Informal Advice to the Monarch

I recently stumbled upon a small collection of documents relating to the Northern Ireland (Royal Assent to Bills) Order 1999.[1] That Order in Council established the form of the Letters Patent that the Sovereign uses to signify Royal Assent to legislation passed by the Northern Ireland Assembly.[2] Among the documents are some that shed light on the informal communications between the Government and the Palace that often precede the Sovereign’s participation in a formal act of state.

One of the principal rules of the United Kingdom’s constitutional monarchy is that the Monarch normally acts on the advice of responsible ministers. But as is so often the case with the British constitution, even something like this–which seems straightforward at first glance–turns out to have all sorts of caveats.

In practice, advice can be either formal or informal. This distinction likely arose as a way to harmonize two potentially contradictory aspects of the Sovereign’s role. While they must ultimately act on ministerial advice, they also have the right to be consulted, to encourage, and to warn their ministers. In other words, the Monarch can push back when something is raised as informal advice, but once it becomes formal advice, they must ultimately accept it no matter how unpalatable it may be.[3]

In this case, the Northern Ireland Office wanted to make sure the Queen was content with the wording of the new Letters Patent before the Order was formally made at a meeting of the Privy Council. On February 23, 1999, the Private Secretary to the Secretary of State for Northern Ireland[4] sent the Queen’s Private Secretary the following letter (italics denotes text that was handwritten in the original):

Dear Sir Robin

We have announced our intention to put in place all the legislative preparations necessary for devolution in Northern Ireland by 10 March, even though it seems that the earliest date at which it could be brought about politically is rather late than that.

I am writing in connection with one aspect of this. Bills of the Northern Ireland Assembly (like those of the Scottish Parliament) will require Royal Assent. The Northern Ireland Act 1998 (section 49) permits provision by Order in Council about Letters Patent for signifying such Assent. A draft of such an Order is attached. We have sought, with one eye to the Northern Ireland political context, to use simpler and more contemporary language than in Letters Patent associated with Bills of the Westminster Parliament. Our draft has been discussed with the Privy Council Office, who are content.

The mechanism for submitting Letters Patent will be similar to that for Westminster Bills, except that the Office of the Clerk to the Crown in Northern Ireland rather than the Crown Office will have responsibility for preparing them and sealing them with a Wafer Great Seal of Northern Ireland. Letters Patent will continue to be drawn up in advance of a Bill’s being passed and close liaison will be maintained at all times by the Clerk of the Crown’s Office to ensure the timely submission of Bills. Inevitably, the need to approve Assembly Bills will create additional work for your staff and for Her Majesty, but we are trying to ensure that the process will be smooth.

The Secretary of State would be grateful if you would lay before The Queen the draft of the new Letters Patent. If Her Majesty is pleased to approve them, we hope to submit the Order for making at the meeting of the Privy Council on 10 March.

It would be most helpful if you were able to let me have a reply to this letter by 2 March.

Copies of this letter go for information to the Private Secretaries to the Home Secretary, the Lord President of the Council and the Secretary of State for Scotland.

Yours sincerely

[signature][5]

N P Perry

This letter is quite different from the submissions that constitute formal advice. At least at Westminster, formal advice is often readily identifiable by its unique stylistic aspects, and it’s framed as a direct communication from Minister to Monarch. But informal advice follows the usual rules of official correspondence, and it’s usually addressed to the Sovereign’s Private Secretary rather than the Sovereign. It may also come from a civil servant rather than a Minister, though Ministers may submit informal advice as well.[6]

Perry’s letter provides more contextual information than you would normally find in a formal submission. He reminds Sir Robin of the legal basis for the Order. He highlights the fact that the language of the Letters Patent will be simpler than that used at Westminster and cites Northern Ireland’s unique political situation as a justification for this approach.

The request for royal action is couched in deferential terms. Perry doesn’t explicitly say that the Secretary of State wants the Queen to approve the text; he simply says “the Secretary of State would be grateful if you would lay before The Queen the draft of the new Letters Patent.” Her approval is portrayed as conditional: if she approves the text, it will then be submitted to the PCO in time for the Order to be made on March 10. While formal submissions can specifically recommend that the Sovereign do something, they can also lean into the constitutional fiction that the matter is being submitted for the Monarch’s independent judgment.

Evidently, the Queen didn’t feel the need to encourage or warn anyone regarding the Northern Ireland Letters Patent. The next day, Sir Robin sent Perry a brief reply stating that she had approved the text of the template and noted that the Order would be dealt with at the March 10 meeting. In this case, the informal advice doesn’t appear to have been followed up with formal advice.[7] While the two often go together, there are occasions where informal advice alone seems to be sufficient.[8]

These documents provide an interesting snapshot of the Sovereign’s role in government. Such material is often hard to find when it comes to recent events since communications with the Monarch and their staff are exempt from disclosure under section 37(1) of the Freedom of Information Act 2000. While some formal submissions have been released anyway,[9] the Government is far more reluctant to hand over anything more substantive lest it shed light on the Monarch’s personal views. In many cases, this type of material will not become available to the public until it becomes a ‘historical record’ under the provisions of section 62(1) of the FOIA and is transferred to The National Archives. Until then, glimpses like this one will have to suffice.

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[1] PRONI CENT/1/27/87A.

[2] The Crown Office (Forms and Proclamations Rules) Order 1992 makes analogous provision for Westminster, while The Scottish Parliament (Letters Patent and Proclamations) Order 1999 and The Senedd Cymru (Letters Patent and Proclamations) Order 2021 cover Scotland and Wales respectively.

[3] Anne Twomey has shown how Queen Elizabeth II made it clear to her Australian ministers that she was reluctant to appoint state governors on the advice of state premiers because she worried they might put her in an awkward position vis-à-vis the Commonwealth government. Although state premiers were eager to advise her directly on these appointments, Commonwealth ministers were reluctant to force the issue even though this meant that the British Foreign Secretary would continue to play a role in the appointment of Australian state governors. Eventually, the Commonwealth had a change of heart, and in 1985 the Queen was informed that Prime Minister Bob Hawke would formally advise her to accept direct access from state premiers. Faced with a determined government in Canberra, she had no choice but to back down. See Twomey, The Chameleon Crown: The Queen and Her Australian State Governors (Sydney: The Federation Press, 2006), 222-256.    

[4] Mo Mowlam.

[5] It’s hard to make out the signature, but it seems like the letter may have been signed by someone acting on Perry’s behalf.   

[6] For example, the Australian Prime Minister wrote to the Queen’s Private Secretary when he tendered informal advice regarding direct access by state premiers in 1985. Twomey, 254.

[7] It’s unclear if formal submissions are required for most Orders in Council. It seems unlikely outside of certain specific circumstances (e.g., the appointment of Privy Counsellors). During a Council meeting, the Lord President reads through the List of Business, pausing periodically for the Monarch to say “Approved.” Since the Sovereign’s approval is given verbally, the Lord President’s reading of the titles may well constitute formal advice in this context.

[8] For example, when the Prime Minister seeks the Monarch’s leave to go abroad, the Prime Minister’s Private Secretary makes the request to the Sovereign’s Private Secretary and there doesn’t appear to be a formal submission involved.

[9] Sometimes, the Government releases these documents outside the terms of the FOIA, which is how I managed to obtain a submission from Theresa May recommending the appointment of various ministers.

Royal Incapacity and Medical Procedures

The King returned from the hospital today after undergoing treatment for an enlarged prostate on Friday. According to the BBC, there was no delegation of royal authority during his stay in the hospital. This approach is in marked contrast to that of the United States where Presidents have temporarily transferred their powers to the Vice-President when undergoing major medical procedures. But, as we’ll see, Britain’s existing law surrounding royal incapacity isn’t well suited to this kind of situation.

At first glance, it might seem unnecessary for the King to delegate his powers because of a brief medical procedure. In a constitutional monarchy like that of the United Kingdom, the Sovereign normally acts on the advice of their ministers rather than their own personal judgment. But the popular notion that the Monarch’s role is limited to opening bridges and making polite chit-chat at garden parties is misleading. While their discretion is limited, they are still an important part of the machinery of government. Countless acts of state require their participation, from the appointment of the Prime Minister to the approval of the election of the High Steward of Stratford-upon-Avon.

