Right-to-die judgment of Appeal Court: Summary

This morning the Appeal Court handed down its judgement in the “right-to-die” case R (on the application of) Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961.  It summarized the appeals as concerning

“individuals who suffer from permanent and catastrophic physical disabilities. They are of sound mind and acutely conscious of their predicament. They do not want to suffer a painful and undignified process of dying. They wish to die at a time of their choosing. However, they are not physically capable of ending their own lives unaided.”

The Court considered three issues:

– Should the common law be developed to recognise a defence to murder where a doctor or other person gives effect to the settled wish of a competent person to end his or her own life?

– Whether the current legal prohibitions which placed an absolute legal prohibition on assisted dying were compatible with Article 8 ECHR, and the margin of appreciation afforded to Member States;  and

– Whether the policy of the Director of Public Prosecutions, (DPP), satisfies the Convention principles of proportionality.

With regard to the first, Lord Judge reiterated the position that the law relating to assisting suicide cannot be changed by judicial decision, and emphasized that the requirement for Parliamentary involvement “does not demonstrate judicial abnegation of our responsibilities, but rather highlights fundamental constitutional principles”

On the second issue, the Court was unanimous in upholding the blanket prohibitions on euthanasia and assisted suicide, and held that these do not constitute a disproportionate interference with the Article 8 rights of the appellants.

By a majority decision, the Court upheld the appellant Martin’s complaint that the Policy of the DPP fails to provide sufficient clarity as to the DPP’s prosecution Policy with respect to those persons who fall into what it termed the class 2 category, i.e. helpers with no close or emotional connection with the person seeking to end his or her life [1]. The court ordered the DPP to provide clarification.

Both the Director of Public Prosecutions and the Nicklinson and Lamb families immediately indicated their intentions to appeal the judgment to the Supreme Court

We will post a fuller report later.  Rosalind English has  analysed the case on the UKHR blog on which there is a link to the judgement.

[1] Persons in the Class 1 category include: (i) a friend or family member who is willing to arrange for the use of the services of Dignitas; (ii) a helper, who has emotional ties to the victim, acts in good faith out of compassion; and (iii) there are no particular grounds for concern about the motives of the helper or about the vulnerability of the person being helped.  Under the DPP Policy, these are unlikely to be prosecuted.

Legal standing and other changes to judicial review

The Plantagenet Alliance is currently seeking permission to apply for a judicial review of the decisions taken by the Ministry of Justice and the University of Leicester in relation to a licence, issued under section 25 of the Burial Act 1957 by the MoJ, for the exhumation of the remains which were later identified as those of Richard III.  The areas of concern include: the absence of consultation by the MoJ prior to the exhumation, by the University following the identification of the remains; and the MoJ’s decision not to re-visit the grant of the licence once it became clear that the University of Leicester would not carry out an appropriate consultation.

On 6 July the Plantagenet Alliance announced that the High Court in London had received and filed all claim documents (including supplementary information and Witness Statements) from all parties and would review these during the following 6-8 weeks. A ruling regarding the Permission Stage and the Alliance’s application for a Protective Costs Order would then be made. If granted, the Judicial Review will examine illegality, irrationality or procedural irregularities of the decision making processes of the MoJ and the University of Leicester, but not the validity of the decisions themselves.

In parallel with these events, the Ministry of Justice has been progressing its programme for reforming judicial review, and whilst these are unlikely to have an impact on the application of the Plantagenet Alliance, they are of general relevance to the future application of the law in this area [1]. Subsequent posts will address the Church of England’s proposed changes to section 25 of the Burial Act 1857, here, and the implications of the recently published findings on the car park excavations of the University of Leicester, here.

 Judicial Review

At the end of last year, the Ministry of Justice undertook a public consultation Judicial Review: proposals for reform [2], and in its response, government announced its intention to proceed with the majority of its proposals including: reduction of the time limit for judicial review from three months to six weeks in planning cases and thirty days in procurement cases; withdrawing the right to renew an application orally, for claimants turned down on the papers, where the judge certifies the application as “totally without merit”; and the introduction of a fee of £125 for claimants who choose to renew an application orally.

