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.

Some Thoughts On Counsellors Of State

The Counsellors of State Bill cleared the House of Lords yesterday. Counsellors of State are members of the Royal Family who carry out the Sovereign’s functions if they are ill or absent from the United Kingdom, and this Bill would add the Earl of Wessex and the Princess Royal to the pool of people who are eligible to serve. [1]   

Under the Regency Act 1937, the Queen Consort and the first four people in line for the Throne who are of legal age are eligible to be Counsellors.[2] Because the Prince of Wales’ children are too young, the Duke of York and the Duke of Sussex remain on the roster. This is awkward given that neither one is a ‘working royal’ and Prince Harry also lives in America. While the King can excuse someone if they will be absent from the UK, he can’t substitute anyone in their place.

Historically, Counsellors have had a limited constitutional role. Sir Edward Ford, one of the late Queen’s Private Secretaries, once characterized them as “merely a piece of constitutional machinery – the nearest thing to a human rubber stamp that has perhaps yet been devised.[3]” Similarly, Lord Janvrin (another ex-Private Secretary) emphasized that “the Bill is about process and good administrative practice; namely, the expeditious execution of formal government business. It is not about policy matters or wider royal matters such as finances, programmes, major speeches or other royal activities which are the subject of continuous formal and informal discussion between the Government and the Palace.[4]”

As a result, Counsellors have usually handled routine business such as signing state papers and holding Privy Council meetings. Last May, however, they opened Parliament for the first time.[5] Traditionally, Counsellors act in pairs, which is why Prince William was present alongside his father at the State Opening even though he did not read any of the Queen’s Speech.

Adding the Princess Royal and Prince Edward to the list will help ensure that neither Prince Andrew nor Prince Harry need to act as Counsellors. They will, however, retain their eligibility. Whether this compromise will satisfy the public remains to be seen. Although Prince Andrew has not served as a Counsellor since stepping back from royal duties, the fact that he remains one on paper is a perennial source of controversy. While much of this controversy is manufactured and ill-informed, it still has the potential to cause headaches for the Palace. Lord Berkeley tabled an amendment to the Bill to formally exclude Prince Harry and Prince Andrew, but he ended up withdrawing it in the face of opposition from the Government.

The present Bill addresses the most immediate problem, but there are other issues that warrant consideration. Given the limited nature of the role, it’s fair to ask if the position of Counsellor of State needs to be strictly limited to people at the top of the line of succession. In practice, the Sovereign would probably still turn to them even if they had a free choice but loosening the rules would allow more flexibility. It would avoid the need for a new Act of Parliament every time the rules needed to be tweaked. Viscount Stansgate tabled an amendment that would have allowed the King to designate additional Counsellors by an Order in Council subject to affirmative procedure. However, like Lord Berkeley, he withdrew it when it became clear that the Government wouldn’t support it.

The practice of requiring Counsellors of State to act in pairs could also be done away with. The fact that Prince Charles could only open Parliament alongside his son must’ve struck the casual observer as more than a little odd. There’s no real justification for the ‘buddy system’ beyond the fact that it’s tradition.[6] When Elizabeth II traveled to Malta in 2015, she allowed a single Counsellor to perform investitures though they had to act jointly when carrying out other royal functions. However, an investiture is a purely ceremonial matter, and it’s not clear if the Sovereign’s constitutional functions could be entrusted to a single Counsellor.[7] However, before the Regency Act 1937 created a statutory regime for the delegation of royal power, the Prince of Wales frequently presided over the Privy Council when Edward VII was out of the country and he did so on his own.[8]  

Allowing a single Counsellor to act could also make things easier if they ever needed to make a substantive decision. It’s simply a matter of custom that they’ve mostly been confined to routine matters until now, and they could one day be forced to assume a larger role. But the law is silent as to how they could arrive at a decision if that were necessary, and it doesn’t address what happens if the Counsellors themselves can’t agree on a course of action. They may not be able to seek direction from the Monarch, especially if the Sovereign is ill.[9] Ministerial advice may not be an option, either.[10] In extremis, it would be possible to get around the situation by declaring a regency, but that would take time.[11] It may seem silly to worry about far-fetched scenarios, but it’s always a good idea to prepare for the worst.[12]