While many of these matters aren’t particularly urgent and could wait until the procedure was over, there are circumstances where greater celerity would be necessary. For example, only the Sovereign can appoint a Prime Minister. There is no US-style chain of succession allowing another minister to automatically take over in the event the office suddenly becomes vacant. While there may be informal contingency plans in place, only the Monarch can make someone Prime Minister.

It’s not hard to imagine a situation where this could cause a problem. On February 7, 1991, the Irish Republican Army launched a mortar attack on Downing Street while John Major and the War Cabinet were meeting to discuss the Gulf War. If the attack had been successful, it likely would’ve killed the Prime Minister, the Chancellor of the Exchequer, the Foreign Secretary, and the Defense Secretary.[1] Had that occurred, Elizabeth II would have needed to appoint a Prime Minister as quickly as possible, and she would likely have had to exercise her own judgment since there wouldn’t have been time to sound out the Conservative Party.[2] But if the Queen was having an operation and hadn’t permitted anyone else to act on her behalf, it would’ve complicated efforts to ensure continuity of government.[3]

The law does allow others to exercise the Monarch’s functions in certain circumstances. Under the Regency Act 1937, royal incapacity can be dealt with in one of two ways. The most straightforward option is for the Sovereign to delegate their functions to Counsellors of State. These are senior members of the Royal Family who can deputize for the Monarch if they are absent from the UK or ill. But they’re meant to handle routine government business and lack any sort of discretion.[4] There are seven Counsellors of State in total,[5] and while they traditionally act in pairs,[6] the Sovereign technically delegates their functions to all of them.[7] Any Counsellor could theoretically team up with another to exercise the Sovereign’s functions.[8] This could cause problems if they ever needed to exercise independent judgment. What if they had to choose a Prime Minister in a crisis but different Counsellors favored different candidates? There’s no formal mechanism for resolving such a dispute. They could hardly ask the Monarch for guidance if the Sovereign was on the operating table, and it could be a while before the Monarch was able to give a meaningful response.[9]

A regency is the other way of dealing with royal incapacity. The Regent would be the person next in line for the throne,[10] and they would effectively become acting sovereign. With a few exceptions, they would possess the full panoply of royal power and wouldn’t need to act in conjunction with anyone else.[11] But unlike the appointment of Counsellors of State, the Sovereign can’t voluntarily trigger a regency. Instead, certain specified individuals have to declare in writing that the Monarch is incapacitated (or unavailable).[12] This would need to be communicated to the Privy Council and the Commonwealth Realms, and the Regent would have to take an oath before the Council before they could exercise any of the Sovereign’s functions.[13]

When it comes to brief incapacity due to medical procedures, the main problem with a regency is that there’s no way for the Monarch to trigger it on their own ahead of time. It can only be invoked by others.[14] This, coupled with the various procedural hurdles involved, would make it a poor method of responding to a rapidly developing crisis.

Luckily, there’s a simple fix: amend the Regency Act 1937 so the Sovereign can activate (and terminate) a regency on their own initiative. The existing mechanism could remain in place for situations where the Monarch lacks the capacity to determine the need for a regency. But this would allow the Sovereign to ensure there was someone who could effectively respond to any crises that occurred while they were undergoing treatment. Such a change would also make it easier for an aging Monarch to delegate functions to their successor.[15] As life expectancy increases, it becomes more likely that a reign will end in a period of senescence. Since there is currently no way for the Sovereign to abdicate without bespoke legislation in both the UK and the Commonwealth Realms, a voluntary regency would be the best way for the Monarch to divest themself of their duties if they felt they could no longer perform them satisfactorily.[16]

It can be tempting to assume that it’s not worth worrying if anyone can exercise the King’s powers when he’s undergoing medical procedures. After all, the chances of a major crisis developing at the same time are undoubtedly quite miniscule. But it’s important to prepare for the worst, especially when it comes to something like ensuring continuity of government. And while the British constitution’s inherent flexibility might offer some protection, an emergency isn’t the time to be fudging things.[17] Crises require clarity, not confusion.  

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[1] Also present were the Attorney General, the Energy Secretary, the Trade Secretary, the Chief of the Defense Staff and a variety of senior officials.

[2] When Elizabeth II had to choose a Prime Minister following the resignations of Anthony Eden (1957) and Harold Macmillan (1963), she was guided by input from senior Tories. For a discussion of the Queen’s role in these matters, see Ben Pimlott, The Queen: Elizabeth II and the Monarchy, Diamond Jubilee Edition (London: Harper Press, 2012), 353-357 and 437-449

[3] Elizabeth II didn’t delegate her functions even when she underwent two operations on her knees under general anesthetic in 2003. See Rodney Brazier, “Royal Incapacity and Constitutional Continuity: The Regent and Counsellors of State,” in The Cambridge Law Journal, Vol. 64, No. 2 (Jul., 2005), 375.

[4] Section 6(2) of the Regency Act 1937 expressly prohibits Counsellors of State from doing certain things, including dissolving Parliament (except on the Sovereign’s express instructions) and creating peers.

[5] Following the passage of the Counsellors of State Act 2022, the list includes the Queen Consort, the Prince of Wales, the Duke of Sussex, the Duke of York, Princess Beatrice, the Duke of Edinburgh, and the Princess Royal.

[6] When Prince Charles read the Speech from the Throne on his mother’s behalf in May 2022, he was technically acting in conjunction with Prince William. This was made clear by the Letters Patent delegating the Queen’s functions: “We do hereby delegate to the said Counsellors of State (excepting the Duke of Sussex while absent from the United Kingdom) full power and authority to open the new session of Parliament on the tenth day of May in the seventy-first year of Our Reign with the cause of summons being declared by one Counsellor of State in the presence of another” (emphasis added). But while Prince William accompanied his father to Parliament, he played no role in the proceedings.

[7] Section 6(2) of the Regency Act 1937 allows the Monarch to discharge someone from the pool of Counsellors if that person will absent from the UK, but that is the only situation where the Sovereign can explicitly prevent someone from being eligible to carry out delegated royal functions.

[8] Brazier, 377.

[9] As someone who has undergone 20+ operations, I can say from experience that the time it takes to regain one’s faculties following general anesthesia can be quite variable.

[10] If a regency is necessary because the Sovereign is underage, their surviving parent would likely act as regent. For example, the Regency Act 1953 allowed the Duke of Edinburgh to serve as Regent on behalf of Prince Charles instead of the heiress presumptive, Princess Margaret.

[11] Section 4(2) of the Regency Act 1937 forbids a regent from assenting to legislation that would alter the order of succession to the Crown or alter or repeal the Protestant Religion and Presbyterian Church Act 1707.

[12] The relevant individuals are the wife or husband of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls, or any three or more them. See section 2(1) of the Regency Act.

[13] Section 4(1) of the Regency Act 1937.

[14] Brazier has suggested that the Monarch could voluntarily start a regency by asking the designated notables to declare them incapable of discharging their duties, but he notes that this would require a creative interpretation of the existing law. Brazier, 387.

[15] Brazier has proposed an alternative solution whereby the heir to the throne could be empowered to act as ‘Chief Counsellor of State’ (Brazier, 387). However, it’s unclear if this could be achieved without amending the Regency Act. It’s also worth noting that the role of a Counsellor of State is more circumscribed than that of a Regent. Not only are they barred from dissolving Parliament without the Monarch’s permission, but they cannot create peers, either. While the Parliament Acts 1911 & 1949 have made this power less significant than it used to be, there could still be situations where the Sovereign needed to create a large number of peers in order to ensure the passage of legislation in a timely fashion. After all, the process of bypassing the House of Lords takes at least a year.           

[16] Although Elizabeth II allowed her relatives to deputize for her with increasing frequency during the last years of her reign, they did not assume any of her constitutional functions aside from the time when the Prince of Wales and the Duke of Cambridge opened Parliament on her behalf.

[17] It’s one thing to allow Penny Mordaunt to preside over the Accession Council even though her appointment as Lord President hadn’t been finalized. It’s another thing entirely to allow the nation to founder without a Prime Minister because the incumbent was killed while the Sovereign is in surgery and there is no one who can appoint a successor.