In their analysis of the consultation responses, Varda Bondy and Maurice Sunkin highlight some of the weaknesses in the government’s evidence base in relation to the scale of litigation and abuse, and suggest that reforming the process may have nintended consequences that could increase burdens on public bodies and the courts without achieving the ends that the government hopes. They suggest that restrictions on access may also have a disproportionate adverse effect on claimants with genuine legal disputes with public bodies especially in relation to public service provision.

This week it was reported by The Times and The Daily Telegraph that the government is seeking to introduce a further set of reforms which will place significant restrictions on the test for the legal standing of groups or individuals in judicial review cases, (see Mark Elliott’s post of 29 July 2013 on his Public Law for Everyone blog).  Currently section 31(3) of the Senior Courts Act 1981 sets out a test for legal standing based upon a requirement of “sufficient interest” in the matter in question, of which Elliott notes that “over the years, the vague statutory “sufficient interest” criterion has been imbued with a generous meaning”.

He continues, following R v Inland Revenue Commissioners, ex parte National Federation of Self-employed and Small Businesses Ltd, [1982] AC 617 [1982] AC 617, “courts went on to fashion a broad—but not infinitely broad—standing test”. The case of R v HM Inspectorate of Pollution, ex parte Greenpeace (No 2) [1994] 4 All ER 329 introduced the concept “associational standing” in which a pressure group was allowed to issue a claim on behalf of its local members who might be affected by the  commissioning a new nuclear reprocessing facility. In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386, standing was further extended to include considerations of public interest.


The MoJ’s December Consultation focussed on immigration and asylum matters, the main “growth area” in Judicial Review [3], but clearly any changes to the JR regime will impact on individuals or groups who claim the illegality, irrationality or procedural irregularities in the decision making processes of the Executive, including those of Ministers, local authorities, other public bodies and those exercising public functions.

Section 25 of the Burial Act 1875 addresses exhumation from both “consecrated place[s] of burial” and “any place of burial” [4], and judicial review is applicable both to the bodies issuing “section 25 licences” and to the ecclesiastical courts.  This has been reviewed by Hill [5] and more recently by Hill, Sandberg and Doe in Religion and Law in the United Kingdom [6],in which the authors state [at page 37]

“It is generally thought that the decisions of the Church courts are subject to judicial review of the High Court.  Section 81 of the Ecclesiastical Jurisdiction Measure 1963 states that the High Court has power to enquire into contempt of the Consistory Court upon certification by the chancellor, [section 81(3)], and recognizes the supervisory jurisdiction of the High Court over the Consistory Court. . . . . . . . For the purposes of the Human Rights Act 1998, all courts and tribunals of the Church of England are public authorities and as such must act in a way which is compatible with Convention rights, [section 81(2)]”.


Although not of direct relevance to the above discussion, for completeness, readers’ attention is drawn to today’s post by Aileen McHarg of the Constitutional Law Group – Access to Judicial Review In Scotland – in which she discusses the intention of the Scottish Government to recommend the approach in England and Wales by introducing a leave requirement and a three month time limit for Judicial Review.  A consultation has been launched for the incorporation of these recommendations, inter alia, through the Draft Courts Reform (Scotland) Bill.

[1] This post is not a commentary on these current proceedings, but an analysis of the issues raised in the MoJ consultation in the context of the future developments in this general area.

[2] 13 Dec 2012 to 24 Jan 2013.

[3] The consultation states [at para.31]: “In the majority of applications considered by the courts, permission to bring Judicial Review proceedings is refused. Of the 7,600 applications for permission considered by the Court in 2011, only around one in six (or 1,200) was granted.13 Of the applications which were granted permission, 300 were granted following an oral renewal (out of around 2,000 renewed applications that year)”.

[4] There is a degree of uncertainty regarding the scope of the term  “any place of burial”, and whether this applies as a default position to any land which is not consecrated by the Church of England, or is covered by another statutory provision.

[5] M Hill, “Judicial Review of Ecclesiastical Courts”, in English Canon Law, ed. N Doe, M Hill & R Ombres, (1988, University of Wales, Cardiff) 104-114.

[6] M Hill, R Sandberg and N Doe, Religion and Law in the United Kingdom, Kluwer Law International, The Netherlands 2011).

