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.    

[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.  

Posted in Monarchy in Britain, The Monarchy | Tagged , , , , , , , , , | Leave a comment

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.     

[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.

Posted in British Constitution | Tagged , , , , , | Comments Off on Ministerial Limbo

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.   

[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 19th century.

Posted in Monarchy in Britain, The Monarchy | Tagged , , , , , | 2 Comments

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.

[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.

Posted in British Constitution | Tagged , , , , | Comments Off on How Do You Solve A Problem Like Boris?

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.

[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.

Posted in Monarchy in Britain, The Monarchy | Tagged , , , , | 1 Comment

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 17th 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.

[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).

Posted in Monarchy in Britain, The Monarchy | Tagged , , , | 8 Comments

Could Prince Charles Read The Queen’s Speech?

A friend recently drew my attention to an article in the Daily Mail which claims that the Prince of Wales is on standby to deliver the Speech from the Throne if the Queen is unable to attend the State Opening of Parliament on May 10. However, the issue is a bit more complicated than the Mail suggests.

The current practice is for Lords Commissioners to act on the Sovereign’s behalf if they are unable to attend Parliament in person.[1] This is most commonly seen at prorogation and the royal approbation of the Speaker-elect of the Commons, but Lords Commissioners have delivered the Speech from the Throne from time to time (the most recent occasion was November 12, 1963). As with prorogation, the speech is actually read by the senior commissioner who is a member of the government.[2]

Formerly, the Prince of Wales was one of the Lords Commissioners, but he stopped being included after the House of Lords Act 1999 stripped him of his seat in the Upper House. However, he could be reinstated since the choice of Commissioner is ultimately a matter for the Queen. The fact that he is no longer a member of the House of Lords wouldn’t matter–Lord Chancellors have signified the Queen’s approbation of the Commons Speaker even when they have been MPs.

Prince Charles could also theoretically deliver the Speech from the Throne as a Counsellor of State, though this has never happened before. For example, Lords Commissioners opened Parliament on November 6, 1951 even though George VI had appointed Counsellors of State on September 27.

Although Counsellors typically act in pairs, this requirement could be satisfied by having another Counsellor sit next to Prince Charles while he reads the speech.[3] Rodney Brazier has even argued that the Sovereign could allow a single Counsellor to act, though this possibility remains theoretical at this point.[4] One potential drawback to the appointment of Counsellors of State is that, by law, the Duke of York would nominally be one of the Counsellors even if he played no part in the ceremony.[5] This would almost certainly give rise to controversy, so it might be preferable to go a different route.

The final possibility is that Prince Charles could deliver the Speech on his own as Regent, but as things stand, that seems highly unlikely. A regency is meant for cases of long-term incapacity; it’s not an ad hoc arrangement.

Personally, I think reinstating Prince Charles as a Lord Commissioner would be the most prudent option if the Queen can’t deliver the Speech in person. It would represent a relatively minor change to the established practice, and Prince Andrew wouldn’t be part of the equation at all. But with any luck, it won’t be necessary, and Her Majesty will attend as usual.  

UPDATE (4/30/2022): I’ve added some discussion of the possibility that Prince Charles could give the Speech as a Counsellor of State.

UPDATE (5/9/2022): Buckingham Palace has announced that Prince Charles and the Duke of Cambridge will open Parliament as Counsellors of State.

[1] See paragraph 8.33 of Erskine May.

[2] Traditionally, that would have been the Lord Chancellor, though it would likely be the Leader of the House of Lords nowadays.

[3] As noted above, a single Lord Commissioner reads the Sovereign’s speech even though their Commission formally entrusts that duty to any three or more of them. The mere presence of the other Commissioners is sufficient to satisfy that requirement.  

[4] Section 6(3) of the Regency Act 1937 states that “[a]ny functions delegated under this section shall be exercised jointly by the Counsellors of State, or by such number of them as may be specified in the Letters Patent, and subject to such conditions, if any, as may be therein prescribed” (emphasis added). For more information, 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), 379.

[5] Under section 6(2) of the 1937 Act, the first four adults in line for the throne are the only ones who can act as Counsellors of State. While the Queen can excuse someone from acting if they will not be present in the UK, she can’t substitute anyone else. Consequently, the Duke of Sussex could be omitted, but not the Duke of York.

Posted in Monarchy in Britain, The Monarchy | Tagged , , , , | 2 Comments

Slimming Down The Accession Council

The Daily Mail recently reported that only 200 Privy Counsellors will be invited to the next Accession Council. Typically, Council meetings are only attended by three or four Privy Counsellors drawn from the government of the day, but the Accession Council was one of two occasions when the full Council would be summoned.[1] Under the new plans, Cabinet ministers, ex-Prime Ministers, senior judges, and the Archbishops of Canterbury and York will be guaranteed invites, but other Privy Counsellors will have to enter a ballot if they wish to attend.

According to a letter from the Clerk of the Council quoted in the article, the reduced guest list is necessary “to deliver the first high-profile event of the King’s reign to the high presentational and safety standards required of the occasion.”

