the proceeds from the Crown Estate to the Government in exchange for a parliamentary allowance, and it remains the Sovereign’s personal property to this day.

The Monarch continues to enjoy several residual palatine powers as Duke of Lancaster, though nowadays, the distinction is largely one of form rather than substance.[2] Two key examples of this are the appointment of High Sheriffs and the exercise of ecclesiastical patronage. While the Queen-in-Council appoints High Sheriffs for the rest of England and Wales,[3] the Queen appoints the Duchy’s High Sheriffs during a private audience with the Chancellor of the Duchy of Lancaster.[4] Similarly, the Queen exercises her ecclesiastical patronage within the Duchy on the advice of the Chancellor rather than the Prime Minister or the Lord Chancellor.

In addition to these ceremonial rights, the Sovereign enjoys a practical benefit in the form of bona vacantia. In the United Kingdom, the Crown receives the assets of people who die intestate and without heirs. For most of the country, the government receives these assets on behalf of the Monarch, but within the Duchy of Lancaster, they go to the Queen directly. However, she gives these proceeds to charity instead of keeping them for herself.

The Queen is not directly involved in the administration of the Duchy. The Chancellor of the Duchy of Lancaster has overall responsibility for its affairs, though in practice, many functions are delegated to bodies such as the Duchy Council. Even though the Duchy is the Sovereign’s personal property, the Chancellor is a Cabinet minister, although the low workload associated with the position means that the occupant is basically a minister without portfolio.[5] The Chancellor’s ambiguous position is reflected in the fact that they are sworn in at a private audience with the Queen rather than at a Privy Council meeting like other Cabinet ministers. Day-to-day management of the Duchy is handled by the Clerk of the Duchy Council (who is also the Duchy’s CEO), the Chairman of the Duchy Council, and the Chief Financial Officer. They in turn are overseen by the Duchy Council, which is analogous to a corporate board of directors.

Although the Duchy is technically a private estate, it is regulated by Parliament. While the Crown Lands Act 1702 strictly prohibited the alienation of Duchy assets, this stricture has been relaxed by subsequent enactments. The Duchy can now sell land if it’s not deemed convenient to hold it any longer,[6] and the Duchy can lease land as well.[7] Furthermore, the Duchy of Cornwall and Duchy of Lancaster (Accounts) Act 1838 requires the Duchy to file annual reports with the Treasury, and the Treasury must lay these reports before both Houses of Parliament.

While there is nothing in the Paradise Papers to suggest that the Duchy has done anything illegal, the Duchy needs to rethink the way it manages the Queen’s assets. Her financial advisers have shown a lamentable lack of judgment. Offshore investments like these aren’t illegal, but they are controversial, and they present special problems for someone in the Queen’s position. Her financial advisers need to be extra cautious and ensure that there is nothing even vaguely scandalous about her financial dealings. Hopefully, these disclosures will serve as a wakeup call, and they will serve her better in the future.

NOTES

[1] Other examples of counties palatine in England are the Duchy of Cornwall and County Durham.

[2] Queen Victoria styled herself ‘Duke of Lancaster’ rather than ‘Duchess of Lancaster’ on the grounds that a duchess was merely the consort of a duke. While this was not an official decision, the precedent has held.

[3] The High Sheriff of Cornwall is another special case. Since the Duchy of Cornwall is also a county palatine, its Duke (i.e., the Prince of Wales) appoints the sheriff.

[4] Generally, this audience takes place immediately after the Privy Council meeting where the rest of the High Sheriffs were appointed.

[5] Nowadays, the Chancellor is typically given responsibility for the Cabinet Office, though the office is sometimes given to the Leader of the House of Commons or the Leader of the House of Lords.

[6] Duchy of Lancaster Lands Act 1855.

[7] Duchy of Lancaster Act 1988.