Sikh Council caution on ending civil marriage ceremonies

It has been reported in The Daily Telegraph that Sikhs In England, a specialist advisory body, has advised Sikh temples that they should halt all civil marriage ceremonies on their premises to protect them from possible legal challenges for refusing to conduct same-sex weddings.  The story is carried elsewhere, but the source of the original letter or further information on Sikhs in England is not readily accessible.  However, the Sikh Council UK (SCUK) – the largest representative body of Sikhs in the UK – has issued a press release in which it

“urge[s] Gurdwaras to be cautious when considering advice to stop Civil Marriage Ceremonies at the Gurdwara premises as the advice clearly betrays a lack of understanding of the legal framework and the actual practice of Anand Karaj ceremony and the associated civil registration procedure, [emphasis added]”. Continue reading

Religion and law round up – 28th July

In a week during which the Church of England acquired its next Supreme Governor but two…

Religious observance and availability for work

In the round-up for 7 July we reported the case of Slinger v DWP, in which the Social Entitlement Chamber had allowed an appeal by Mr Jacob Slinger, a nineteen-year-old Charedi from Greater Manchester, against a decision of the Department for Work & Pensions to deny him Jobseeker’s Allowance on the grounds that, as an observant Jew, he refused to work on Shabbat. The Washington Post (that’s Washington DC, not Washington UK) reports that the DWP now plans to investigate the situation more generally, presumably to see whether there have been previous cases of religious discrimination of this kind that went unchallenged at the time.

Parental disagreement about religious upbringing

Last week we noted the judgment in SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 in which the Court of Appeal refused asylum to a Malaysian Roman Catholic woman who feared that if she and their six-year-old son were returned to Malaysia her husband would mistreat her and, despite her objections, compel the child to convert to Islam.

It now appears that the situation might have been more complicated than it appeared from the judgment in SS. Agence France-Presse reported that, pretty well simultaneously with the Court of Appeal’s judgment, a court in the northern city of Ipoh, the capital of Perak state, ruled that the conversion by their father in 2009 of three Hindu children, now aged five, 15 and 16, without their mother’s knowledge had been unconstitutional. Under sharia, which governs civil matters for Muslims in Malaysia, a non-Muslim parent cannot share the custody of converted children – which meant that Mrs Indira Gandhi, a kindergarten teacher in her late 30s, faced losing custody of her children after her husband converted himself and them without her knowledge. The court ruled that the father had failed to take the mother and the children to the Islamic authorities for their consent to the conversion.

Earlier in the month the Malaysian Government withdrew a controversial bill that would have allowed one parent to give consent for a child’s conversion. Deputy Prime Minister Muhyiddin Yassin told the media that the Cabinet had decided to withdraw the Administration of the Religion of Islam Bill following concerns from various quarters, including from within the ruling coalition of the Barisan Nasional (National Front) party itself: “The Cabinet has decided to withdraw the child conversion bill until the approval of all stakeholders is received”. Opponents said that the proposals discriminated against minorities despite Government promises to address their grievances.

All of which leaves one wondering whether Ms SS’s fears about her son being forcibly converted should they be returned to Malaysia were entirely well-founded.

Church funding

The underlying theme of our recent post Painting an accurate picture was the upkeep and maintenance of the Church of England’s 16,200 parish churches and 42 mainland cathedrals. This explored the conflicts between those with direct responsibility for their daily operation, and others promoting broader issues and ensuring that within the public square they continue to be perceived as buildings worth visiting and supporting.  This week is the 60th anniversary of the National Churches Trust, (NCT), “an independent, national non-profit making organisation that supports and promotes church buildings of historic, architectural and community value.” Since 2005, it has distributed more than £9 million in grants for restoration and modernisation to over 1,000 churches, covering a range of denominations throughout UK.

As part of its anniversary celebrations, the NCTs revealed some of ‘The UK’sLlandaff 2013, IMG_2294 Favourite Churches’, as chosen by 60 top people from the world of politics, entertainment, journalism, academia and church leaders, here.  This weekend, David will be introducing the choir of SS Peter and Paul, Wantage to the choice of the Most Revd Barry Cennydd Morgan, the Archbishop of Wales, i.e. the Parish Church of SS Peter and Paul, Dyfrig, Teilo and Euddogwy (a.k.a. Llandaff Cathedral) [1].

