§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
In the light of recent interest in the law surrounding Royal marriages, I am making this Statement to set out in more detail the view that has been taken by the Government on the lawfulness of the proposed marriage between the Prince of Wales and Mrs Parker Bowles.
The Government are satisfied that it is lawful for the Prince of Wales and Mrs Parker Bowles, like anyone else, to marry by a civil ceremony in accordance with Part III of the Marriage Act 1949.
Civil marriages were introduced in England, by the Marriage Act 1836. Section 45 said that the Act " … shall not extend to the marriage of any of the Royal Family".
But the provisions on civil marriage in the 1836 Act were repealed by the Marriage Act 1949. All remaining parts of the 1836 Act, including Section 45, were repealed by the Registration Service Act 1953. No part of the 1836 Act therefore remains on the statute book.
The Marriage Act 1949 re-enacted and re-stated the law on marriage in England and Wales. The Act covered both marriage by Church of England rite, and civil marriage. It did not repeat the language of Section 45 of the 1836 Act. Instead, Section 79(5) of the 1949 Act says that "Nothing in this Act shall affect any law or custom relating to the marriage of members of the Royal Family".
The change of wording is important, and the significance is not undermined by the fact that the 1949 Act is described as a consolidation Act. The interpretation of any Act of Parliament, even when it consolidates previous legislation, must be based on the words used in the Act itself, not different words used in the previous legislation.
In our view, Section 79(5) of the 1949 Act preserves ancient procedures applying to Royal marriages; for example, the availability of customary forms of marriage and registration. It also preserves the effect of the Royal Marriages Act 1772, which requires the Sovereign's consent for certain marriages. But it does not have the effect of excluding Royal marriages from the scope of Part III, which provides for civil ceremonies. As the heading to Section 79 indicates ("Repeals and Savings") it is a saving, not an exclusion.
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 88WS 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.