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.

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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.

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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).

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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.

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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).

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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.

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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.

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Some Thoughts On Camilla As Queen Consort

In a message to mark her accession day, the Queen has signaled that she would like the Duchess of Cornwall to have the title of ‘Queen Consort’ once the Prince of Wales ascends the throne.

When Charles married Camilla in 2005, it was announced that she would be known as ‘Princess Consort.[1]’ However, as many commentators have noted, it would take an Act of Parliament to formally strip her of her queenly title. It would also arguably require the unanimous agreement of the other Commonwealth Realms.[2] Charles himself never seemed particularly enthusiastic about the prospect of giving his wife a lesser title, and eventually the statement about Camilla being Princess Consort was quietly dropped from his website.

I’ve always been skeptical of the notion that Camilla wouldn’t be queen. Giving her a lesser title might have made sense back when the death of Diana, Princess of Wales, was still a raw subject, but she’s been gone for almost 25 years now. And Camilla is no longer the pariah she was in the 90s. She might receive Diana-levels of adoration, but she’s shown herself to be a hard-working and conscientious member of The Firm. Relegating her to a second-class role at this point would just be spiteful. Charles deserves to have Queen Camilla at his side.

[1] There’s no precedent for this title in the UK, though Queen Victoria made her husband Albert ‘Prince Consort.’ While a king’s wife automatically becomes queen consort, a queen’s husband has no special status (contrary to popular belief, the late Duke of Edinburgh never formally held the title of Prince Consort).

[2] It’s not clear if other Commonwealth Realms would need to pass legislation to effect this change. While they wouldn’t be affected by an Act of the UK Parliament, they wouldn’t need to legislate if they decided that title of queen consort has no legal substance in their domestic law. In the UK, on the other hand, a queen consort has certain special privileges (e.g., the right to have her own Attorney General).

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A Question Of Titles

Buckingham Palace announced yesterday that the Duke of York will no longer use the style of ‘His Royal Highness’ and will give up his honorary military appointments and patronages. This comes after a US judge declined to dismiss Virginia Giuffre’s civil suit alleging that the Duke sexually assaulted her when she was a minor. While his departure from public life is warranted given the grave accusations against him, many may find it unsatisfactory that he continues to have the style of HRH (even if he no longer uses it) and remains a Royal Duke. Unfortunately, stripping him of these royal accoutrements is a tall order.

As a matter of law, the Queen can’t unilaterally take away the Duke’s peerages.[1] As with other peerages, they can only be removed by an Act of Parliament. This hasn’t happened since 1919 when four individuals lost their titles after they fought against the UK in World War I (however, the relevant legislation may provide a template for the future; more on that later). It’s also worth noting that, since hereditary peers aren’t entitled to automatic seats in the House of Lords, the Duke’s peerages no longer have any constitutional significance.[2]

The situation surrounding the titular dignity of prince/princess and the style of HRH is more complicated. All of the Sovereign’s children are entitled to them under George V’s Letters Patent of 1917. They’re not granted on an individual basis, at least not to the Sovereign’s children.[3] No child of the Sovereign has lost these dignities in modern times,[4] but the wives of princes have lost them in certain circumstances. Most notably, Diana, Princess of Wales, and Sarah, Duchess of York, lost the style of HRH upon their divorces, though that was done as an amendment to the general rules rather than as the revocation of individual titles. And when George VI confirmed that the Duke of Windsor was an HRH following the latter’s abdication, he declared that the Duke’s wife and children would not enjoy the style. Since the Queen is the fount of honor, she could still strip the Duke of his princely style and title, but there is no template ready to be dusted off.

The fact that the Duke and Duchess of Sussex were also obliged to stop using their princely styles and surrender their patronages creates a highly unfortunate parallel. Whatever one might think of the Sussexes’ decision to step down as working members of the Royal Family, they aren’t in the same class as someone accused of sexually assaulting a minor.

I’ve said before that there should be a way for members of the Royal Family to forfeit their status in actuality as well as in practice. The controversy surrounding the Duke of York only underlines the need for such a mechanism. A situation where people hold onto their honorifics even though they have left royal life is inherently problematic regardless of the underlying reasons for their departure.

Perhaps it’s time for Parliament to give the Sovereign the power to revoke a peerage in certain circumstances. This isn’t just an issue for the Royal Family: right now, a person who is expelled from the House of Lords still gets to keep their title. The Titles Deprivation Act 1917 provides an example of how this could be done.[5] A modern Act might provide that, if a peer is expelled from the House of Lords or commits a serious crime, the Sovereign may make an Order in Council depriving them of their peerage.[6] However, the Act would need to include safeguards to ensure it couldn’t be abused.[7] Expulsion from the House of Lords is relatively straightforward, but the question of what constitutes a ‘serious crime’ (and whether the peer committed the alleged offense) would require careful consideration.

As for princely styles and titles, Craig Prescott of Bangor University has suggested that they should be granted to specific individuals instead of automatically conferring them on a general class of people. It would need to be handled carefully to avoid ensnaring the Royal Family in never-ending controversy, but at the very least, individual grants would make it easier to revoke these royal honorifics when necessary.