This change hasn’t been well received in some quarters. An anonymous ‘senior Privy Counsellor’ groused to the Mail that “'[i]t is utterly wrong to ban the great majority of Privy Counsellors from what is the most important meeting they will ever attend. Frankly, the whole thing is undignified.”

It’s worth remembering that the Accession Council is a purely ceremonial affair. By law, the monarch inherits the Crown the moment their predecessor dies, so the holding of the Accession Council is simply a matter of tradition. While I understand why some Privy Counsellors would be disappointed not to attend, inviting everyone seems like it could be a logistical nightmare. The Council is far larger than it used to be. In 1952, 191 Privy Counsellors attended the first part of the Council and 175 attended the second part.[2] If everyone showed up to Charles’ Accession Council, there would be over 700 people in attendance. The fact that Privy Counsellors from outside the government of the day will still attend (albeit in fewer numbers) seems like a common-sense way to honor the spirit of the occasion while keeping things manageable.

The Mail suggests that the slimmed-down guest list might be part of a move to publicly broadcast the Accession Council for the first time. If that comes to pass, it will be a welcome development. The Queen’s reign has seen the Monarchy become more and more accessible to the general public. The presentation of high-society debutants was replaced by garden parties attended by a wider cross section of society, and walkabouts have become a staple of visits that were once dominated by receiving lines of local worthies. Broadcasting the Accession Council seems like a logical next step. After all, the whole point of these proceedings is to formally announce the sovereign’s accession to the nation, so letting the public see as much of the ceremony as possible would be a sensible move.

[1] The other occasion is when a sovereign announces their intent to marry. However, this tradition may be a Victorian innovation, as I haven’t been able to find evidence of it before Queen Victoria announced her engagement to Prince Albert.

[2] The first part of the Council is conducted without the sovereign present and includes representatives of the City of London and Commonwealth High Commissioners. The main business is the making of the Accession Proclamation. The second part is the monarch’s first Privy Council, and it’s only attended by Privy Counsellors. Among other things, the sovereign takes an oath regarding the security of the Church of Scotland and issues a slew of administrative Orders (e.g., authorizing the continued use of their predecessor’s seals until new ones can be approved).

Posted in Monarchy in Britain, The Monarchy | Tagged , , , , | 2 Comments

Some Thoughts On The Counsellors Of State

With the news that the Prince of Wales has COVID, I’ve been asked about who might step in for the Queen if she were to fall ill as well. Under section 6(1) of the Regency Act 1937, the Sovereign can delegate their functions to Counsellors of State in the event of illness or some other indisposition. Section 6(2) of the Act states that the Counsellors must be the Sovereign’s spouse and the four individuals who are next in line for the throne and are capable of serving as a regent.[1]

Since the Duke of Edinburgh is dead and the Duke of Cambridge’s children are too young to serve, this means the Counsellors would be Prince Charles, Prince William, the Duke of Sussex, and the Duke of York. But Prince Charles is self-isolating, Prince William is out of the country, Prince Harry lives in the US, and Prince Andrew has withdrawn from royal duties. While the Queen can discharge someone from being a Counsellor if they are absent from the UK, she can’t appoint someone else in their stead. This might seem like a potential catastrophe, but in reality, it’s unlikely to be a problem.

First of all, there is no indication that the Queen is unable to discharge her duties. But even if she were to take ill, Prince William is due to return to the UK tomorrow (and, needless to say, he could expedite his return if necessary). And although Prince Charles has COVID, that wouldn’t necessarily prevent him from acting as a Counsellor of State. While it does take two Counsellors to exercise any of the Queen’s functions, there’s no rule that says they must be in physical proximity to one another. Indeed, Prince William could sign a document in one place and then send it over to his father.[2] And given that Privy Councils and the presentation of ambassadors’ credentials have already been conducted virtually during the pandemic, they needn’t be obstacles, either.

If Prince Charles were incapacitated by COVID, Prince Harry could potentially serve as a Counsellor as long as he is still technically domiciled in the UK.[3] And, if necessary, Prince Andrew could serve, too. It would be awkward given the cloud that hangs over him, but it’s important to remember that Counsellors have no discretion when carrying out their functions. In the words of Sir Edward Ford, a former Assistant Private Secretary to the Queen:

They are in fact—if one may say it without disrespect to their persons—merely a piece of constitutional machinery—the nearest thing to a human rubber stamp that has perhaps yet been devised.[4]

In extremis, a single Counsellor might even be able to act. Under section 6(3) of the 1937 Act:

Any functions delegated under this section shall be exercised jointly by the Counsellors of State, or by such number of them as may be specified in the Letters Patent, and subject to such conditions, if any, as may be therein prescribed.

Rodney Brazier has argued that this means the Queen can either allow Counsellors to act jointly “or by such number of them as may be specified in the Letters Patent,” and that number could be one.[5] But, as we’ve seen, that theory is unlikely to be tested since there will be enough people who can serve if necessary.

[1] The requirements for being a regent are set out in section 3(2).

[2] Queen Victoria essentially went into self-isolation for many years following the Prince Consort’s death, and the Government learned to work around her seclusion. For example, Privy Counsellors would assemble outside her chamber for Council meetings while she signified her approval through a partially closed door.