Further scrutiny at the Vatican

On 26 June Pope Francis issued a chirograph [2] which established a Pontifical Commission charged with gathering “accurate information” on the legal position and various activities of the Institute for the Works of Religion (IOR, the Vatican’s financial institution), here The commission comprises 5 people and its findings will allow for “a better harmonization of the IOR with the universal mission of the Apostolic See.

On 18 July the pontiff issued a further papal decree setting up another Pontifical Commission for Reference “on the study and guidance of the organisation of the economic-administrative structure of the Holy See”, here.  This too will gather “accurate information on economic questions regarding the Vatican Administrations and … co-operate with the … Council of Cardinals in its valuable work, offering the technical support of specialist advice and developing strategic solutions for improvement, so as to avoid the misuse of economic resources, to improve transparency in the processes of purchasing goods and services; to refine the administration of goods and real estate; to work with ever greater prudence in the financial sphere; to ensure the correct application of accounting principles; and to guarantee healthcare and social security benefits to those eligible.”

The Royal baby

The birth of the royal baby, who will be known Prince George, means that the monarchy now has three generations of heirs to the throne for the first time since 1894. With the full title His Royal Highness Prince George Alexander Louis of Cambridge, he is destined to become George VII or VIII, depending upon the regnal name chosen by Prince Charles, (who could decide to be called George VII). The Archbishop Cranmer blog observes:

“[w]e now have four supreme governors of the Church of England lined up very nicely, to be the guardians of the Church’s authoritative formularies, its polity and its confessional identity of affirmation and restraint. They provide ecclesial continuity, theological identity and doctrinal stability”

– although the assumption that the link between Church and State will be retained over that length of time does appear to be a tad presumptuous.

By way of contrast and perhaps closer to the likely developments, Nick Barber of the Constitutional Law Group has written a draft retrospective post for 2075 in which he reviews possible developments in this period: retention of links with the monarchy and Privy Council by a number of the smaller Realms, some small territories deciding, for economic and foreign policy reasons, to retain the Royal connection; a fractious and diverse UK in which  Scotland is planning its 10th vote on independence; a move towards the abdication of the monarch as the norm; a shift to a formal federal structure in the middle part of the century as the important day-to-day decisions are increasingly made by the first ministers of England, Scotland, Wales, and Northern Ireland, without reference to the monarch. He further predicts that the monarch is no longer the head of the Church of England: “a divorce that brought great relief to each party – and no longer has any real political power”.

Back to the present time, and HRH’s Highgrove Shop and Garden was quick off the mark in announcing “[t]o commemorate this wonderful event we have created a unique collection of carefully crafted gifts which are ideal for new parents and babies everywhere.” Profits from the sale of Highgrove products are donated to The Prince of Wales’s Charitable Foundation, a grant-making charity which supports a wide range of causes and projects.

And finally…

We don’t reckon to use this blog for self-advertisement; but Frank thought it might be pardonable to mention an article, just published, that he co-wrote with Javier García Oliva because it appears in a generalist public law journal rather than in one specialising in law and religion. ‘Education and Religious Symbols in the United Kingdom, Italy and Spain: Uniformity or Subsidiarity?’ (2013) 19 European Public Law Issue 3 pp 555–582 looks at some of the issues around the display of religious symbols in the three countries as part of the broader debate about the place of religion in wider society, the extent to which personal religious preferences should be accommodated and the degree to which liberal democracies may legitimately exhibit an overt religious character.


[1] The choir was to be singing at service from Friday to Sunday, and Dr Morgan is the preacher on Sunday, here.

[2] A papal decree which is directed at the Roman curia.

Mental Capacity v Legal Capacity in Ireland

Within the UK, the issue of “capacity” falls within the Mental Capacity Act 2005 and a recent post considered its application in relation to the Abortion Act 1967 in the cases of Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) 21 May 2013 and Re P (abortion) (2013) MHLO 1 (COP).  In the former, Holman J reached a different overall conclusion as to capacity from that of the psychiatrists, and also of the husband and the mother, [at 36 and 37].  Whereas the medical experts’ conclusion was based upon “evidence within their professional domain”, which the judge unreservedly accepted, his was based upon the provisions of within the legislation. 