It’s also fair to ask if Counsellors of State need to have their powers restricted by statute. The 1937 Act prohibits them from dissolving Parliament except on the express instructions of the Sovereign and granting any peerages.[13] If the Monarch was unable to give permission, Parliament couldn’t be dissolved unless they recovered or a regency was declared. The power to confer peerages is less important, but that prohibition could still cause difficulties (e.g., if the Government wanted to appoint someone to the House of Lords so they could take office as a minister).

It’s important to get the law surrounding Counsellors of State right because they could play an increasingly important role in the years to come. As people live longer, it bolsters the likelihood that a typical reign will end in a period of senescence. The obvious solution is to engage in the sort of ‘job sharing’ that marked the late Queen’s final years. She didn’t delegate her constitutional functions (aside from a single State Opening), but her successors may wish to do so without triggering a formal regency.[14] Opening up the pool of candidates, allowing a single Counsellor to act, and removing unnecessary restrictions on their powers could prove helpful if they were ever needed for an extended period of time.   

The Government has signaled that it wants to get the Counsellors of State Bill onto the statute book as quickly as possible, so substantive changes to the role are unlikely to happen any time soon. But with a 74-year-old King on the throne, it would be prudent to make sure the law is as robust as possible without too much delay.    

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[1] Puzzlingly, the Bill refers to Prince Edward as both ‘Earl of Wessex’ and ‘Earl of Wessex & Forfar,’ though the latter style is restricted to the preamble which quotes the King’s Messages to Parliament. Prince Edward was initially created Earl of Wessex in 1999, and in 2019 he received the additional title of Earl of Forfar. At the time, the Palace implied that the title was only for use in Scotland, but lately he’s been using both titles.

[2] See section 6(2) of the Regency Act 1937.

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

[4] HL Debates, 21 November 2022, col. 1184.

[5] Previously, Lords Commissioners would open Parliament if the Sovereign was indisposed. They are peers who are Privy Counsellors, and they also signify the Sovereign’s Assent to legislation and prorogue Parliament at the end of a session.

[6] Historically, the minimum number of Counsellors required to act sometimes varied. Two was the norm, but in December 1928, George V required them to act as a trio. The practice of requiring multiple individuals to deputize for someone else can be found elsewhere in the British constitution. For example, Prorogation and Royal Assent are entrusted to three or more Lords Commissioners while Commissioners of the Great Seal must act in pairs or trios depending on what they’re doing.

[7] Rodney Brazier has argued that this is possible, see his “Royal Incapacity and Constitutional Continuity: The Regent and Counsellors of State,” in The Cambridge Law Journal, Vol. 64, No. 2 (Jul., 2005), 379. However, the fact that Prince Charles had to open Parliament alongside his son in May 2022 suggests that HM Government may have taken a different view.

[8] According to Sir Almeric FitzRoy, similar arrangements had been in place during the last years of Victoria’s reign, though it’s not clear if the power was ever exercised. See FitzRoy, Memoirs, vol. 1, (London: Hutchinson & Co, n.d.), 59. It’s also interesting to note that, in 1906, Edward had been forced to allow the Lord Chancellor, the Prime Minister, and the Lord President to hold Councils on his behalf because the Prince of Wales was unavailable. However, he required the politicians to act as a triumvirate. This may have been a way to alleviate the perceived awkwardness of entrusting the Sovereign’s power to mere subjects.   

[9] Brazier cites the illnesses of George V in 1928 and 1936 and George VI in 1951 as cases where the Monarch wasn’t able to direct the Counsellors of State. See Brazier, 384.

[10] For example, if the Prime Minister died in office, the Counsellors of State would need to appoint a successor. While they could seek input from the Cabinet, things could get dicey if the Cabinet couldn’t agree on a successor and different factions recommended different candidates. It’s also possible that a Prime Minister could once again try to weaponize prorogation, forcing the Counsellors of State to decide whether or not to grant the request.