Counsellors Of State In The Age Of Remote Work

There’s an interesting detail tucked away near the end of the Letters Patent signifying Royal Assent to the Patient Safety Commissioner for Scotland Bill. The final clause reads “WITNESS Ourself at Kenya on the second day of November in the second year of Our Reign,” meaning the King signed the document while on a state visit to Kenya.[1]

Normally, documents like this would have been signed by a pair of Counsellors of State.[2] These are members of the Royal Family who are allowed to exercise certain royal functions during the Sovereign’s absence from the UK under the Regency Act 1937.[3] As far as I can tell, these provisions were not activated for the King’s trip to Kenya, though they were activated for his personal trip to Romania and his state visit to Germany.[4]  

The fact that the King signed the Letters Patent while overseas raises an interesting question—does the Sovereign still need to appoint Counsellors of State when traveling abroad? They are meant to deal with routine administrative matters such as signing documents or presiding over Privy Council meetings.[5] One of Queen Elizabeth II’s Private Secretaries, Sir Edward Ford, even went so far as to characterize Counsellors of State as “merely a piece of constitutional machinery – the nearest thing to a human rubber stamp that has perhaps yet been devised.[6]”

When George V appointed the first Counsellors of State in 1911, this kind of delegation made sense. He was heading to India for the Delhi Durbar, and he’d be away from the UK for almost three months. Obtaining his signature while he was traveling would’ve been a logistical nightmare, but holding everything until his return would’ve delayed important public business. Allowing others to handle routine matters in his absence was the only viable option under the circumstances.

But things are much different in 2023. Advances in communication mean that the King can perform most of the duties normally entrusted to Counsellors of State even if he’s on the other side of the world. Documents can be sent, signed, and returned in a matter of moments. Even Privy Council meetings and the reception of ambassadors’ credentials can now be done via video link. From a constitutional standpoint, Counsellors of State would seem to be superfluous in the age of remote work.  

Of course, Counsellors of State can still make the King’s life easier. Most royal trips abroad aren’t vacations, and he will usually be busy with a full program of events. Even if it’s technically possible for him to do something remotely, making time in his schedule can still be challenging. That being said, royal trips abroad are shorter than they used to be. Waiting for the King’s return is unlikely to be as disruptive as it would’ve been in the past, so he’d only have to deal with the most pressing business while overseas.[7]

It will be interesting to see if the trend of avoiding the appointment of Counsellors of State continues. If it does, it will be a reminder that the personal preferences of the Sovereign can still impact the constitution.      

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[1] While most Letters Patent are sealed under the authority of a Warrant signed by the King, the sealing of Letters Patent signifying Royal Assent to legislation is authorized by the King’s signature on the document itself.

[2] Even though the eschatocol of these Letters Patent emphasizes the fact that they’re signed by the Sovereign’s own hand, they can be signed by Counsellors of State acting on the Sovereign’s behalf. For example, Queen Elizabeth II explicitly delegated that power to Counsellors of State during her 2015 trip to Malta.

[3] Traditionally, the pool of individuals eligible to serve as Counsellors of State consisted of the Monarch’s spouse and the first four people in the line of succession who are of legal age. However, the Counsellors of State Act 2022 expanded the list to include the Duke of Edinburgh (previously known as the Earl of Wessex) and the Princess Royal.  

[4] Originally, the Letters Patent for the state visit to Germany also referenced a trip to France, but that ended up being postponed at the last minute (thanks to Jack Doyle for reminding me of this!). It doesn’t appear that Counsellors of State were appointed for the rescheduled trip to France, and they don’t seem to have been appointed for the King’s trip to Dubai for the COP28 meeting, either.

[5] Elizabeth II’s decision to entrust the final State Opening of Parliament of her reign to Counsellors of State was a novelty. On the two previous occasions when she was unable to attend the State Opening in person, her speech was read by the Lord Chancellor acting as one of the Lord Commissioners.  

[6] Vernon Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon Press, 1997), 49.

[7] There’s another reason why the King might be reluctant to appoint Counsellors of State: both the Duke of York and the Duke of Sussex are still part of the pool of eligible royals. While the addition of Prince Edward and Princess Anne has made it highly unlikely that either one will ever be called upon to serve, their eligibility still generates adverse publicity from time to time. Parliament could have opted to disqualify Prince Andrew and Prince Harry when it passed the Counsellors of State Act 2022, but it chose not to do so. In time, however, they will be displaced by the Prince of Wales’ children as they come of age.  

The Language Of Ministerial Submissions

One of the foundations of the modern British constitution is the idea that the Sovereign only acts on ministerial advice. However, the relationship between the Monarch and their Ministers is largely shielded from public view, making it difficult to understand how it works in practice.[1] But the material that has trickled into the public domain reveals that Ministers’ communications with the Sovereign are more complex than one might have initially assumed. This post will focus on submissions, which are the most formal type of ministerial communication.[2]

Submissions are often used to transmit a Minister’s advice to the Monarch, though as we shall see, they can be used for other purposes as well. Although their wording varies based on the subject matter, all submissions have some stylistic elements in common. They’re written in the third person, and the writer begins by mentioning their “humble duty” to the Sovereign. This 2014 submission from Theresa May is a typical example:

Theresa May, with her humble duty to Your Majesty, has the honour to recommend that, in the New Year’s Honours List 2015, The Queen’s Police Medal for Distinguished Service be awarded to the police officers of England and Wales and Northern Ireland whose names are given in the attached lists.

Some submissions refer to the Monarch in the third person as well, but the second person appears to be more common.[3]

While the use of the third person is highly unusual by modern standards, it was far more common in the 18^th century.[4] This suggests that submissions arose from ordinary letters, similar to how elements of the everyday fashion of the 18^th century (e.g., knee breeches, stockings, and buckled shoes) lived on in the dress worn at court well into the 20^th century.[5]

Modern submissions are typically brief and to-the-point, and they often make no effort to explain why the Monarch should undertake the action recommended.[6] This was not always the case, however. When Lord Eldon informed George III that the City of London had chosen Charles Flower as their Lord Mayor, he noted that Flower was “a good Magistrate and a loyal subject.[7]” And when the Duke of Newcastle asked Victoria to appoint the Rev. J. W. Colenso as the first Bishop of Grahamstown, he noted that he was second wrangler at Cambridge and a tutor to two of Sir Robert Peel’s sons.[8] More recently, Harold Macmillan’s submission to Elizabeth II recommending that she make her husband a prince cited “the great services which the Duke of Edinburgh has rendered to this country over many years, and his unique contribution to the life of the Commonwealth.[9]” But that approach seems to be rare nowadays. And while many Commonwealth realms have formal policies require formal advice to the Governor General to be accompanied by some form of explanatory material,[10] there doesn’t seem to be a hard-and-fast rule on the matter at Westminster (but see below).[11]

Some submissions are explicitly advisory, such as Theresa May’s submission previously discussed. Others lean into the constitutional fiction that the Sovereign is making an autonomous decision to varying degrees. For example, here is a submission from Robert Buckland regarding the appointment of High Court Justices:

The Lord Chancellor, with their humble duty to Your Majesty, submits for Your Majesty’s approval, if you shall so please, the attached list of names of persons for appointment as Justices of Your Majesty’s High Court.

Also in the event of Your Majesty being graciously pleased to approve the appointment, the Lord Chancellor submits for Your Majesty’s signature, if you shall so please, Warrants for their appointment to be Justices of Your Majesty’s High Court.[12]

Unlike May’s submission, Buckland’s isn’t framed as an overt recommendation. Instead, it speaks of the Queen approving the appointments “if [she] shall so please.” However, the fact that Buckland submits the Warrants for the necessary Letters Patent at the same time makes it clear that the Queen is expected to appoint these individuals to the High Court.[13]

Buckland’s submission seeking the Queen’s approbation for the Lord Mayor-Elect of London is even subtler:[14]

The Lord Chancellor, with his humble duty to Your Majesty, submits to Your Majesty that William Anthony Bowater Russell, has been re-elected by the City of London Lord Mayor for the ensuing year, and will present himself, according to custom, to hear from the Lord Chancellor whether Your Majesty is pleased to approve the re-appointment, and the Lord Chancellor begs leave to ask Your Majesty’s pleasure therein.