It may be tempting to dismiss the present difficulties as aberrations, but that would be unwise. The immutability of royal titles seems increasingly anomalous in a society that insists on transparency and accountability from its leaders. Tweaking the rules may be the best way to ensure that these titles don’t disappear entirely.

[1] When he was created Duke of York, he was also created Earl of Inverness and Baron Killyleagh.

[2] Although the Duke was formally introduced into the House of Lords on February 1, 1987, he did not take part in parliamentary business.

[3] The late Duke of Edinburgh received the style of HRH when he married the then-Princess Elizabeth (this was necessary because, while a wife takes the status of her husband, a husband does not take the status of his wife). After she became queen, she made him a Prince of the United Kingdom.

[4] George V’s Letters Patent restricted the title of ‘prince’ and the style of ‘Royal Highness’ to individuals within the Sovereign’s immediate family and discontinued the style of ‘Serene Highness’ entirely. While this meant that certain individuals lost the title of prince and the style of HRH/HSH (e.g., Prince Alexander of Teck), they were members of the extended Royal Family rather than the Sovereign’s children.   

[5] Despite what some people seem to think, the Act didn’t establish a general mechanism for revoking titles. It only applied to peers who fought against the King and his allies in World War I.

[6] It’s fair to ask whether peers should be allowed to voluntarily surrender their peerages. Under the Peerage Act 1963, a hereditary peer can disclaim a newly inherited peerage, though they must generally do so within one year of inheriting it. A disclaimed peerage effectively lies dormant during the holder’s lifetime and then reemerges upon their demise to pass to their heir as normal. However, there is no analogous provision for life peerages. Traditionally, it has been thought unnecessary to provide one since a life peer already consented to their ennoblement. But allowing someone to rid themselves of a life peerage after the fact might be prudent.

[7] For a critique of the 1917 Act, see Ann Lyon, “A Reaction to Popular Hysteria: the Titles Deprivation Act 1917,” Liverpool Law Review, vol 22 (2000), 173-203.

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Some Thoughts On The Dissolution And Calling Of Parliament Bill

The House of Lords is now considering the Dissolution and Calling of Parliament Bill that was passed by the Commons back in September. It would repeal the Fixed-term Parliaments Act 2011 and restore the pre-2011 status quo whereby the Sovereign dissolved Parliament at the request of the Prime Minister. Regular readers of my blog will know that I’m no fan of the FTPA, but I still have misgivings about its repeal.

The FTPA hasn’t exactly been a roaring success. Although it declared that a Parliament should last for five years, only one Parliament since then has actually run the statutory course. Both Theresa May and Boris Johnson were able to obtain early General Elections, though they went about it in different ways.

The 2017 election is particularly illuminating. After opinion polls showed the Conservatives with a convincing lead over Labour, May saw an opportunity to obtain an enhanced majority that would strengthen her hand in the Brexit negotiations.[1] Even though the FTPA was supposed to prevent this sort of opportunistic behavior, most Opposition MPs voted for an early election under section 2(1) of the FTPA (the final vote was 522 to 13).

MPs were less compliant in 2019 and repeatedly thwarted Johnson’s attempts to secure an early election under the FTPA. However, this was an unusual situation colored by fear of a no-deal Brexit. If it hadn’t been for that, the 2017 precedent suggests Johnson would’ve had less difficulty securing an early poll. In the end, the lack of a 2/3 majority didn’t prevent an early election since the Government was able to secure the passage of special legislation to circumvent the FTPA.[2]

A fixed-term Parliament regime that isn’t part of a codified constitution requires politicians to show a degree of self-restraint. It can only work if they’re willing to respect those restrictions even when it’s disadvantageous to do so, yet both the Tories and Labour made manifesto commitments to repeal the FTPA at the last General Election. This suggests that, whatever the virtues of fixed-term Parliaments, they are unlikely to be workable in Westminster without a shift in political culture.[3]

All that being said, the Dissolution and Calling of Parliament Bill is not without issues of its own. The bill assumes that the royal prerogative power of dissolution can be revived by repealing the FTPA, but this assumption is debatable. The royal prerogative is a creature of common law rather than statute, and while it’s agreed that statutes may supersede prerogative powers,[4] it’s not clear what happens if those statutes are subsequently repealed. Does the old prerogative power spring back as if nothing happened, or can it only be recreated as a statutory power? This isn’t just an academic question: the nature of the revived dissolution power could potentially affect how the courts interact with it in the future. Although clause 3 of the bill purports to make the revived prerogative power non-justiciable, there’s no guarantee the courts will interpret it in the way the Government intends.[5]

If the courts can’t police the power of dissolution, that leaves the Monarch as the only safeguard. Traditionally, dissolution was an area where the Sovereign retained an element of discretion. This was reflected in the terminology: the Prime Minister couldn’t advise a dissolution; he could only request one. In 1950, King George VI’s Private Secretary, Sir Alan Lascelles, wrote a pseudonymous letter to The Times in which he set out the circumstances in which the Monarch might refuse a dissolution:

