Royals unlikely to win any legal action over race row, says Cliff Richard lawyer
The royal family is unlikely to succeed in any legal action arising from the publication of the two names linked to an alleged race row despite the insistence of Buckingham Palace that it is “exploring all options”, a leading lawyer has said.
Senior courtiers have hinted that legal proceedings could remain on the table after King Charles and Catherine, Princess of Wales, were named in a Dutch translation of a book by author Omid Scobie in passages exploring claims that two senior royals raised “concerns” about the skin tone of the then unborn son of the Duke and Duchess of Sussex.
The names of the royals have since been repeated across multiple UK and international media outlets, including the BBC and the New York Times after broadcaster Piers Morgan, an arch critic of the Sussexes, repeated the details on his TalkTV show on Wednesday, saying he did not believe any racist comments had been made.
Mr Scobie has said the naming of the monarch and the Princess of Wales is an error by the Dutch publisher.
But the resurrection of the claim first made by the duchess in her 2021 interview with Oprah Winfrey has left royal aides scrambling behind the scenes to explore potential responses while the Windsors publicly adopt a “business as usual stance”.
The King has made no reference to the controversy while in Dubai on a high-profile visit to attend and address the COP28 climate change summit and the Prince and Princess of Wales did not respond to questions from members of the media as they attended the Royal Variety Performance on Thursday night.
Nonetheless, when asked whether it was considering legal action, a Palace spokesperson told the BBC: “We’re exploring all options.”
A senior defamation and privacy lawyer said that while there are potential legal avenues open to the Palace, it is unlikely that the courts would find in the royals’ favour. By convention, the Sovereign does not take legal action in the UK courts which bear his or her name and effectively act on the monarch’s behalf, although there is nothing to stop other members of the House of Windsor from suing.
Godwin Busuttil, a barrister at London’s 5RB chambers and whose clients have included Sir Cliff Richard, said the Palace’s insistence that it is considering its options may ultimately lack force. He told i: “What the Palace is communicating at a very basic level is a warning for media outlets to be careful. The problem is that it is not entirely clear what legal action could now be taken that brings with it a likelihood of success.”
Palace sources have reportedly said there is no basis for the claims being made against the royals, leaving it open for lawyers acting on behalf of the Windsors to consider bringing a case for libel against anyone naming Catherine or the monarch. But the introduction of a clarified public interest defence in defamation laws, whereby publishers can argue they reasonably and responsibly reported a matter in the public interest, means such a case would be likely to fail, it is argued.
Mr Busuttil said: “It is open to the royals to sue whoever they want – in theory it could be any outlet which has named them in connection with these particular claims. Whether that would succeed is a completely different question. The law allows for a public interest defence and given we are talking about the royal family and allegations related to matters of race, there is huge public interest in airing such issues.”
The courts have in recent years made increasing use of privacy laws enshrined within human rights legislation to ban the identification of individuals, but again the combination of the stature of the monarchy and a key matter of public debate means such a claim would also be liable to failure, Mr Busuttil said.
He said: “My view is that bringing such a privacy claim is unlikely to succeed because the overwhelming public interest in discussing these issues is liable to be found to override the privacy right… My feeling is that whether it is defamation or privacy that is pursued, it isn’t going to work.”
The Palace did not immediately respond to a request to comment.
Royal aides and onlookers are in the meantime awaiting the results of an investigation by Endgame’s Dutch publisher, Xander Uitgevers, into how the identities of the royals appeared in its Dutch language version of the book. The translators of the text have insisted that the names were in the manuscript provided to them.
Mr Scobie told BBC’s Newsnight on Thursday: “The book I wrote, the book I edited, the book I signed off on did not have names. So I’m as frustrated as anyone else.”