This embrace of constitutional fiction contrasts with the practice in many Commonwealth realms where submissions to the Governor General tend to be more explicitly recommendatory. For example, in New Zealand the template for advice from the Executive Council states:

Her Excellency the Governor General is recommended to sign the attached Order in Council…

Similar language can be seen at the federal level in Canada and Australia.[15]

It’s fair to ask why there’s so much variation in British submissions. Other Commonwealth realms often have formal templates for their versions of these submissions, but that doesn’t seem to be the case at Westminster (the Cabinet Office has said they do not have any relevant templates or guidance). Presumably, each department simply follows its own precedents.[16]

Submissions can also be glorified cover letters.[17] Between 1916 and 1939, Cabinet Conclusions were submitted to the Monarch under cover of a submission that began–

The Prime Minister presents his humble duty to His Majesty the King and has the honour to include herewith a copy of the Conclusions of a Meeting of the Cabinet held on…[18]

A modern example of this practice can be seen in Philip Hammond’s submission regarding the Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) (Amendment) Warrant 2012:

Submitted to Your Majesty with Humble Duty:-

That Your Majesty may be graciously pleased to approve the new Royal Warrant that makes provision for Army Pensions.

An explanatory memorandum is attached.[19]

The submission from the Lord Chancellor that accompanies a Commission for Royal Assent can also be said to fall into this category.

In many cases, the Sovereign signifies their acceptance of a submission by writing ‘approved’ along with their initials at the top of the document. This seems to be done even when the submission accompanies a document that requires the Monarch’s signature.[20] It’s not clear when this practice began, though it was definitely in place by Queen Victoria’s reign.[21] Previously, the Monarch often signified their acceptance of ministerial submissions by letter.[22]

Curiously, signed submissions often come up for sale on the autograph market (e.g., this example from 1954). This suggests that, historically, these documents weren’t seen as worthy of permanent preservation. As The National Archives notes in their Records Collection Policy, “[t]he quantity and nature of public records created across government is so vast that The National Archives is physically, and in some cases technically, unable to hold and preserve them all.” In many cases, the submission is only part of a larger process. For example, when someone receives a peerage, the Prime Minister’s initial submission is followed by a Warrant that the Sovereign must sign to authorize the sealing of the Letters Patent. The Crown Office records the Letters Patent in the Patent Roll, and both the Patent Roll entry and the associated Warrant are sent to The National Archives at the end of each regnal year. Consequently, there will still be a record of the Monarch’s actions even if the submission isn’t selected for permanent preservation. 

Walter Bagehot famously divided the British constitution into two parts: the dignified and the efficient. The Monarchy belonged to the ‘dignified’ part, and he believed it existed primarily to make government intelligible to the general public.[23] But the language of ministerial submissions shows that this constitutional fiction isn’t confined to highly visible events like the State Opening of Parliament. That the illusion is maintained outside the public gaze suggests that the efficient part of the constitution isn’t immune to being dazzled by the Crown.   

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[1] The Freedom of Information Act 2000 doesn’t help much. Section 37(1)(a) exempts information relating to communications with the Sovereign from disclosure, and this exemption only expires after 20 years or five years after the Monarch’s death (whichever is longer). There used to be a public-interest test, but it was eliminated in 2010.

[2] This cannot be a comprehensive treatment given the spotty nature of the sources, but I hope this will nevertheless shed some light some light on an often-overlooked aspect of the British constitution. To keep this post manageable, I will only be discussing submissions from Ministers at Westminster. I hope to discuss submissions from Ministers in devolved administrations at a later date.

[3] Theresa May’s 2016 submission recommending the appointment of her administration and David Cameron’s submission recommending that Bob Kerslake receive a peerage both referred to Queen Elizabeth II in the third person. This isn’t just a Prime Ministerial phenomenon, though. Baroness Young’s submission regarding the severance of constitutional links between Australia and the United Kingdom also referred to the Queen in the third person. See Anne Twomey, The Chameleon Crown (Sydney: The Federation Press, 2006), 256.

[4] Grace Egan, “Corresponding Forms: Aspects of the Eighteenth-Century Letter,” PhD diss., (University of Oxford, 2015), 112.

[5] See, for example, any edition of Dress Worn at His Majesty’s Court. While court dress is far less anachronistic than it used to be, similar elements of archaism survive in other contexts (e.g., judicial dress).

[6] In some cases, this information may be conveyed through informal consultations that precede the submission. Anne Twomey has provided a glimpse of how this informal consultation worked in relation to the Australia Acts. See Chameleon Crown, 222-272.

[7] Arthur Aspinall, ed., The Later Correspondence of George III, vol. 5 (Cambridge: Cambridge University Press, 1970), 146.

[8] Arthur Benson and Viscount Escher, eds., The Letters of Queen Victoria: A Selection of Her Majesty’s Correspondence Between the Years 1837 and 1861, vol. 2 (London: John Murray, 1908), 448-449.

[9] See LCO 6/3677 on Heraldica.org.

[10] For example, at the federal level in Australia, the Governor General is provided with explanatory memoranda which set out the purpose of the proposed action, the rationale behind it, and its likely impact as well as the Governor General’s authority for acting. See Commonwealth of Australia: Department of the Prime Minister and Cabinet, The Federal Executive Council Handbook 2021, 14.

[11] Of course, if the Sovereign ever wanted explanatory information, they would almost certainly receive it.

[12] This was released to Crown Office Disclosures.

[13] For an early 19^th-century submission regarding a similar judicial appointment, see Anthony Aspinall, ed., The Letters of King George IV: 1812-1830, vol. 2, (Cambridge: Cambridge University Press, 1938), 242-243.

[14] This was released to me under the FOIA.

[15] See, for example, Privy Council Office [Canada]: Orders in Council Division, Process Guide for Governor-in-Council Submissions (Other than Regulations), 9 and The Federal Executive Council Handbook 2021, 41-47.

[16] The lack of supporting materials also makes the process more streamlined.

[17] Sometimes, documents needing the royal signature are accompanied by documents bearing no resemblance to submissions. They simply say something along the lines of “For Your Majesty’s signature, one Warrant…”

[18] See Part V of “The Cabinet Office Precedent Book” (CAB 181/7), para. 5. For an account of how this custom began, see Stephen Roskill, Hankey: Man of Secrets, vol. 1 (London: Collins, 1970), 340-341.

[19] The presence of an explanatory memorandum is noteworthy. However, the wording of it suggests that it wasn’t drafted for the Queen’s benefit alone. Rather, it appears to be targeted at a wider audience. This may also be a rare example of a template being used for a submission, as I have seen a later example from 2018 where “Submitted to Your Majesty with Humble Duty” had clearly been pre-printed in a cursive font.

[20] The Crown Office’s internal guidance for Royal Assent states that the Palace returns the Lord Chancellor’s submission endorsed by the King along with the signed Commission. See “Royal Assent – Crown Guide 2023” (unpublished).

[21] A 1910 list of autographs for sale includes an 1848 submission from Lord John Russell which the Queen marked in this manner.

[22] See, for example, George III’s acceptance of two ecclesiastical appointments recommended by the Duke of Newcastle in Sir John Fortescue, ed., The Correspondence of King George the Third: From 1760 to 1783, vol. 1 (London: Macmillan and Co., Ltd., 1927), 291-292. Since the office of the Sovereign’s Private Secretary didn’t exist until the 19^th century, these responses were usually written by the King himself.

[23] Walter Bagehot, The English Constitution (London: Chapman and Hall, 1867), 57.

When Is Advice Not Advice?

Back in 2021, I wrote about the confusion over whether or not Boris Johnson had violated section 18 of the Roman Catholic Relief Act 1829 by advising the Queen on ecclesiastical appointments after his (reputed) conversion to Roman Catholicism. One of my followers on the social network formerly known as Twitter, Dr. Benjamin Lewis, made a FOI request to the Cabinet Office on the matter and received a rather unexpected reply. It said:

Under reforms introduced in 2007 by the then Prime Minister, the Rt Hon Gordon Brown, the Prime Minister does not choose or advise on ecclesiastical appointments. His or her role is limited to conveying the name of the nominated candidate to The Queen.[1]

This seems to suggest that, if the Prime Minister does not exercise discretion when recommending an appointment to the Sovereign, they are not offering advice in the constitutional sense. Therefore, there could be no conflict with the Roman Catholic Relief Act 1829. This argument is problematic on several levels, however.

