Charles and Camilla marriage: your viewsTHE marriage of the Prince of Wales to Camilla Parker Bowles was illegal, according to government advice given at the time of his divorce from Diana, Princess of Wales, The Times has learnt.
A document released under the Freedom of Information Act shows that John Major’s Government insisted a decade ago that the Royal Family would be forbidden from marrying in register offices.
The advice flatly contradicts the opinion given by the Lord Chancellor, Lord Falconer of Thoroton, to Parliament once the Prince announced his engagement last year. The Lord Chancellor omitted to point out that he was overturning recent guidance.
Lawyers and constitutional experts are now accusing ministers of placing in doubt the validity of the Prince’s marriage at Windsor Guildhall in April 2005 and his succession as King.
The Times asked the Cabinet Office for information about the heir remarrying after divorce. The document produced is potentially explosive.
Headed “Briefing for the Chancellor of the Duchy of Lancaster’s Appearance on Any Questions: The Royal Divorce”, it sets out John Major’s Government’s views. Although the two-page document is undated, it refers to the divorce as a topical issue and makes clear that the Princess is still alive. It can be placed around 1996.
The document looks at the constitutional position of a divorced Prince of Wales remarrying or succeeding. Under the heading “Remarriage”, the position is clear: “Members of the Royal Family are excepted from the provisions of the Marriage Act 1949, and their marriages in England and Wales must therefore be performed by Anglican clergy under either a Special or a Common Licence.
“There is, however, a moral obligation on Anglican clergy not to marry a divorced person in Church (if the former spouse is still alive) . . .”
The Princess, by contrast, could do as she pleased. She was exempt from the Royal Marriages Act 1772 which requires members of the Royal Family to have the monarch’s permission to wed. The document is unsigned but faint markings at the top of each page suggest it was faxed from the Home Secretary’s office.
Questions about the legitimacy of the marriage dogged the Prince from the moment in February last year when he announced that he would wed his long-term companion in a civil ceremony. Family law experts gave public warning that legislation excluded members of the Royal Family from register office weddings. When Lord Lyell of Mark-yate, QC, who was Attorney-General at the time of the divorce, raised his doubts, Lord Falconer made a formal statement.
Problems arise because the law which created civil weddings in England, the Marriage Act 1836, stated that it “shall not extend to the marriage of any of the Royal Family”. The Marriage Act 1949 had a similar exclusion clause: “Nothing in this Act shall affect any law or custom relating to the marriage of members of the Royal Family.” As the Royal Family had previously been not allowed by law to have the right to civil weddings, lawyers believed the ban stayed in force.
Papers released last year showed that Princess Margaret’s wish for a civil wedding to Peter Townsend in 1955 was thwarted when the Lord Chancellor, Lord Kilmuir, said that these laws forbade it. Until now, nobody beyond a small circle of government and royalty realised that the same advice was given at the time of the Prince and Princess’s divorce.
Lord Falconer, in his written statement about the Camilla wedding, gave a generous interpretation of the Marriage Act 1949. He said it “does not have the effect of excluding royal marriages from the scope of Part III, which provides for civil ceremonies”.
He added: “We are aware that different views have been taken in the past; but we consider that these were overcautious, and we are clear that the interpretation I have set out in this statement is correct. We also note that the Human Rights Act has since 2000 required legislation to be interpreted wherever possible in a way that is compatible with the right to marry (article 12) and with the right to enjoy that right without discrimination (article 14). This, in our view, puts the modern meaning of the 1949 Act beyond doubt.”
Len Cook, the Registrar-General, dismissed 11 formal objections to the marriage. He, too, cited the Human Rights Act.
Stephen Cretney, QC, Emeritus Fellow of All Souls, Oxford, and a leading authority on family law, yesterday accused Lord Falconer of “an astonishing failure to disclose” the previous advice, and of making a “bold and bare statement that this is all right. . . I haven’t actually found anybody who will categorically say, ‘There’s no question about it, the Government’s advice was correct’.” Although the Human Rights Act came into effect after the divorce, Britain had long been a signatory to the convention, Dr Cretney said.
Charles Mosley, Editor-in-Chief of Debrett’s, said: “This could be the trigger that brings about the passing of the throne to William. We have to know whether our King is legally married or not. If he wasn’t properly married, he would effectively be living in a state of concubinage . . . It seems Lord Falconer has a case to answer of cover-up. Either that or gross incompetence on the part of his department.”
Paul Williamson, of St George’s Church, Feltham, who formally objected to the marriage, said: “Nothing changed from that piece of advice. There’s no legislation.”
Clarence House said: “We received advice from four different legal sources, all of whom agreed that there was no bar to members of the Royal Family marrying in a civil ceremony. The main advice came from the Government.
“The marriage of the Prince of Wales and the Duchess of Cornwall is legal and valid. It has no bearing on the succession to the throne.” Asked how and why the advice changed between the divorce and the marriage, Clarence House said: “That is obviously a question for the Government.”
The Department for Constitutional Affairs said: “We accept that previous interpretations suggested that a civil marriage was unavailable. We think that advice was overcautious, and could not now be sustained.”
Marriage in register office ‘can’t be valid’
Valentine le Grice, QC, a family law expert, writes:
“In my opinion, a member of the Royal Family cannot contract a valid marriage in a register office, as the legislation permitting it excludes the Royal Family.
“It is a matter of public importance that the heir to the throne is validly married. From the viewpoint of the Prince of Wales and the Duchess of Cornwall, the legitimacy of their marriage is a vital part of their lives.
“The Government could have introduced brief legislation to resolve all doubt. It preferred to argue that the Human Rights Act validated the marriage.
“That is not correct, as the Human Rights Act is only a method of interpretation: it may make blue purple, but it does not make blue red.”
dkennedy@thetimes.co.uk