This situation in Ireland is different where the legislation in this area is largely based on the Lunacy Regulation (Ireland) Act 1871, which the government now accepts is “highly unsuitable for the 21st century”.  The law discriminates against all of those with intellectual disabilities, by classifying them under the same, umbrella term “lunatic”, which includes people with an intellectual disability, serious mental health problems, dementia and acquired brain injury.   Most problematic is the Ward of Court system, whereby for those who are made a ‘Ward of Court’, all decisions about their lives and property, from medical and money decisions, to leaving the country and marrying are made by the Court. Furthermore, anyone so defined may not partake in sexual acts of any nature, as it is deemed to be a crime under Section 5 of the Criminal Law Act. 

Although Ireland signed the UN Convention on the Rights of Persons with Disabilities, (CRPD), in December 2007, a significant obstacle to ratifying it has been the absence of modern national legislation on legal capacity, and on 17 July the government published the Assisted Decision-Making (Capacity) Bill 2013, a linked Explanatory Memorandum and Press Release.  The objective of the Bill is to:

  • replace the Wards of Court system with a legal framework to support people in exercising their decision-making capacity so that they can better manage their personal welfare, property and financial affairs
  • change the existing law on capacity from the current “all or nothing” status approach to a functional one, whereby decision-making capacity is assessed on an issue-and time-specific basis
  • provide a range of supports, on a continuum of intervention levels (for instance, decision-making assistance, co-decision-making, decision-making representation, informal support), to support people in maximising their decision-making capability
  • provide, in circumstances where it is not possible for a person to exercise their capacity even with support, that another person can be appointed by the Court to act as their representative with regard to specified matters
  • provide that the Circuit Court will have jurisdiction on this area giving court-backed protection to the options chosen by people
  • clarify the law for carers who take on responsibility for persons who need help in making decisions
  • establish an Office of Public Guardian within the Courts Service, with supervisory powers to protect vulnerable persons
  • subsume into the Bill the provisions in the Powers of Attorney Act 1996 on enduring powers in order to bring them into line with the general principles and safeguards in the Bill.

In her analysis of the Bill on the Human Rights Ireland blog, Eilionoir Flynn notes that under the definition of “capacity” in section 3, the proposed legislation “continues to view mental capacity as a precondition for legal capacity, and in that sense, it is problematic from a human rights perspective”.  Furthermore, this approach “continues to provide a role for substitute decision-making where individuals are found to lack mental capacity”, a practice that has repeatedly been criticized by the UN Committee on the Rights of Persons with Disabilities. 

Other concerns include: the criteria and operation of co-decision-making; the “old-style thinking” in the establishment of an Office of Public Guardian; the wide range of powers granted to “informal decision-makers” without conferring any particular authority on them, or ascertaining whether there might be a conflict of interest, or supervising and monitoring their actions; and the exemption of a large portion of existing laws from the impact of new Bill. With regard to the latter, many of the exempted provisions apply more restrictive approaches to capacity than the proposed legislation, and these would not be compliant with Article 12 of the UN Convention, such as section 5 of the Criminal Law (Sexual Offences) Act 1993. 

Inquiry into alleged sexual abuse by the late Dean of Manchester

The Archbishop of York has announced an independent inquiry into the Church’s handling of reports of alleged sexual abuse by Robert Waddington, formerly Dean of Manchester, who died in 2007. The full terms of reference are as follows:

“Having consulted the Lord Chancellor and the Lord Chief Justice, the Archbishop of York hereby:

1. Commissions an Independent Inquiry into the issues surrounding the reports relating to alleged child sexual abuse by the late Robert Waddington.

2. Appoints as Chair of the Inquiry Her Honour Judge Sally Cahill QC, Mrs Nicola Harding, Solicitor, and Registrar for the Diocese of Ripon and Leeds, will act as Secretary to the Inquiry, and Mr Joe Cocker will act as Independent Social Work Consultant.