Until the 1970s, Downing Street had unfettered discretion when advising the Sovereign on church appointments.[2] In 1976, James Callaghan announced the creation of the Crown Appointments Commission[3] which provided the Church with a greater say in the appointment of diocesan bishops. However, he noted that “[t]he Sovereign must be able to look for advice on [the appointment of diocesan bishops] and that must mean, for a constitutional Sovereign, advice from Ministers… In giving that final advice, the Prime Minister would retain a real element of choice.”  

Under this system, the Commission would give Downing Street two names for each vacant see. Although the Prime Minister usually recommended the first nominee to the Sovereign, they weren’t obliged to do so. There were several instances where the Prime Minister went with the second name, and Tony Blair even went so far as to reject both of the Church’s proposed candidates for the See of Liverpool in 1997. Gordon Brown gave up that discretion in 2007. Since then, the Commission has only provided the Prime Minister with a single name.[4]

Neither the Roman Catholic Relief Act 1829 nor the Jews Relief Act 1858 (which similarly bans Jews from advising the Monarch on ecclesiastical appointments) define what it means for a person to advise the Crown. In the absence of a statutory definition, it seems safe to conclude that ‘advice’ in this context encompasses a Minister of the Crown’s formal recommendation that the Monarch should appoint someone to an ecclesiastical office.[5] Despite the 2007 changes, the Prime Minister almost certainly continues to make formal submissions to the Monarch regarding ecclesiastical appointments. Indeed, there are other cases where the Prime Minister offers advice even when they aren’t the actual decisionmaker. For example, the Prime Minister still tenders formal advice to the Sovereign on the appointment of the Lord Chamberlain and the Lord Steward even though those offices ceased to be political appointments in 1924.[6]

Consequently, it seems clear that Prime Minister is still offering advice to the Sovereign.[7] As a result, they retain the power to reject the Commission’s nominee or even recommend a candidate of their own choosing.[8] Alternatively, since their Appointments Secretary is still part of the Commission’s deliberations, they can bring their influence to bear before a name is even submitted to Downing Street.[9] Moreover, there are ecclesiastical appointments where No. 10 continues to play a substantive role, such as Crown livings.

Of course, if the Cabinet Office is correct and the Prime Minister isn’t offering advice in the constitutional sense, one could argue the Sovereign isn’t necessarily obliged to accept such a recommendation. Ministerial advice derives its force from the fact that ministers are responsible to Parliament. If Parliament is unhappy with the advice that ministers have been offering, it can bring about a change in the Crown’s advisers.[10] The Crown Nominations Commission, however, isn’t responsible to Parliament at all.[11] It would be interesting to know if the Cabinet Office even considered this point.

Instead of offering clarity, the Cabinet Office has only muddied the waters further.[12] While the prohibition against Roman Catholics and Jews advising the Sovereign on ecclesiastical appointments is long past its sell-by date,[13] the Cabinet Office’s response suggests a level of institutional carelessness about the constitution.[14] This isn’t an isolated incident, either. The last few years have seen a number of instances where those at the heart of Whitehall have seemed oblivious to the complexities of the British constitution. That doesn’t bode well for a system that’s heavily reliant on uncodified conventions.

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[1] Ironically, the Cabinet Office has refused to release information to be on the grounds that doing so would negatively affect the integrity of the senior church appointments system!

[2] From 1964 onward, No. 10 handled the Lord Chancellor’s ecclesiastical patronage as well as the Prime Minister’s.

[3] It became the Crown Nominations Commission in 2003.

[4] A similar change was made to the appointment process for suffragan bishops. However, since the Suffragan Bishops Act 1534 required a bishop to present the Sovereign with two names, the change couldn’t take effect without primary legislation.

[5] The Prime Minister is not the only Minister of the Crown involved with ecclesiastical appointments. The Lord Chancellor makes appointments to benefices valued at less than £20 in The King’s Book on the Sovereign’s behalf in addition to making other appointments that are in the Lord Chancellor’s own gift, while the Chancellor of the Duchy of Lancaster advises the Monarch on ecclesiastical appointments that are in their gift in right of the Duchy.

[6] I’m grateful to Dr. David Torrance for bringing this Written Answer to my attention. Peers chosen by the House of Lords Appointments Commission would be another example.

[7] The appointment of Australian state governors prior to 1986 provides an interesting parallel. Before the Australia Acts, the British Foreign Secretary advised the Queen on the appointment of Australian state governors (and on certain other state matters, such Queensland’s petition to the Judicial Committee of the Privy Council regarding their rights over the seabed). The state governments came to believe that the Foreign Secretary’s role was a formality. However, the Foreign Office believed that the Foreign Secretary retained a real element of discretion when advising the Queen. For more information, see Anne Twomey, The Chameleon Crown: The Queen and Her Australian State Governors (Sydney: The Federation Press, 2006).  

[8] This contrasts with the process for appointing judges, which has been extensively codified in recent years. It’s currently governed by The Judicial Appointments Regulations 2013 which set out the Lord Chancellor’s options when the Judicial Appointments Commission recommends candidates for various judicial offices.

[9] I’ve been told by reliable sources that Downing Street has, in fact, done this.

[10] Parliament itself is, of course, accountable to the electorate.

[11] The Church’s General Synod has some control over the Commission, but it’s not equivalent to Parliament’s control over the Executive. For the relationship between Synod and the Commission, see the Standing Orders 136-141 of the General Synod.

[12] Not only is it unclear if Johnson actually converted to Roman Catholicism, it’s also unclear whether another minister assumed responsibility for advising the Queen on church appointments. Contemporary media reports suggested that the Lord Chancellor had taken on that role, but the accuracy of those claims is uncertain.  

[13] Even if the Prime Minister regained full discretion over ecclesiastical appointments, it would be extraordinarily difficult for them to fill the Church of England with Jesuits and rabbis.   

[14] If Johnson did convert to Roman Catholicism, all he would’ve had to do to comply with law is allow another minister to advise the Queen on church appointments. While primary legislation was needed to allow the Lord Chancellor’s ecclesiastical responsibilities to be transferred to another Minister in the event of the office being held by a Roman Catholic, this would not be necessary in the case of the Prime Minister. Not only does the Lord Chancellor exercise some patronage by virtue of their own office, their role in making appointments on the Sovereign’s behalf was formally declared in Parliament under Edward III (see Rot. Parl. 4 Edw. 3). Conversely, the Prime Minister’s role is limited to advising the Monarch and is solely a matter of convention.

Why Did Fake French Dukes Attend British Coronations?

While reading Leopold G. Wickham Legg’s account of the Coronation Banquet in his English Coronation Records, I was struck by the following passage:

On the King’s left hand there are also three tables. At the first sit the “Dukes of Normandy and Aquitaine,” the King’s officers…[1]

I immediately wondered why the Dukes of Normandy and Aquitaine had their titles placed in scare quotes. My curiosity piqued, I did a bit of digging and stumbled upon something rather strange: they weren’t actual dukes at all. Today, we’re going to look at why a pair of fake French dukes attended British coronations for hundreds of years.

English monarchs claimed the French throne from the 14^th century onward. When Charles IV of France died in 1328, he had no direct male heir. The English king, Edward III, was Charles’ nephew through Charles’ sister, Isabella. French law didn’t allow women to inherit the throne, but Edward and his supporters argued that a woman could pass a claim to the crown on to her sons. The French rejected this on the grounds that a woman couldn’t transmit a right that she herself could not enjoy,[2] and the throne ultimately went to one of the late king’s cousins in the male line, who reigned as Philip VI. Edward initially accepted this, even doing homage to Philip for the Duchy of Aquitaine. But the two men fell out in 1337 and started the Hundred Years’ War, leading Edward to reassert his claim to the French throne and start using the title ‘King of France’ in 1340.