[11] There has never been a regency under the terms of the 1937 Act, so its provisions have not yet been tested.  

[12] That’s why there’s such a thing as the Civil Contingencies Act 2004.

[13] See section 6(1).

[14] A regency isn’t necessarily a good solution to a senescent monarch since the Sovereign can’t voluntarily trigger it and it would effectively transfer all of their power to the regent.  

Ministerial Limbo

One of the stranger consequences of Queen Elizabeth II’s death is that a good chunk of the British government now exists in a sort of constitutional limbo. Although she approved numerous ministerial appointments right before her death, she was unable to preside over a Privy Council meeting to swear in the new Cabinet. 

I’ve written about the byzantine process of making ministerial appointments elsewhere, but to make a long story short, the Promissory Oaths Order 1939 requires most Cabinet ministers to take the requisite oaths before the Sovereign in Council.[1] There can be other formalities as well. For example, certain ministers receive seals of office from the Monarch, while the President of the Board of Trade is appointed by Order in Council.[2] But, strictly speaking, senior ministers do not formally assume office until these steps are completed.[3]

In practice, however, there seems to be some wiggle room. When David Cameron reshuffled the Cabinet on September 4, 2012, some of the new ministers weren’t sworn in until October 17.[4] Even Prime Ministers have sometimes had to wait: in July 2016, Theresa May didn’t take the oath as First Lord of the Treasury until six days after her appointment. Despite these delays, it appears that everyone was allowed to start work ahead of their formal swearing-in.

Given the many demands on the King’s time, it may be a while before the i’s can be dotted and the t’s crossed. Luckily, while the British have a reputation for being sticklers for protocol, they also have a sense of pragmatism that is helpful in times like these.     

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[1] All ministers must take the official oath, and if they haven’t already taken the oath of allegiance, they must take that, too.

[2] This is a sinecure that’s lately been held by the Secretary of State for International Trade.

[3] Most junior ministers (i.e., those outside the Cabinet) take office from the moment the Sovereign signs the Prime Minister’s submission recommending their appointment. Even if the late Queen was unable to do that before her death, the King could easily finish the process without much fuss.  

[4] However, some were sworn in on September 10.

What Happens At The Accession Council?

Although the King inherited the crown the moment his mother died, today’s Accession Council marks one of the first constitutional milestones of his reign. In this post, I’ll look at what’s likely to happen during the ceremony.

Before 1603, the new monarch would issue a proclamation announcing their accession to the kingdom.[1] But James I and VI was in Scotland when he succeeded Elizabeth I, so a council of grandees took responsibility for making the necessary proclamation. This practice has prevailed ever since, though Charles II was proclaimed by both Houses of Parliament following the restoration of the monarchy.[2] Today, the Accession Proclamation is an exception to the normal rule that proclamations are made by the sovereign acting on the advice of their Privy Council.

Traditionally, every Privy Counsellor would be summoned to the Accession Council, but this time attendance will be limited to around 200. For the first time in history, the proceedings will be broadcast to the public. The Council itself consists of two parts.

Part I is attended by Privy Counsellors (including the Queen Consort and the Duke of Cornwall and Cambridge), representatives of the City of London, Commonwealth High Commissioners, and certain other officials. However, the King will not attend. The main item on the agenda will be approving the Accession Proclamation, but the Council will also make a number of Orders related to the dissemination of the proclamation and the firing of gun salutes.[3] Leading figures will then sign the Accession Proclamation.

Part II will be attended by the King. This will be his first Privy Council meeting and so it will only be attended by Privy Counsellors. The King will make a personal declaration and then he will take an Oath relating to the security of the Church of Scotland. He will then sign two copies of the Oath—one will go to Scotland to be preserved in the Court of Session’s Book of Sederunt while the other will be added to the Privy Council’s records. The King in Council will then make a number of Orders relating to administrative matters such as the continued use of the late Sovereign’s seals.[4] Remaining attendees will sign the Accession Proclamation, which will then be read at various places throughout the United Kingdom.

