Personalised exemptions for the Queen in her private capacity have been written into more than 160 laws since 1967, granting her sweeping immunity from swathes of British law – ranging from animal welfare to workers’ rights. Dozens extend further immunity to her private property portfolio, granting her unique protections as the owner of large landed estates.
More than 30 different laws stipulate that police are barred from entering the private Balmoral and Sandringham estates without the Queen’s permission to investigate suspected crimes, including wildlife offences and environmental pollution – a legal immunity accorded to no other private landowner in the country.
Police are also required to obtain her personal agreement before they can investigate suspected offences at her privately owned salmon and trout fishing business on the River Dee at Balmoral, where anglers are charged up to £630 a day to fish.
Under the longstanding but ill-defined doctrine of sovereign immunity, criminal and civil proceedings are not brought against the monarch as head of state. But an investigation by the Guardian, drawing on official documents and analysis of legislation, reveals the extent to which laws have been written or amended to specify immunity for her conduct as a private citizen, along with her privately owned assets and estates – and even a privately owned business.
One constitutional expert warned that the carve-outs undermine the notion that everyone is equal before the law, while another recommended the monarchy review and simplify the exemptions for the sake of public transparency.
As monarch, the Queen has a public and a private legal persona. The first, Elizabeth II, is the public figure who serves as head of state and owns historic assets such as Buckingham Palace or the royal art collection, which cannot be sold. The second, Elizabeth Windsor, is a private individual who can buy and sell investments and assets like any other citizen. Although famous for their royal association, the Sandringham and Balmoral estates are private assets of the Windsor family.
Unlike other private individuals, however, Elizabeth Windsor has also had personalised carve-outs and exemptions written into swathes of British law, often in areas where she has private interests or investments.
“There is a clear pattern, and they relate largely to the economic interests of the monarch,” said Thomas Adams, an associate professor of law at Oxford University, who examined the Guardian’s findings.
The UK government and Buckingham Palace refused to answer in detail questions about the process by which exemptions for the Windsor family were obtained. Both declined to say whether the Queen or her representatives had requested private legal immunity be written into laws. A recent Guardian investigation has separately revealed the way the monarch has influenced legislation using an obscure procedure known as Queen’s consent, in which her lawyers are able to vet laws that might affect her before parliament can approve them.
“The principles of crown application are long-established and widely known,” said Donal McCabe, the Queen’s communications secretary, referring to legal doctrine that UK law does not generally apply to the government and the monarchy. He declined to explain the palace’s interpretation of the private immunity clauses. McCabe did not dispute the existence of the exemptions, or that their effect was to grant immunity to the Queen as a private landholder and business owner.
The exemptions that have been granted to the current Queen will, in most cases, be transferred to Prince Charles when he becomes king.
Immunity from anti-discrimination laws
The most controversial exemptions ban the Queen’s employees from pursuing sexual and racial discrimination complaints. Even the most modern piece of anti-discrimination law, the Equality Act 2010, is designed not to protect those employed by the Queen.
Other laws contain carve-outs exempting the Queen as a private employer from having to observe various workers’ rights, health and safety, or pensions laws. She is fully or partly exempt from at least four different laws on workers’ pensions, and is not required to comply with the Health and Safety at Work Act 1974.
The practice of preventing the Queen’s employees from bringing discrimination claims against her household dates back to the late 1960s, when courtiers told ministers that “it was not, in fact, the practice to appoint coloured immigrants or foreigners” to clerical roles in the royal household.
Perhaps out of concern that such exemptions might be controversial or unacceptable to the British public, the Queen’s immunity from anti-discrimination law has typically been opaquely drafted.
While other clauses bluntly state that the law “does not affect Her Majesty in her private capacity” or does not apply to her private estates, her exemption from the Equality Act 2010 is apparent only through a one-line statement in an accompanying explanatory document.
This discreet approach can be seen in laws dating back to the 1970s, when the Queen was exempted from legislation including the Sex Discrimination Act 1975. At the time, a Whitehall mandarin described in a letter to Martin Charteris, the Queen’s then private secretary, how the phrasing of one exemption had “the substantial merit that it does not draw attention to the position of the sovereign”.
Thirty-one laws contain Queen’s immunity clauses banning police or environmental inspectors from accessing the Windsor family’s private properties unless they obtain her permission first. Sixteen relate to Scotland, where she is the owner of the 24,800-hectare (61,500-acre) Balmoral estate, which is held on her behalf by a private trust.
Three laws contain clauses immunising her private property holdings against compulsory purchase. In a case first reported last year, the Queen’s lawyers secretly lobbied for her to be immune from parts of a major Scottish law cutting carbon emissions.