Aside from brief periods in the 1360s and 1420s, English (and later British) monarchs continued to style themselves Kings/Queens of France even though they ceased to control any territory in mainland France following the loss of Calais in 1558.[3] Following the union of Great Britain and Ireland, George III dropped ‘King of France’ from the royal style and title and removed the French fleur de lys from the royal arms in January 1801.[4] The United Kingdom formally recognized the French Republic in the Treaty of Amiens the following year.

It’s not entirely clear how the Dukes of Normandy and Aquitaine[5] came to be represented at the English coronation, though both titles have connections with the English crown.[6] Across the Channel, the dukes were among the Twelve Peers of France,[7] each of whom played a special role at French coronations. Over time, many of those peerages came to be held by the King of France, so he would nominate someone to represent these titles at his coronation.[8] It’s also not certain when this custom was imported to England. Thomas Hearne suggested that it may have been introduced by William the Conqueror in 1066 in order to emulate the pomp of a French coronation, though he stressed this was conjecture on his part.[9] Legg, on the other hand, claimed that the ducal stand-ins aren’t attested until the coronation procession of Richard III in 1483.[10]

The impersonators of the Dukes of Normandy and Aquitaine as depicted in Hollar’s etching of Charles II’s coronation procession.

The men impersonating the dukes appear to have been chosen by the Sovereign, though they weren’t nobles themselves.[11] They wore crimson velvet robes of state furred with ermine[12] as well as “peculiar hats.[13]” At Charles II’s coronation in 1661, they’re described as “Capps of Cloth of Gold lined with Ermine.[14]” If Wenceslaus Hollar’s etching of Charles II’s coronation procession is any indication, they resembled caps of maintenance with brims.

The dukes took part in the procession from the Tower of London to Westminster where they enjoyed an exalted place right after the real dukes of the realm.[15] During the service in Westminster Abbey, they appear to have donned their caps alongside the peers at the moment of crowning.[16] And at the Coronation Banquet in Westminster Hall, they enjoyed a place of honor alongside the King’s officers, dukes and duchesses, and marquesses and marchionesses.[17] On at least one occasion, the fake dukes were knighted toward the end of the banquet.

The fake Dukes of Normandy and Aquitaine last appeared at the coronation of George III in 1761. Legg suggested that their disappearance from the ceremony was a consequence of Britain abandoning its claim to the French throne.[18] This certainly seems plausible.[19]  

The curious story of the fake Dukes of Normandy and Aquitaine is a reminder that, like the British constitution itself, the coronation is a complex entity fashioned from a dizzying array of disparate elements. It also shows that the coronation has always been a living ceremony that has evolved in light of changing circumstances.      

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[1] Leopold G. Wickham Legg, ed., English Coronation Records (Westminster: Archibald Constable & Co. Ltd., 1901), lxiv.

[2] Or, to use the Latin maxim, Nemo plus juris ad alium transfere potest quam ipse habet.

[3] They did, however, retain sovereignty over the Channel Islands. Although Henry III of England renounced his claim to Normandy with the Treaty of Paris in 1259, the British monarch is still sometimes referred to as ‘Duke of Normandy’ within the Channel Islands. For example, the King’s accession proclamation in Jersey ended with a reference to “His Majesty, our Duke”.

[4] They remain in the Canadian Royal Arms to this day, though there they symbolize Canada’s French legacy rather than the British claim to the French throne.

[5] The Duke of Aquitaine was sometimes referred to as the Duke of Guienne, both in France and England.

[6] William I (also known as ‘William the Conqueror’) was originally Duke of Normandy, and while the ducal title initially went to his eldest son Robert Curthose upon his death in 1087, it subsequently passed in and out of English control until Philip II of France finally conquered Normandy for the French crown in 1204. The Kings of England became Dukes of Aquitaine following Henry II’s marriage to Eleanor, Duchess of Aquitaine, in 1154. Initially, her male relatives ruled as dukes through her. When she died in 1204, her son King John finally became duke in his own right, and his successors remained Dukes of Aquitaine until the mid-14^th century when their Aquitanian title was upgraded to ‘lord.’ The French claimed the territory, however, and several dauphins were created Dukes of Aquitaine. Following the end of the Hundred Years’ War, Aquitaine finally came under the definitive control of the French crown.

[7] The French use the term ‘peer’ or pair a bit differently than the English. In France, it refers to a special status akin to that of Grandee of Spain. There were six ecclesiastical peers (the Archbishop of Remis and the Bishops of Laon, Langres, Beauvais, Chalons, and Noyon) and six lay peers (the Dukes of Burgundy, Normandy, and Aquitaine, and the Counts of Toulouse, Flanders, and Champagne).

[8] Thomas Hearne, “An Enquiry into the Origins and Cause of our having a Champion to appear, and the Dukes of Normandy and Aquitaine represented at the Coronation,” in The Aberdeen Magazine for the Year MDCCLXI (Aberdeen: Francis Douglas, 1761), 534-535.

[9] Hearne, 534-535.

[10] Legg, xxiii. While he doesn’t cite a specific source, the fake dukes are mentioned in “The Little Device for the Coronation of Richard III” published in Ann F. Sutton and P. W. Hammond, eds., The Coronation of Richard III: The Extant Documents (Alan Sutton Publishing, 1983), 213, 215.

[11] By the early modern period, they often held the rank of ‘Gentleman of the Privy Chamber.’

[12] Legg, 278.

[13] Legg, xxiii.

[14] Legg, 278.

[15] Legg, xxiii.

[16] See, for example, Francis Sandford, The History of the Coronation of the Most High, Most Mighty, and Most Excellent Monarch James II (London: Thomas Newcomb, 1687), 95.

[17] Legg, lxiv.

[18] Legg, xxiii.

[19] The Dukes of Normandy and Aquitaine weren’t the only relics of English rule in France to survive into the modern age. The House of Lords continued to appoint receivers and triers of petitions for Gascony until 1886. See Sir William Anson, The Law and Custom of the Constitution, 4^th edition, vol. 1: Parliament (Oxford: Clarendon Press, 1911), 369-70.

Some Thoughts On The (Re)creation Of The Dukedom Of Edinburgh

Buckingham Palace announced today that, as was widely expected, the Earl of Wessex will be created Duke of Edinburgh. However, the title will apparently be granted for life only, which is unusual by modern standards.

Aside from some isolated creations of life peerages in the medieval and early modern periods,[1] the English (and later British) peerage was overwhelmingly hereditary until the latter half of the 20^th century. However, the emphasis on heredity made it difficult to inject fresh talent into the House of Lords since ministers were reluctant to ennoble someone unless his family could maintain the social standards of the peerage for generations to come.[2]  

Matters reached a head in the mid-19th century. The House of Lords desperately needed peers with legal training to help with its judicial work, and in 1856, the Government advised Queen Victoria to confer a barony for life upon the jurist Sir James Parke, and he was duly ennobled as ‘Lord Wensleydale.’ But the legality of his creation was questioned, and the matter ended up before the Lords’ Privileges Committee. It ultimately held that the Crown couldn’t use the prerogative to create life peers with a seat in Parliament.[3]

Although the Wensleydale decision left open the possibility of creating life peerages without a seat in Parliament, that wouldn’t have allowed Sir James to take part in the Lords’ judicial work.[4] Later statutes would explicitly allow the Crown to appoint people to the House of Lords for life. At first, this power was only used to add Law Lords to the House under the Appellate Jurisdiction Act 1876, but the Life Peerages Act 1958 finally allowed the Crown to make anyone a life peer with a seat in the Lords.

However, Prince Edward’s title will not be a typical life peerage since life peerages under the 1958 Act are restricted to the degree of baron.[5] Instead, his new title will be created entirely under the prerogative, and so it won’t give him a seat in Parliament. This would’ve seemed highly irregular in 1856, but the removal of most hereditary peers from the House of Lords in 1999 means there is now a large segment of the peerage outside Parliament.

One minor issue is that the wording of instruments passed under the Great Seal is governed by rules made under the Crown Office Act 1877. In the case of Letters Patent conferring peerages, they are contained in The Crown Office (Forms and Proclamations Rules) Order 1992. The form of a duke’s Letters Patent is set out in Form A of Part III of the Schedule. While The Crown Office (Forms and Proclamations Rules) (Amendment) Order 2000 deleted the language about sitting in Parliament from the patents of dukes, marquesses, earls, viscounts, and (hereditary) barons, the authorized text of the instrument still refers to the dignity itself being hereditary.