Normally, the Lord President of the Council plays a leading role in both parts of the Council. However, that role is technically vacant at the moment. Although the late Queen approved Penny Mordaunt’s appointment, she died before she could make the necessary declaration in Council. It will be interesting to see if this leads to any changes in the ceremonial.   

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[1] Examples of various Accession Proclamations through the ages can be found here.

[2] There had been attempts to proclaim him following his father’s execution, but their efficacy was disputed.

[3] Because they are made by the Council itself without the Sovereign’s involvement, they are Orders of Council rather than Orders in Council.

[4] An Order will even be made for the Privy Seal even though it hasn’t been used for anything since the 19^th century.

How Do You Solve A Problem Like Boris?

Westminster is in turmoil. The news that Boris Johnson appointed Chris Pincher as Deputy Chief Whip even though he knew Pincher had been accused of sexual misconduct has fanned the flames of discontent within the Conservative Party. The Chancellor of the Exchequer and the Health Secretary resigned in protest yesterday, kicking off a mass exodus of ministers from all levels of government. Various figures within the party have also called on Johnson to resign, both publicly and privately. However, he appears determined to cling to office.

If Johnson can’t be persuaded to step down, the best way to get rid of him would be for the House of Commons to resolve that it has no confidence in Her Majesty’s Government.[1] By convention, a Prime Minister who loses a confidence vote must either resign or seek a dissolution. If he failed to do either, the Queen would be justified in dismissing him.

But what if Johnson asked for a dissolution after losing a confidence vote–should the Queen grant it? The present situation is unusual in that the Government enjoys a sizable majority (in modern times, only minority governments have been defeated on confidence votes[2]). This means that another Tory MP could conceivably form a viable government, and under the Lascelles Principles, the Sovereign can refuse a dissolution if they believe they can find another premier.

However, as Anne Twomey has pointed out, “[b]eing entitled to refuse a dissolution does not mean the Head of State is obliged to do so, nor that he or she necessarily should do so.[3]” The advantage to a dissolution is that it puts the issue in the hands of the electorate. The last General Election was in 2019, so it wouldn’t be outlandish to go to the voters at this point. Attempting to find an alternative Prime Minister could also embroil the Crown in political controversy. There’s no obvious candidate at the moment, and the Palace will be keen to avoid a situation where the Queen effectively chooses the leader of the Conservative Party.[4] It’s also far from certain that the parliamentary party could unify behind anyone. Unless Johnson’s support among MPs totally collapses, he could be a highly disruptive force if he decided to nurse a sense of grievance, and his successor could find it impossible to govern.

With any luck, Johnson will realize that it’s time to go, the Tories will elect a new leader, and everyone can start moving on from the chaos of the last few years. But if he can’t be swayed, MPs may have to take matters into their own hands.

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[1] Johnson faced a vote of no confidence within the Conservative Party last month. Because he won, he can’t face another challenge until next year. However, this is an internal party matter, and the rules can be changed at any time.

[2] The most recent Prime Ministers to lose the confidence of the House are James Callaghan (1979), Ramsay Macdonald (October 1924), and Stanley Baldwin (January 1924). All three men led governments without secure majorities.

[3] Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge: Cambridge University Press, 2018), 385.

[4] The Tories have already put her in that position twice. Prior to 1965, they had no mechanism to elect a leader, and so the Queen had to choose a Prime Minister following the resignations of Anthony Eden (1957) and Harold Macmillan (1963). While she was guided by figures in the party on both occasions, her actions were the subject of some controversy.

What Are Counsellors Of State?

The Prince of Wales and the Duke of Cambridge will open Parliament today after the Queen had to pull out due to mobility issues. They will be acting as Counsellors of State, but what exactly does that mean?