Her legal immunity extends even to the Windsor family’s private salmon fishing business at Balmoral. Her estate rents out fishing beats on the River Dee to the public, advertising them “as some of the finest fishing in Scotland”.
Unlawful fishing is a serious issue on the river – in 2020-21 there were 51 suspected poaching incidents investigated by police and water bailiffs. But in 2013, Scottish ministers used a clause to the Aquaculture and Fisheries (Scotland) Act to clarify that police and water bailiffs were prevented from carrying out environmental inspections and enforcement visits of the beats without the Queen’s permission.
Documents obtained through environmental information law state: “Provision is made requiring consent to be sought before certain powers of entry to the private estates may be exercised”, and describe the clause as “defensible given the Queen’s position as a proprietor of salmon fisheries in Her private capacity”.
Under the Queen’s consent process, Scottish ministers were required to provide a copy of the legislation to the Queen’s private solicitors for their review before Holyrood could pass the law. A 2013 memo drafted to assist ministers in securing her approval, obtained by the Guardian, notes the Queen’s private business interests: “The exercise of these powers could affect Her Majesty’s salmon fishings on the Balmoral estate, although the exercise of such rights would not be undertaken without first obtaining the consent of Her Majesty.”
Dr Craig Prescott, a lecturer in constitutional law at Bangor University and former director of the Centre for Parliament and Public Law at the University of Winchester, said some of the exemptions risked opening the monarchy to charges of hypocrisy.
The Prince of Wales has advocated protecting the natural environment for decades, while the Duke and Duchess of Cambridge champion the Earthshot prize for solutions to the world’s most urgent environmental challenges.
“If you’re campaigning about the environment or conservation, and it turns out that certain laws relating to the environment or conservation – animal welfare at the very least – don’t apply to your private residences, then that doesn’t look good,” Prescott said, “particularly if you’re the only private residence in the country to which the law doesn’t apply.”
Other Queen’s immunity clauses exempt her from paying taxes or providing information to the bodies that collect them. In the early 1990s, Buckingham Palace admitted that the Queen did not pay income or capital gains tax, including on her private interests, and after severe public criticism she agreed to pay some taxes “voluntarily”.
However, since the devolution agreements of the first Blair ministry, the Scottish parliament and Welsh Senedd pass their own tax legislation. Scottish ministers have included Queen’s immunity clauses in laws passed between 2013 and 2017, exempting the Queen from a variety of minor taxes levied upon other British citizens. She pays no duty on purchases of land, no fees for making landfill disposals, and is partly exempt from duties on air travel.
Exemptions inserted into four laws passed by the Westminster, Scottish and Welsh parliaments between 2008 and 2017 stipulate that in addition to not paying tax, she is not obliged to provide information to tax inspectors or official statisticians.
Two Westminster acts in 2008 and 2011 prevent HM Revenue and Customs from compelling her to provide information, and she is not required to cooperate with Scottish and Welsh tax authorities set up by devolved legislation in 2014 and 2016.
In some cases, the purpose of the immunity is difficult to fathom, such as her exemption from a 2011 law empowering local councils to charge bars for selling alcohol after midnight, or a proposed clause in a 1998 law banning private citizens from setting off nuclear explosions.
“Sometimes it seems to be in for ‘belt and braces’ purposes,” said Prescott, citing her immunity to the Health and Social Care Act 2008. “Unless she’s started to take people’s teeth out I’m not entirely sure how it was going to apply in a private capacity.”
In 2010, the Scottish government adopted a different policy than the Westminster government, when it decided that the monarch should be bound by specific legislation unless there is a legitimate reason to exempt her.
But experts say there is a broader question: why has it been necessary for so many personal exemptions to be written into law, when the monarch is already immune to prosecution or civil action by virtue of the centuries-old doctrine of sovereign immunity?
“You have to ask: why do we need these carve-outs?” said Adams, who speculated that one effect of writing immunity clauses into statute could be to further strengthen her protection.
Even under sovereign immunity, contraventions of British law by the monarch would still be technically illegal, even if she could not be prosecuted for them, he argued. However, the Queen’s immunity clauses appear to extend the principle by making behaviour that would otherwise be illegal permissible if carried out by the monarch.
“The only case for this is a constitutional one: that this maintains the institution, making sure that the monarch is not brought into disrepute in one way or another,” Adams said.
“But it comes at this big cost. Not only do we say that the monarch can’t be prosecuted in accordance with our laws, but we say these are not even laws for our monarch. That causes pretty big problems for our sense of equality before the law.”
July 14, 2022 at 04:36PM Severin Carrell, Rob Evans, David Pegg and Mario Savarese