3. Calls upon the Inquiry:

(i).    to establish what information suggesting that Robert Waddington had committed sexual abuse was made known to whom in the Church of England and when;

(ii).  to focus upon an examination of the way in which the relevant Child Protection Policies were or were not applied between the years 1999 and 2005 in the handling, (a) by the Diocese of Manchester and (b) by the then Archbishop of York, of the information provided to them suggesting that sexual abuse had been committed by the late Robert Waddington;

(iii). to consider whether and if so to what extent the handling of that information might have been dealt with differently if the current safeguarding Policies of the Church of England as set out in ‘Protecting all God’s Children’ (2010) and in ‘Responding Well’ (2011) had been in place.

4. The Inquiry will have access to all relevant files held at Bishopthorpe Palace, at the office of the Bishop of Manchester, and at the office of Manchester Cathedral. The Inquiry will liaise with church authorities in the Diocese of North Queensland and the Royal Commission in Australia to ensure that they have had access to all relevant communications between the Diocese of North Queensland,  Australia, and the offices of the Bishop of Manchester and the Archbishop of York. The Inquiry will also conduct interviews (if necessary) with those who may have relevant information.

5. If considered necessary the Inquiry will report to the Archbishop about alterations or extensions to these terms of reference.

6. The Inquiry will take into account any information which may come forward, that is considered relevant by the Chair to the Inquiry.

7. All those who believe that they have information relevant to these matters are invited to submit evidence to the Inquiry.  This may be done in the first instance by writing to Mrs Nicola Harding at Tunnard & Co Solicitors, Cathedral Chambers, 4 Kirkgate, Ripon HG4 1PA, e-mail  njh@tunnardsolicitors.com.

8. The Inquiry will report to the Archbishop of York with recommendations by the end of October 2013. The findings of the Inquiry will be made public.”

Cambridge Surprise Royal

A number of official and unofficial events marked the birth to a boy to the Duchess of Cambridge on Monday 22 July at 16:24 BST.  At 2 pm on 23 July, the Westminster Abbey Company of Ringers rang a full peal on the Abbey’s ten bells, which coincided with the 41 gun salute by The King’s Troop Royal Horse Artillery in Green Park and a 62 gun salute by the Honourable Artillery Company, the City of London’s Army Reserve Regiment, from Gun Wharf at the Tower of London. The peal [1] comprised five thousand changes of Cambridge Surprise Royal and lasted for over three hours. Traditionally the Abbey’s bells are rung for significant royal occasions, and the birth of Prince William was marked with a peal of a peal of Yorkshire Surprise Royal in 1982. Ironically, the last royal gun salute for a birth was 1990 for Princess Eugenie, who as a consequence of the birth will now move from sixth to seventh in line of succession – but when section 3(1) of the Succession to the Crown Act 2013 comes into force will no longer require the monarch’s permission to marry.

As the historian and broadcaster David Starkey noted in The Independent, “for the very first time it has made no difference what the gender of the child is – it is the heir and it is as simple as that”, adding that “[t]he fact that it is a boy postpones the idea of authentic female succession.” He also pointed out that “the effect of the Act that everybody has been labouring over (?) will not now be felt for 100 years”. Given the retrospective nature of some of its provisions, it is perhaps timely to reassess its possible impact and what was achieved through its hurried introduction.

When do the provisions of the Act come into force?

Although the Succession to the Crown Act 2013 received Royal Assent on 25 May 2013, the only part in force is section 5, which states, inter alia, that the substantive provisions will only come into force “on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint”. This is clarified in the Explanatory Notes which indicate [paras. 33 to 36 inc.] that

“The substantive provisions of the Act will come into force on such day and at such time as is specified by order made by the Lord President of the Council.

The Government expects to bring these provisions into force at the same time – but at different local times – as the other Realms bring into force any changes to their legislation or other changes which are necessary for them to implement the Perth Agreement [between the relevant Commonwealth Heads of Government]. Section 5(3) allows for flexibility in commencement should unforeseen circumstances arise.

Some Commonwealth Realms have decided that they do not need to legislate as the changes made by the Act will have effect in their countries automatically. Other Realms have legislated or will legislate to ensure that the changes to the rules on royals succession take effect in their countries.

The Government has undertaken to inform Parliament when the commencement order or orders are made by the Lord President of the Council.”

Is the Act retroactive or retrospective?