Counsellors of State are individuals empowered by the Sovereign to discharge royal functions under section 6 of the Regency Act 1937. Unlike a Regent, who exercises the full panoply of the Crown’s power, Counsellors of State are meant to handle routine business such as signing state documents or holding meetings of the Privy Council.[1] The Monarch ultimately decides what they can and cannot do, though section 6(1) of the 1937 Act states that the Sovereign can’t delegate the power to dissolve Parliament (except on their express instructions) or create new peerages.[2] Modern convention also dictates that Counsellors of State don’t handle business from the Commonwealth Realms.[3]

When George V appointed the first Counsellors of State in 1911, he selected Prince Arthur of Connaught, the Archbishop of Canterbury, the Lord Chancellor, and the Lord President of the Council. This mix of royalty, ecclesiastics, and politicians remained the norm until the Irish Free State objected to the presence of British politicians among the Counsellors since it meant they were involved in the affairs of the independent nations of the Commonwealth.[4] Since 1930, only members of the Royal Family have served as Counsellors of State. The current law is contained in section 6(2) of the 1937 Act, which provides that the first four people in line for the Throne who are of legal age are eligible to be Counsellors.[5] While someone can be excused if they will be absent from the UK, the Monarch can’t substitute anyone in their place.[6] Traditionally, Counsellors act in pairs,[7] which is why Prince Charles will give the speech alongside his eldest son. Although they will technically be acting jointly, Prince William needn’t do any reading.[8]

While it’s unusual for Counsellors of State to undertake something as high-profile as the State Opening of Parliament, it’s a sensible change under the circumstances. The Queen could have delegated the task to Lords Commissioners like she does for prorogation, but the State Opening is a uniquely important ceremony, and it makes sense for her to entrust the task to senior members of her family. The fact that the Counsellors of State can take over this role is also a testament to the flexibility of Britain’s constitution.

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[1] Sir Edward Ford, one of the Queen’s former Private Secretaries, once characterized the Counsellors of State as “merely a piece of constitutional machinery – the nearest thing to a human rubber stamp that has perhaps yet been devised.” See Vernon Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon Press, 1997), 49.

[2] For a look at some of the functions that have been delegated to Counsellors of State, see David Torrance, “Regency and Counsellors of State,” House of Commons Library Research Briefing 22 February 2022, 34-35.

[3] The Regency Act 1937 is a UK statute and as such it doesn’t automatically bind the other Commonwealth Realms. However, some of them have incorporated aspects of it into their own law. For example, section 4 of New Zealand’s Constitution Act 1986 states that “[w]here, under the law of the United Kingdom, the royal functions are being performed in the name and on behalf of the Sovereign by a Regent, the royal functions of the Sovereign in right of New Zealand shall be performed in the name and on behalf of the Sovereign by that Regent.”

[4] Bogdanor, 47. The convention that Counsellors of State don’t handle Commonwealth matters had not yet solidified.

[5] The Sovereign’s spouse can also serve, and Queen Elizabeth The Queen Mother was added to the list by the Regency Act 1953.

[6] With the Duke of Sussex living in America, the number of Counsellors is now effectively three.

[7] Rodney Brazier has argued that this provision could be tweaked to allow a single Counsellor to act. See “Royal Incapacity and Constitutional Continuity: The Regent and Counsellors of State,” in The Cambridge Law Journal, Vol. 64, No. 2 (Jul., 2005), 379.

[8] This is analogous to how, when Lords Commissioners deliver speeches on behalf of the Monarch, only the presiding commissioner actually reads anything even though the terms of their Commission states that any three or more of them are supposed to act.

What Does It Mean To Be Queen Consort?

Recently, the Queen stated her wish that the Duchess of Cornwall should become ‘Queen Consort’ when the Prince of Wales ascends the throne. But what, exactly, does that mean?

A Queen Consort is distinct from a Queen Regnant. The former is the wife of a King,[1] while the latter is sovereign in her own right.[2] Although she generally doesn’t have any constitutional functions,[3] a Queen Consort is entitled to certain privileges.[4] Most notably, she is often crowned alongside her husband, though this is not a matter of right (George IV infamously barred Caroline of Brunswick from his coronation in 1821).