Some have argued on Twitter that Prince Edward’s dukedom could effectively be turned into a life peerage by instituting a remainder to the Crown. In other words, the title would technically be hereditary, but instead of descending to his son, it would go to the Crown upon his death.[6] This might not be necessary, though. Section 2(1) of the 1992 Order states that “[f]or any document to which this Rule applies, the form of words to be used shall be that set out in the Schedule, subject only to such variations as are specified in the Schedule itself or are necessitated by the circumstances to be provided for in the document” (emphasis added). This provision arguably offers sufficient latitude to make the dukedom into a life peerage.

At the moment, it’s not clear if Prince Edward’s new title is a one-off development or part of a wider change in policy. Giving members of the Royal Family peerages for life aligns with the King’s stated preference for a smaller pool of ‘working royals’ drawn from the people closest to the Sovereign. If this is indeed part of a wider change, it would probably be prudent to amend the 1992 Order to remove all references to hereditary descent from the various Letters Patent.[7] After all, the whole point of Orders under the Crown Office Act 1877 is to standardize the language used for instruments that pass under the Great Seal.

Finally, there is some confusion about the role of the Government in granting this title. Many people seem to think that the King is doing this entirely on his own, but that’s not the case. Even when an act is instigated by the Monarch, the Government is still involved in the process. The Prime Minister must still offer formal advice recommending that the title be conferred, while the Lord Chancellor must countersign the Warrant for the Great Seal and authorize the actual sealing. For example, when the late Queen made her husband a prince, she only did so after extensive discussions between the Palace and Whitehall.[8]

It’s ironic that, in making his brother a duke for life, the King is using a very old power to accomplish a very modern objective. It could even have an impact outside the Royal Family. Formerly, Prime Ministers were offered hereditary earldoms after leaving office, but life baronies became the norm during the latter half of the 20^th century.[9] But it’s now been over 30 years since a former Prime Minister made their way to the Upper House, suggesting that a seat on the red benches holds little appeal for modern occupants of No. 10. Perhaps earldoms for life are the answer. Only time will tell.

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[1] A partial list can be found in Francis Palmer, Peerage Law in England (London: Stevens and Sons, Ltd., 1907), 85-86. Other examples are in John Wallis, ed., Reports of State Trials, vol. 8, (London: Her Majesty’s Stationery Office, 1898), 515 n. b (the note actually begins on the previous page).

[2] Peers weren’t supposed to engage in trade or salaried work, so landholding was the main socially acceptable way for them to make money. There was also a fear that peers without sufficient means might sell their votes to Ministers. For a contemporary discussion of the importance of wealthy peers to the constitution, see Sir Nicholas Nicolas, “A Letter to the Duke of Wellington on the Propriety and Legality of Creating Peers for Life,” 2^nd edition (London: William Pickering, 1830).

[3] The Committee’s proceedings in the Wensleydale Peerage Case can be found in Wallis, 479-722.

[4] He was created Lord Wensleydale for a second time, this time as a hereditary baron.

[5] Section 1(2)(a).

[6] The patents for dukes, marquesses, earls, viscounts, and (hereditary) barons all have footnotes stating that “This form may be varied as required for the insertion of special remainders or any special grants directed by Her Majesty’s commands.”

[7] It seems highly unlikely that anyone is going to receive a hereditary peerage.

[8] Similarly, the Government worked with George VI to come up with a way to deny Wallis Simpson the style of ‘Royal Highness.’ Many documents from that process can be found on the always-useful Heraldica.org.  

[9] Harold Macmillan bucked the trend by becoming Earl of Stockton in 1984.

A Tempest In A Teacup?

The King had tea with the European Commission President, Ursula von der Leyen, yesterday. At first glance, this might seem like a standard diplomatic nicety, but it took place against a backdrop of tensions between the United Kingdom and the European Union over the implementation of the Northern Ireland Protocol.[1] Buckingham Palace emphasized that this meeting was held on the Government’s advice: “The King is pleased to meet any world leader if they are visiting Britain and it is the government’s advice that he should do so,” said a Palace spokesperson. However, a Downing Street spokesperson muddied the waters by stating that “[i]t’s for the King to make those decisions.”

That statement is unfortunate from a constitutional standpoint. One of the core principles of modern monarchy is that the Sovereign acts on the advice of ministers, and ministers assume responsibility for the Monarch’s public acts. This is particularly important when the Sovereign’s actions might generate controversy, as is the case here. A range of figures from across the political spectrum have criticized the meeting, and if ministers miscalculated when they advised the King, they need to own their mistake instead of trying to pass the buck.[2]

This behavior is even more remarkable when you consider that ministers have traditionally gone to great lengths to avoid embarrassing the Monarch. For example, efforts to allow Australian state premiers to advise Queen Elizabeth II directly on the appointment of state governors failed for many years because ministers in both Australia and the UK worried that it could place her in an awkward position.[3]

Modern politicians seem far less reluctant to embarrass the Sovereign. Indeed, the past few years have seen elements of the Government take an increasingly cavalier approach toward the Crown. The prorogation dispute of 2019 is probably the most high-profile example. In his willingness to ‘get Brexit done,’ Boris Johnson asked the late Queen to sanction an act that many people, including a unanimous Supreme Court, regarded as profoundly undemocratic. Although she acted within the bounds of constitutional propriety, the optics were terrible.

That same year also saw media reports that Johnson would refuse to step down if he lost the confidence of the Commons, with a ‘senior No. 10 source’ telling The Sun that “Boris won’t resign even if he loses a no confidence vote, and it is not within the sovereign’s constitutional powers to make him. The Lascelles Principles make this clear. The PM will advise the Queen of that and she must follow her Prime Minister’s advice. That’s how this country works.” Luckily, that scenario never came to pass. But if the Queen had dismissed Johnson after he lost a no-confidence vote, there’s every reason to think he wouldn’t have gone quietly. After all, The Sun’s source also said “[w]e said we will deliver Brexit by October 31 by all means necessary and we meant it.[4]” The fact that these things happened under a Conservative administration makes it all the more astonishing.

So why is this happening? I suspect it can be chalked up to a more bare-knuckled style of politics that wants to win at all costs plus a hefty helping of cluelessness regarding the intricacies of the constitution. It’s a worrying development that could have major repercussions for the Monarchy. Traditionally, the Monarch is supposed to be the ultimate umpire of the constitution. In the past, they could safely stand up to the Government when necessary because they didn’t have to worry about fighting ministers in the court of public opinion. But if ministers are no longer willing to shield the Sovereign from controversy, their ability to police the constitution will almost certainly be diminished.

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[1] After much negotiation, the UK and the EU have agreed to the Windsor Framework which aims to address many of these issues. Von der Leyen and Rishi Sunak formally unveiled the proposal at a joint press conference earlier in the day.  

[2] It seems the Government itself may have had misgivings about the propriety of asking the King to meet with her. Over the weekend, the BBC’s Chris Mason suggested that there were some “some strong words being exchanged within Whitehall about the whole idea of offering a meeting with the King so close to a major political moment.”

[3] Ministers took their lead from the Queen herself, who harbored significant misgivings about the prospect of receiving direct advice. For a detailed account of the Queen’s role in the process that led to the passage of the Australia Act 1986, see Anne Twomey, The Chameleon Crown: The Queen and Her Australian Governors (Sydney: The Federation Press, 2006). A briefer account by the same author can be found here.

[4] Even if Johnson kept uncharacteristically quiet, his associates might well have taken up cudgels on his behalf.

What Is Section 35 Of The Scotland Act?