In so far as this matter can be publicly discussed, it can be properly assumed that no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.[6] 

In practice, it’s difficult to say how modern monarchs wielded their discretion under the old system. It’s been claimed that Elizabeth II has never refused a dissolution, but Anne Twomey has suggested this might not be the case:

In relation to monarchs and exercising reserve powers, nearly always it happens without ever being formally done. There is no formal rejection of a Dissolution, because it is all done informally by hints, suggestions and queries. “Is that wise, Prime Minister? Would it really be appropriate to do this now?” That is how the reserve powers work in practice. We really cannot say whether that has been exercised during Her Majesty’s reign, so I would not be suggesting at all that the power had in any way disappeared.[7]

The Government’s initial set of ‘Dissolution Principles’ suggested that the Monarch should dissolve Parliament on the advice of the Prime Minister, but this approach was criticized by the Joint Committee on the Fixed-term Parliaments Act. The Government accepted the criticism and acknowledged that the Sovereign will retain an element of discretion once the FTPA is repealed.

While returning the dissolution power to the Sovereign is in accordance with constitutional tradition, it has the potential to make life difficult for the Palace. In modern times, the Crown is expected to remain above the political fray.[8] The rationale for this approach is understandable. A purely ceremonial role is arguably the least controversial one for a hereditary head of state in a 21st century parliamentary democracy (though, as Professor Twomey has noted, that approach carries risks of its own[9]). But if the Crown is going to police the dissolution power, the Monarch must be prepared to make a potentially controversial foray into the political arena.

It was arguably easier for the Sovereign to police the constitution when the culture of deference was even stronger than it is today. The prevailing norms meant that they could discourage problematic requests for dissolution without the need for a formal confrontation, and they didn’t need to worry about ministers publicly attacking them for their decision.[10] But in a less-deferential age where the ends increasingly seem to justify the means, a modern government might not be so chary. Boris Johnson’s willingness to ask the Queen to grant a controversial prorogation in 2019 suggests that modern politicians are less reticent about dragging the Crown into controversy if it suits their aims.[11] The vitriolic reaction to the Brexit-related court decisions[12] provides a glimpse of what the Monarch might encounter if they refused a dissolution request from a popular Prime Minister.[13] If the Sovereign can’t effectively police the dissolution of Parliament, that’s a problem.

At this point, it seems all but certain that the Dissolution and Calling of Parliament Bill will become law. One only hopes that the UK isn’t storing up problems for the future.

[1] May’s gambit ultimately backfired. She lost her majority and had to enter into a confidence and supply agreement with the Democratic Unionist Party to stay in power.

[2] The Early Parliamentary General Election Act 2019. While an early election under the FTPA required a supermajority, legislation only requires a majority.

[3] I suspect nothing short of constitutional codification would make fixed-term Parliaments viable at Westminster.  

[4] See, for example, Attorney-General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1, [1920] AC 508, 526-528.

[5] Despite the wording, academic commentary is divided over whether the clause will achieve its objectives. Lord Lisvane and Sir Malcom Jack (both former Clerks of the House of Commons) both thought that it wouldn’t necessarily prevent judicial review of the power of dissolution, while Professor Philippe Legassé of Carleton University and Lord Sumption (a former Justice of the UK Supreme Court) thought it would probably be enough to dissuade the courts.

[6] [Sir Alan Lascelles], “Dissolution of Parliament: Factors in the Crown’s Choice,” The Times (London), May 2, 1950.

[7] Her comments are in her response to Q184.

[8] The truth of the matter might be more complicated. Even if the Queen isn’t a political actor in the conventional sense of the term, she still wields considerable influence. However, the exercise of this influence is difficult to document thanks to a strong culture of deference that’s underpinned by statute (e.g., section 37 of the Freedom of Information Act 2000 prevents the disclosure of “communications” with the Sovereign and other royal figures). We likely won’t know the full story of her influence until well after her death.

[9] “But if you say that the Queen is simply an automaton—just a rubber stamp who acts on advice and nothing else—that makes her very vulnerable in your political system, because it leaves her as a tourist attraction. One day, you will find another tourist attraction is more attractive and cheaper, and the monarchy can be tossed out with that. It is actually in the interests of the monarchy and its survival in the United Kingdom that it is seen as having this non-partisan role of protecting the constitution—being the last stopgap to do that. That is what preserves the monarchy in your system.” This comes from her evidence to the Joint Committee on the FTPA (Q185).

[10] For example, Queen Victoria had a very turbulent relationship with William Gladstone and pushed the envelope of constitutional propriety on a number of occasions, yet he did not publicize their clashes.   

[11] The fact that the Queen was still criticized for granting Johnson’s request even though there was a constitutional argument for doing so shows how scenarios like these could become no-win situations for the Palace.

[12] The Daily Mail infamously denounced the High Court judges as ‘enemies of the people’ after they ruled against the Government in R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).

[13] A long-serving and popular monarch like Elizabeth II might have enough clout to withstand such attacks, but not every sovereign will have that level of public esteem.

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