The media and others tend to use these terms interchangeably, and although the House of Commons Library has recently produced a Standard Note, Retrospective legislation, SN/PC/06454, this does not assist in distinguishing between them. However, in the Canadian case Hornby Island Trust Committee v Stormwell 1988 CanLII 3143 (BC CA) Lambert JA clarified the position as:

“A retroactive statute operates forward in time, starting from a point further back in time than the date of its enactment; so it changes the legal consequences of past events as if the law had been different than it really was at the time those events occurred. A retrospective statute operates forward in time, starting only from the date of its enactment; but from that time forward it changes the legal consequences of past events” [para 15].

On this basis, the provisions within the Act regarding succession – section 1 – are retrospective to 28 October 2011: the date of the Commonwealth Heads of Government Meeting in Perth.  At that meeting, the Prime Minister of the UK announced that

“with the agreement of the fifteen other Commonwealth Realms of which Her Majesty is also Head of State, the United Kingdom would change the rules of royal succession to end the system of male preference primogeniture and the bar on those who marry Roman Catholics from succeeding to the Throne.”

The retrospective element of section 1 will apply to Tāne Lewis and Senna Lewis, (children of Lady Davina Lewis [2]), currently 26th and 27th in line, who will change places since Tāne was born after 28 October 2011 and will lose his position of male preference over his older sister.

The provision relating to Roman Catholics  – section 2(2)) – is also retrospective but has no cut-off date.  It “applies in relation to marriages occurring before the time of the coming into force of [s2(2)] where the person concerned is alive at that time (as well as in relation to marriages occurring after that time)”. The retrospective element will apply to

  • the Earl of St Andrews, son on the Duke of Kent (who married a Roman Catholic), who will be restored to the line of succession at 32nd.; and
  • Prince Michael of Kent who will be restored to 44th in line to the throne;

Although the third element of the Act – consent to royal marriages – was not mentioned in the Perth Agreement, it “had been referred to by the Prime Minister in an invitation to the Heads of Government of the Commonwealth Realms to consider issues relating to succession [3]. Section 3(5) too is retrospective, and “probably applies to several hundred people, many of whom will be unaware of [The Royal Marriages Act 1772] or its impact on the validity of their marriages [4]”.


The Succession to the Crown Act will bring the UK into line with other European countries which have introduced equal primogeniture: Sweden, 1980; Netherlands, 1983; Norway, 1990; Belgium, 1991; Denmark, 2009; and Luxembourg, 2011. However, as Viscount Astor noted during the Bill’s Second reading [14 Feb Col. 810],

“[t]he Select Committee report pointed out that the retrospective element of the provision obviates the need for fast-tracking … even after the passage of the Bill, it will not come into force until, under Clause 5, an award is made by the Lord President of the Council”.

In the UK Constitutional Law Group blog, Professor Robert Hazell states that

“the nature of the change required varies roughly in proportion to the size of the country: the smallest countries may simply pass a Cabinet resolution, others will legislate in parliament, while the largest countries may need to amend their constitutions.”

The federal nature of Australian and Canadian legislation has presented particular problems, and may have prompted some to question the continuing link with the monarchy of a country.

A further domestic issue was highlighted by Lord Trefgarne during Third reading of the Bill, who observed [22 April Col. 1229] that

“This Bill has also set running the hare of what happens to the hereditary peerage with regard to the succession arrangements for hereditary peers … those arrangements are … a great deal more complicated even than they are for the Crown.

In the medium- to long-term, there are clearly a number of issues to be resolved in this ‘straightforward’ five clause/one Schedule Bill”. [5]

[1] For a performance to be recognised as a peal by the Central Council for Church Bell Ringers, it must consist of at least 5,040 changes on seven working bells, or a minimum of 5,000 on higher numbers of bells, meet a number of other criteria (collectively referred to as the decisions), and be published in The Ringing World.
[2] née Windsor, elder daughter of Prince Richard, Duke of Gloucester and the Duchess of Gloucester.

[3] Explanatory Note to the Act, para. 7.

[4] Explanatory Note to the Act, para. 8. The 1772 Act was passed in haste as a result of King George III’s disapproval of the marriages of two of his brothers.

[5] Succession to the Crown Bill (Allocation of Time), N Clegg, [22 Jan 2013, Col. 210].