After weeks of speculation, the Secretary of State for Scotland, Alister Jack, has blocked the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent. The law seeks to simplify the process of changing one’s legal gender in Scotland,[1] and Jack has justified his actions on the grounds that the Bill would have an adverse impact on matters reserved to Westminster.[2]

Unlike at Westminster, where Royal Assent is essentially automatic,[3] the Scotland Act 1998 created a formal mechanism for withholding Royal Assent to Scottish legislation. Strictly speaking, it’s not a veto: the Presiding Officer of the Scottish Parliament simply doesn’t submit the Bill to the King. There are several situations in which Assent might be withheld, such as when the UK Supreme Court rules that legislation is ultra vires.[4]

However, this case involves section 35 of the Scotland Act. It allows the Scottish Secretary to block a Bill if they believe that it “would be incompatible with any international obligations or the interests of defence or national security” or it makes “modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.[5]” This is done by a Statutory Instrument which is subject to negative procedure in the UK Parliament.[6]

While Scottish Bills have been blocked on other grounds, this is the first time that a Bill has been blocked under section 35.[7] The Scottish government has vowed to challenge Jack’s decision in the courts, but it’s unclear how this might play out, as the court have never had to interpret this provision before. The British government claims the Gender Recognition Bill would negatively impact the operation of the UK’s Equality Act 2010.[8] They also argue that having a situation where a person’s recognized gender depends on their location within the UK is inherently problematic. However, legal commentators such as Adam Wagner and Lord Falconer of Thoroton have questioned whether the impact on reserved matters is as substantial as the UK government alleges.

Whatever the courts decide, it could have far-reaching consequences for the Britain’s constitution. The flow of power away from Westminster allows different parts of the kingdom to pursue different policies, and they will sometimes come into conflict with one another. If the UK is going to continue, the British will need to decide how they’re going to balance local autonomy and national integrity.[9]        

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[1] Among other things, it allows people to apply for a Gender Recognition Certificate starting at 16 rather than 18, and a formal diagnosis of gender dysphoria will no longer be required. The Bill’s Explanatory Notes provide a more detailed explanation of its provisions.

[2] A summary of the Secretary of State’s reasoning can be found in The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023, but the British government has also produced a policy paper that goes into more detail.

[3] Erskine May provides an overview of Royal Assent practice at Westminster. It specifically highlights the fact that Assent “must be forthcoming.”  

[4] Section 32 of the Scotland Act 1998 sets out the circumstances in which the Presiding Officer cannot submit a Bill for Royal Assent.

[5] ‘Reserved matters’ are ones that are the exclusive preserve of Westminster as set out in Schedule 5 of the Act. If a matter isn’t on that list, it’s considered devolved.

[6] These instruments can be annulled by the King if either House of Parliament passes a ‘prayer’ to that effect.

[7] In 2021, the UK Supreme Court ruled that portions of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill exceeded the Scottish Parliament’s legislative competence. Last year, the Supreme Court held that the Scottish Parliament could not unilaterally legislate for an independence referendum, but those proceedings did not involve a completed Bill.

[8] Perhaps anticipating this argument, clause 15A of the Bill states that “[f]or the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”

[9] Canada and Australia both offer possible solutions, though implementation might require a codified constitution.

Goodbye Court Of Claims, Hello Coronation Claims Office

Last week, the Cabinet Office announced the creation of a Coronation Claims Office that will decide who gets to perform certain ceremonial services connected with the King’s coronation. They have three sources:[1] hereditary rights, appanages to an office or title, or land tenure by grand serjeanty.[2] The last category is by far the most common.[3]

Coronation services can be quite varied. The right to present the Sovereign with three maple cups, the right to make wafers, the right to present a glove for the Monarch’s right hand, and the right to present the Sovereign with a towel when they wash before the Coronation Banquet have all been the subject of coronation claims.[4] However, modern monarchs have generally dispensed with services related to the Coronation Banquet or the Coronation Procession. Performing a coronation service is traditionally seen as a matter of prestige, and people have gone to great lengths to defend their claims over the years. For example, when the Court of Claims accepted Henry Scrymgeour-Wedderburn’s claim to be Hereditary Standard-Bearer of Scotland in 1902, the Earl of Lauderdale sought relief from the Scottish courts. The dispute went all the way to the House of Lords.[5]

The earliest record of coronation claims being formally adjudicated comes from the coronation of Richard II in 1377.[6] Initially, they were entrusted to the Court of the Lord High Steward,[7] but from the coronation of Henry VIII onward, they would be heard by a dedicated commission that became the Court of Claims.[8] In modern times, that body was appointed by Royal Proclamation.[9] A wide range of individuals were appointed to the Court, including Royal Dukes, high-ranking prelates, Ministers of the Crown, and senior judges.[10] Most appointments were pro forma, and the Court’s day-to-day work was carried out by members who were professional jurists.[11]

Many claims were granted without much fuss. For example, the Court of Claims for Elizabeth II’s coronation declared that, if a claim had been accepted for her father’s coronation, the claimant only needed to submit a formal petition restating their claim and it would be approved, provided it was unopposed.[12] The strict rules of evidence might be disregarded and formalities kept to a minimum.[13] Not surprisingly, judgments tended to be quite brief. In the words of Sir Gerald Wollaston, “it must be borne in mind that they are in no sense the considered judgments of an ordinary High Court, but partake more of the nature of judgments in summary proceedings.[14]” Because its rulings were so terse, the Court didn’t always feel obliged to follow precedent.[15]

It will be interesting to see how this new approach works out. In theory, it should be possible to resolve most coronation claims administratively, but things could get sticky if any of the claims are contested.[16]  In this litigious age, people may be even more willing to lawyer up if they don’t get their way. If the Coronation Claims Office produces a flurry of applications for judicial review, the Court of Claims may yet make a comeback down the line.   

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[1] Leopold G. Wickham Legg, English Coronation Records (Westminster: Archibald Constable & Co. Ltd., 1901),lxviii.

[2] Grand serjeanty was a form of feudal tenure where someone held land from the Crown in exchange for performing a service. While 12 Charles 2 c. 24 abolished many of the traditional feudal obligations, section 7 of the Act preserved honorary services of grand serjeanty.

[3] According to Sir Gerald Woods Wollaston, the Lord Great Chamberlainship and the carrying of the Sovereign’s spurs were the only hereditary duties that were commonly accepted by the Court of Claims, while the claim of the Bishops of Durham and Bath and Wells to support the Sovereign during the coronation were the only duties that were attached to a title. Wollaston, Coronation Claims, 2^nd edition (London: Harrison and Sons, 1910), 13-16.

[4] Wollaston, 17.

[5] In Earl of Lauderdale v. Scrymgeour-Wedderburn [1910] UKHL 532, the House of Lords upheld Scrymgeour-Wedderburn’s claim. The dispute was revisited in 1952 when the Lord Lyon ruled that the Earl of Lauderdale could bear the National Flag of Scotland (i.e., the Saltire) while the Earl of Dundee (heir to the Scrymgeour-Wedderburn family) could bear the Royal Banner of Scotland.  

[6] Less formal efforts to handle claims can, however, be found as early as 1236. Legg, lxvii.

[7] The Lord High Steward is the first of the Great Offices of State, and he formerly had judicial duties including presiding over the trials of peers in the House of Lords in cases of impeachment as well as felonies. He also carries St. Edward’s Crown at the coronation. The office was once hereditary, but after 1421 it has only been appointed on an as-needed basis. With the decline in impeachment and the abolition of separate felony trials for peers, the Lord High Steward is now only appointed for a coronation. Somewhat confusingly, there is also a Lord Steward who is a regular officer of the Royal Household, though his duties are largely ceremonial.

[8] A commission determined claims for the coronation of Henry VII, but it had been appointed to execute the office of Lord High Steward instead of being focused on coronation claims as was the case for subsequent coronations. Wollaston, 12.

[9] Although the wording of the Proclamation seems to imply that there might be a separate Commission under the Great Seal, this does not appear to be the case. Wollaston only included the Royal Proclamation in his account of the Court of Claims for Edward VII’s coronation, suggesting that it was the only instrument involved in establishing the Court.

[10] For Victoria’s coronation, every Privy Counsellor was appointed to the Court, but Edward VII reverted to the practice of naming individual members.

[11] Wollaston, 317-320 lists the judicial members of the Court of Claims from Henry VIII to William IV.

[12] This approach was already in place for Edward VII’s Court of Claims. Wollaston, 26.

[13] Wollaston, 29-30.

[14] Wollaston, 20.

[15] Wollaston, 33.

[16] If necessary, the King could presumably refer the matter to the Judicial Committee of the Privy Council.