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The Mirror’s Article About Peers’ Expenses Has A Problem

A recent article in the Daily Mirror claims that members of the House of Lords are effectively bilking the taxpayer. The paper highlighted seventeen peers who have received over £400,000 in expenses between them despite failing to speak, sit on a committee or submit a written question. It’s a dramatic claim, but it’s not entirely truthful. In their rush to excoriate the peers, the Mirror has overlooked some crucial details.

Thanks to Public Whip, it’s easy to see a peer’s voting record. It shows that, while the peers named in the article may not be speaking in the chamber, they are voting. For example, the Mirror slammed Lord Kirkhill for receiving the most expense money, but a glance at his record shows that he has voted numerous times. It’s a similar story for the other peers named in the article. Some participate more than others, but they aren’t totally idle.

Attempting to quantify a peer’s worth as a parliamentarian using attendance-related metrics is inherently problematic. For one thing, peers wishing to participate in a debate are expected to stay for “the start, end and greater part of that debate.[1]” That’s bound to limit participation since you can only take part if you can spare a sizable chunk of your day. The extreme size of the House can also be a barrier to participation. This is especially noticeable at Question Time–there just isn’t enough time in the parliamentary day to allow everyone to speak. While voting presents fewer problems for peers, it would be unwise to get too obsessed over how many times each peer goes through the division lobbies. The last thing the House needs is more lobby fodder.

While the Mirror’s article is misleading, that doesn’t mean that there aren’t problems with the Lords expenses regime. Analysis by the Electoral Reform Society has shown that a small subset of peers have claimed expenses even though they haven’t spoken or voted. This isn’t against the rules—any peer who shows up at the Palace of Westminster can claim their £300 attendance allowance—but it’s an ethically dubious thing to do nonetheless. Peers who claim the allowance while spending mere minutes on the parliamentary estate are a blight on the whole House.

But while cases like these get the public’s choler up, finding a solution to the problem is far from straightforward. Without the allowance, only wealthy peers would be able to attend the House. It could be made subject to certain conditions: for example, a peer might have to be present in the Palace for a certain number of hours before they could claim the allowance. But while that might eliminate some of the more egregious cases of allowance abuse, it’s not hard to see how the system could still be gamed. After all, someone could just show up, take a seat somewhere in the Palace, and play games on their phone for however many hours it takes to qualify for their allowance. Insisting that they be physically present in the Lords’ chamber is unlikely to work–it simply isn’t big enough to seat everyone. The House would also have to contend with the fact that not all peers can afford to be full-time legislators since many of them have careers outside Parliament. A revising chamber needs experts, and if you force them to choose between their career and Parliament, the House could end up losing the members it needs the most.

The Electoral Reform Society argues that the answer to all this is to elect the Lords, but that would open up a different can of worms. And as MPs have shown, elected representatives aren’t always icons of probity when it comes to their expenses, either.

Churchill once said that democracy is the worst form of government except for all the others. I think something similar could be said about Lords expenses. Maybe some clever person will be able to think up a workable solution, but I wouldn’t hold my breath.

NOTE

[1] See section 4.32 of the Companion to the Standing Orders of the House of Lords. At the very least, peers are expected to attend the opening speeches, the speeches before and after their own, and the ‘winding-up’ speeches at the end of the debate.

 

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Some Notions About Motions

The Daily Telegraph’s Gordon Rayner included a real howler in his article about the DUP’s rebellion in the Commons last week:

“Because the motions have been tabled by the Opposition they are not legally binding…”

Rayner was referring to the fact that the motions were part of an Opposition Day, which meant Jeremy Corbyn got to set the agenda for the debate. While it’s true that Corbyn’s motions weren’t legally binding, it’s not because he tabled them. Most motions are like greeting cards—they express sentiment without actually doing anything.

Corbyn’s pay cap motion “call[ed] on the Government to end the public sector pay cap in the NHS and give NHS workers a fair pay rise.” Ultimately, this is simply advice, and ministers are free to ignore it. The tuition-fees motion, on the other hand, looked like something that would bind the Government since it purported to revoke the Higher Education (Higher Amount) (England) Regulations 2016 and the Higher Education (Basic Amount) (England) Regulations 2016.

