The government may have to legislate to prevent Prince Charles's human rights being denied by the current marriage laws, writes Gary Atkinson

Question: what do Prince Charles and the Belmarsh detainees have in common? Answer: they are both 'victims' under the Human Rights Act 1998. Let me explain.


If the family law experts are right (and the Lord Chancellor is wrong), the forthcoming marriage of Prince Charles to Camilla Parker-Bowles is legally scuppered from the outset.


The Marriage Act 1836 allowed commoners, but not members of the royal family, to have civil rather than church marriages for the first time. The more recent Marriage Act 1949 updated the 1836 Act but stated that nothing in the Act 'shall affect any law or custom relating to the marriage of members of the royal family'. The argument goes that the prince and Ms Parker-Bowles cannot have a civil marriage, and we all know a church marriage is out of the question.


Could the royal wedding be declared by the courts to be null and void? Will the Princess Consort be nothing of the sort? And what can be done to resolve the situation?


The couple could always get married in Scotland, where the legal obstacles present in England and Wales do not exist. However, this would have significant constitutional ramifications. While nobody is suggesting a furtive royal trip to Gretna Green, it is unlikely that an already sceptical public would tolerate such a step. The British public might be prepared to accept Camilla into the royal fold (as long as she has no constitutional role), but not if they thought there was anything underhand about it. A marriage in Scotland is, for popular reasons if nothing else, an unrealistic proposition.


Is there another solution? A novel way out of the impasse would be for Prince Charles to use the Human Rights Act. The prince could argue that his right to marry under article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms has been infringed by the 1836 Act. However, article 12 provides a right to marriage 'according to the national laws governing the exercise of this right'.


But, like the Belmarsh detainees, he could also claim a breach of his right not to be discriminated against under article 14 of the convention on the basis that the 1836 Act allows commoners to have a civil marriage but not royals. Article 14 prohibits discrimination on the grounds of 'birth or other status'. Why shouldn't the prince claim that he is being discriminated against because of his royal status? If the courts were in agreement, it would be open to them to make a declaration of incompatibility in respect of the relevant part of the 1836 Act, just as they did in the Belmarsh case with section 23 of the Anti-Terrorism, Crime and Security Act 2001.


What would be the effect of this? Nothing, in strict legal terms. A declaration of incompatibility would not render the offending section of the 1836 Act unlawful. But such a ruling from the courts would place enormous pressure on the government to amend the law by way of a remedial order under section 10 of the 1998 Act. Were the government to refuse to make such an order, this raises the spectre of the prince beating a path to the door of the European Court of Human Rights in Strasbourg.


Could it really come to this? Unlikely. The easiest option would be for the government to act of its own volition and introduce into Parliament legislation to remedy the current unsatisfactory state of affairs so as to allow the prince and Camilla Parker-Bowles to have a civil marriage. The government acting as a matter of urgency to remedy legislation that is not human rights-compliant - something else Prince Charles would have in common with the Belmarsh detainees.


Gary Atkinson is the head of public law at the York branch of the College of Law