[3] Under section 3(2) of the 1937 Act, “A person shall be disqualified from becoming or being Regent, if he is not a British subject of full age and domiciled in some part of the United Kingdom” (emphasis added). While Prince Harry currently lives in the US, it’s possible he is still legally domiciled in the UK.

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

[5] Rodney Brazier, “Royal Incapacity and Constitutional Continuity: The Regent and Counsellors of State,” in The Cambridge Law Journal, vol. 64, no. 2 (July 2005), 379.

Posted in British Monarchy | Tagged , , , , , | Comments Off on Some Thoughts On The Counsellors Of State

Thoughts On The Judge Amendment

Yesterday, the House of Lords made a major change to the Dissolution and Calling of Parliament Bill. Lord Judge successfully moved an amendment that would give the House of Commons a veto over the dissolution of Parliament.

I’ve discussed the Bill in more detail elsewhere, but the gist is that it would repeal the Fixed-term Parliaments Act 2011 and restore the Sovereign’s power to dissolve Parliament under the prerogative. Unlike most other royal powers (which must be exercised in accordance with ministerial advice), the Monarch traditionally had an element of discretion when dealing with a Prime Minister’s request for a dissolution.[1]

Because the Bill would make dissolution non-justiciable,[2] the Sovereign would be the only one who could police the power. That has the potential to put the Palace in an awkward position. Convention dictates that the Monarch must remain above the political fray, but refusing a Prime Minister’s request for a dissolution could drag the Crown into partisan controversy.

Lord Judge alluded to this difficulty when moving his amendment:

Whatever the position was in 1950,[3] the idea that the sovereign can, in response to the Prime Minister who advises or requests—what a wonderful argument that has been—a Dissolution, refuse it, is completely inconceivable; it is beyond the fairies. We cannot have the monarch turning down the elected Prime Minister’s request for Dissolution without becoming utterly enmeshed in party politics.[4]

In the past, the Sovereign was protected by a strong ethos of deference that discouraged ministers from doing anything that might embarrass the Crown.[5] But in a hyper-partisan age where the ends increasingly seem to justify the means, future monarchs might feel that they have no choice but to grant every request for a dissolution, no matter how problematic.[6] The 2019 prorogation controversy shows how the Monarchy could easily find itself in a no-win situation. Keeping dissolution disputes away from the Palace might well be the safest course of action.

Of course, it’s debatable whether Lord Judge’s amendment itself constitutes a meaningful check on the Prime Minister’s power. Under the FTPA, an early dissolution generally required the support of 2/3 of MPs.[7] By requiring cross-party support, it was supposed to discourage Prime Ministers from opportunistically seeking early elections.[8] However, if dissolution only requires a simple majority, Prime Ministers will likely be able to have elections whenever they want.[9] But Lord Judge’s amendment also arguably serves a symbolic purpose as well. As Lord Lansley put it:

[W]e should give an opportunity not to restore the prerogative in the form in which it existed in the past but to qualify it by reference to what is the reality of our constitution—that sovereignty rests in the sovereign in Parliament, that that must be reflected by a majority in the House of Commons.[10]

In other words, it’s a classic British constitutional fudge.[11]

Ultimately, Lord Judge’s amendment probably won’t make it onto the statute book. The Government will likely be able to overturn it when the Bill returns to the Commons. Peers will then need to decide whether to insist on their amendment or give way. Since this is a manifesto bill, the Upper House will likely yield in the end, though it may take a few rounds of ‘ping pong’ before the matter is settled.

[1] As is often the case with the British constitution, the precise scope of that discretion was and is contested.

[2] Clause 3 of the Bill states that: “A court or tribunal may not question— (a) the exercise or purported exercise of the powers referred to in section 2, (b) any decision or purported decision relating to those powers, or (c) the limits or extent of those powers.”

[3] In 1950, King George VI’s Private Secretary wrote a pseudonymous letter to The Times setting out the principles that guided the Sovereign’s response to a request for a dissolution.

[4] HL Debates, 9 February 2022, col. 1585.

[5] For example, William Gladstone was frequently at loggerheads with Queen Victoria, yet he never aired his grievances publicly.

[6] It’s worth remembering that not every monarch will have the auctoritas of Elizabeth II.

[7] Section 2(1)(b). However, votes of no confidence could also trigger an early election in certain circumstances, and they only required a simple majority.

[8] In 2017, MPs overwhelmingly supported Theresa May’s request for an early election even though it was nakedly opportunistic. Of course, it didn’t quite work out the way she’d planned…

[9] During the debate on Lord Judge’s amendment, some peers argued that this amendment was a recipe for the kind of paralysis that marked the latter part of 2019. But the issue there was the need for a 2/3 majority. Had a simple majority been sufficient, the Government would have prevailed a lot sooner.

[10] HL Debates, 9 February 2022, col. 1588.

[11] I’ve long thought that the FTPA went too far by entirely removing the Sovereign from the process of ending a Parliament.

Posted in British Parliament | Tagged , , , , , , | 2 Comments