Statutory instruments made under the Higher Education Act 2004 are indeed subject to ‘negative procedure,’ which means MPs can strike them down. But section 5 of the Statutory Instruments Act 1946 states that these votes must take place within 40 days of the instrument being laid before Parliament, and the instruments Corbyn wants to revoke were both laid before Parliament in December of last year. That’s not all: a negative procedure motion must take the form of an address to the Queen asking her to annul the instrument(s) in question, but Corbyn’s motion simply declared that the instruments were revoked. Since it didn’t comply with the provisions of the Statutory Instruments Act, the tuition-fee motion is also nothing more than a statement of opinion. Labour has threatened to sue the Government if they don’t revoke the statutory instruments increasing tuition fees, but it’s hard to see how they could possibly prevail in court, so they’d be better off saving their money.

While these motions aren’t legally binding, they still represent a headache for the Government. Ministers allowed them to pass on a voice vote in order to avoid a potentially embarrassing rebellion by the DUP. This stratagem may have allowed them to save face in the short-term, but it also highlights the inherent weakness of the Government’s position and lends credence to the notion that Theresa May is in office but not in power. And in the long run, that is far more dangerous than a defeat on policy.

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Fact-Checking Today I Found Out’s Video On The Queen’s Powers

Some of you may be familiar with Today I Found Out, a popular YouTube channel that makes explanatory videos on a wide range of topics. Today’s video featured a subject near and dear to my heart: the Queen’s powers. I’ve generally been impressed with their work, so I had high hopes for the video. But as it turned out, my optimism was misplaced. While the video got a lot of things right, it made some truly egregious mistakes.

The biggest howler concerns the power to dissolve Parliament. According to the video, if Her Majesty doesn’t like the outcome of an election, she could call for more elections until she got the Parliament she wanted. This simply isn’t true. While it used to be that the Sovereign could dissolve Parliament and call for new elections at any time by virtue of the royal prerogative, the Fixed-term Parliaments Act 2011 put the kibosh on that. Since then, the Monarch has had no say in the dissolution of Parliament (not even a formal one). Now, a Parliament automatically dissolves after five years. The Fixed-term Parliaments Act does allow early dissolutions and elections in certain circumstances, but MPs make that call, not the Queen.

Another of the video’s dodgy claims is that Her Majesty can have anyone arrested and seize their property for the Crown. This was certainly the case in the past, but these powers were curtailed as far back as the Middle Ages. For example, a celebrated clause in Magna Carta declares that:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

This same principle would be restated over a century later in the statute 28 Edw. 3 c. 3. Although later monarchs (e.g., the Stuarts) tried to circumvent it, Parliament fought back. In 1640, Parliament passed the Habeas Corpus Act, which declared that the Monarch and the Privy Council could not arbitrarily dispose of people’s property. Furthermore, people who had been imprisoned by order of the Sovereign or the Privy Council were allowed to challenge their detention through the writ of habeas corpus. These provisions remain the law of the land to this day, and they act as a bulwark against the sort of royal despotism that the video envisions.

My final quibble is admittedly rather nitpicky. The video claims that the Queen refused Crown Consent to prevent Parliament from debating a bill that would have required parliamentary authorization for military action in Iraq (it should be noted that Queen’s Consent is not the same as Royal Assent; for a more detailed discussion, see this post). While it’s true that the bill didn’t proceed because Queen’s Consent wasn’t signified, it’s misleading to imply that this was the Queen’s doing.

The bill in question was introduced by a backbench MP, veteran left-winger Tam Dalyell, and therefore it was his responsibility to obtain the Queen’s Consent. However, it seems that Dalyell, a longtime republican, refused to do so on principle. A BBC article from the time quotes him as saying, “I am not going crawling to the Queen. This has nothing to do with her.” The Queen can hardly be held responsible if Dalyell didn’t follow the rules.