A Queen Consort has her own Household headed by a Lord Chamberlain, as well as her own Attorney General and Solicitor General. She is also exempt from paying any toll, fine, or amercement, and she is entitled to the tails of whales captured near the coast (the head goes to the King!).[5]

She is treated as if she were a feme sole (i.e., an unmarried woman).[6] This is because, in the words of Joseph Chitty:

As the various duties, responsibilities, and cares of government, are fully sufficient to occupy the time and attention of the King, the law, as a further comment on the principle, that the royal functions should be unembarrassed by minute considerations, has wisely freed his Majesty from the necessity of interfering with the management of the domestic affairs of his consort.[7]

This distinction was once quite significant since it meant a Queen Consort could hold and dispose of her own property independently of the King. But nowadays, it’s largely an antiquarian matter since married women have the same legal capacity as single women.

Killing a Queen Consort is considered treason under the Treason Act 1351, and it’s also treason for someone to ‘violate’ her. However, there is some uncertainty as to the meaning of this term. While it definitely includes sexual assault,[8] some authorities have argued that it also encompasses consensual adultery on the part of the Queen Consort.[9] It’s also been questioned whether violation of a Queen Consort would still be treason if she were too old to bear children.[10]

Formerly, a Queen Consort was also entitled to ‘queen gold.’ This was a sort of surcharge on certain payments to the king,[11] but the custom died off in the 17^th century. A Queen Consort also had the right to sue by information without an indictment, though this privilege is essentially meaningless nowadays.[12]

The prospect of Queen Camilla may rankle some, but it’s hardly a surprising development. Relegating her to a lesser role would make little sense now. Diana has been dead for almost 25 years, and Camilla has shown herself to be a hardworking member of the Royal Family. It’s time to move on.

I am grateful to Rowan Hall and Jacob Gifford Head for their assistance with this post.

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[1] The legalization of same-sex marriage doesn’t affect the common law regarding the right to the title of Queen Consort. See Schedule 2(1)(a) of the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014.

[2] William III and Mary II (commonly known as ‘William and Mary’) were joint sovereigns, but this was a special case. Mary was the one with a hereditary claim to the throne, but she insisted that her husband rule alongside her. Earlier, Philip II of Spain bore a kingly title alongside Mary I under the terms of 1 Mar. Sess. 3 c. 2, but there were a number of limitations on his power that meant he wasn’t quite co-sovereign.

[3] The Regency Act 1937 allows a Queen Consort to have guardianship of an incapacitated sovereign. She is also entitled to be one of the Counsellors of State who can exercise the royal functions during the Monarch’s illness or absence from the realm.

[4] What follows comes from Halsbury’s Laws of England (2019), vol. 29, para. 31.

[5] According to William Prynne, this was done in order to provide the queen consort with whalebone for her corsets. See Prynne, Aurum Reginae (London: Thomas Ratcliffe, 1668), 127.

[6] The common law doctrine of coverture meant that a married woman (feme covert) had her legal personality subsumed to that of her husband.   

[7] Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown (London: Joseph Butterworth and Son, 1820), 401.

[8] Graham S. McBain argues that only sexual assault that includes vaginal penetration qualifies a ‘violation’ under the 1351 Act based on the medieval law of rape. See McBain, “High treason—violating the Sovereign’s wife,” in Legal Studies, vol. 29, no. 2 (June 2009), 278, n. 101.

[9] The editors of Halsbury’s Laws of England take that view (“[The Queen Consort] herself will be guilty of treason if she consents to the violation of her chastity”) as does Blackstone, but McBain has argued that this is unlikely to be the case. See McBain, 269-271.

[10] McBain, 267.

[11] See William Blackstone, Commentaries on the Laws of England, vol. 1 (Boston: T. B. Wait and Sons, 1818), 219. See also Prynne, Aurum Reginae.

[12] The editors of Halsbury’s Laws of England suggest that this may still be the case (see footnote 12).