Even if the Queen’s Consent were formally refused, it would still be wrong to describe it as a personal act of Her Majesty. Like the vast majority of the Sovereign’s powers, the power to grant Consent is exercised on the advice of the Prime Minister. If Consent were refused, it was Tony Blair’s doing, not the Queen’s.

I like Today I Found Out, but I think they came up short on this one. Looking through their sources for the video, I couldn’t help but notice that they relied heavily on media reports. This was arguably a mistake–even reputable outlets like the BBC, The Guardian often make mistakes when covering constitutional matters. The British constitution is incredibly complex, and it’s riddled with caveats and exceptions. A superficial glance can easily produce misleading generalizations.

Incidentally, if you’d like to read more about the Queen’s powers, you might want to check out this post I wrote a while back. And if you have any questions, feel free to ask!

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Voting Down The Queen’s Speech

With the Conservatives still short of a deal that will guarantee their majority, there is a real chance that Theresa May’s government could be defeated on the Queen’s Speech. A reader named Nathan recently wrote to ask if any examples of governments losing this crucial vote.

First, we need to understand how the Speech from the Throne can bring down a government. It’s customary for MPs to thank the Queen for the speech by presenting her with a ‘Humble Address.’ Invariably, the Opposition tries to amend the address by inserting language that deprecates the government and its policies. Usually, this is nothing more than political theatre, as a government with a majority can easily vote down these amendments. But a minority government without a confidence and supply agreement could be vulnerable to defeat. If the address is amended in such a way that it condemns the incumbent government, that would be tantamount to a vote of no confidence.

The last Prime Minister to suffer the indignity of losing the vote on the Speech from the Throne was Stanley Baldwin in 1924, and there are some striking similarities between his situation and the one facing Theresa May. Baldwin also became Prime Minister following the unexpected resignation of his predecessor, and although he had a majority, he called a snap election in December 1923 in order to win a stronger mandate for his approach to a controversial issue (in his case, it was tariff reform).

Like May, Baldwin ended up losing his majority, though the Tories were still the largest party in the Commons. This prompted him to try to carry on as a minority government. He went to Parliament in January 1924 with a King’s Speech, but Labour tabled an amendment stating that the House had no confidence in the King’s present advisers, and the Liberals helped ensure its adoption. Baldwin promptly resigned, and Labour’s Ramsay MacDonald was allowed to form his own minority government with the support of the Liberals, though it only lasted eleven months and a further election returned Baldwin to Downing Street before the year’s end.

Although an amendment to the Humble Address has traditionally been enough to bring down a government, the Fixed-term Parliaments Act 2011 has muddied the waters somewhat. Section 2(4) of the Act specifies the form of a motion of no confidence (“That this House has no confidence in Her Majesty’s Government”), and amending the Humble Address might not comply with that provision. In theory, that means that any vote on the Queen’s Speech would be purely symbolic, and if Labour actually wanted to bring down the Government, they would have to table another motion using the words found in the Fixed-term Parliaments Act.

However, if Labour successfully amended the address, it would be very hard for Theresa May to continue in office. At that point, I suspect she would probably resign and advise the Queen to ask Jeremy Corbyn to form a government. She could also ask the House to authorize another snap election, though she would need the support of a substantial number of non-Tory MPs to get it passed.

If Corbyn did form a government, he would not need to present a Queen’s Speech of his own. Constitutionally speaking, it would be redundant. The Queen has opened Parliament; as long as it isn’t prorogued, there is no need for a further speech. When Ramsay MacDonald took over in 1924, he simply made his own statement outlining the new government’s priorities, and Corbyn would probably follow his precedent. He isn’t exactly a fervent monarchist, so I can’t see him wanting any more royal pomp and circumstance than is absolutely necessary.

Corbyn’s government would almost certainly face a vote of confidence–he might even table it himself in a bid to establish his right to govern. If he were defeated, MPs would have little choice but to vote for an early election. While the Fixed-term Parliaments Act establishes a 14-day window after a no confidence vote in which others can try to form a government, this would be pointless if both the Tories and Labour have already lost the confidence of the Commons.

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