The Counsellors of State Bill: an elegant solution, but a temporary one

The House of Lords yesterday debated the merits of the Counsellors of State Bill, which seeks to add Princess Anne and Prince Edward to the list of people that can act when the monarch is unable to do so. As Craig Prescott explains, this is a neat solution, but a temporary one.

The start of a new reign inevitably brings change to the monarchy. One specific change is that the monarch will once again travel overseas, including visits to some of the 14 other countries that also have a new head of state.

But what about the monarch’s constitutional and legal role while they are away? This role includes the granting of royal assent to legislation, appointment of ministers, ratification of treaties, and appointment of judges and diplomats. Many of these functions require the personal signature of the monarch (the royal sign manual), or in the case of holding Privy Council meetings and the state opening of parliament, their personal participation. This reflects how the monarch, as head of state, remains a central part of the UK’s constitutional arrangements. It is pivotal to the machinery of government that the royal authority is always available to grant the final, formal legal approval to wide range of decisions made by government and parliament.

The necessary continuity is provided by the Regency Act 1937, supplemented by the Regency Acts 1943 and 1953. If the monarch is overseas, or is unwell and unable to conduct their duties, Counsellors of State can be appointed to exercise the royal functions. During the reign of Elizabeth II, Counsellors of State were appointed over 100 times, facilitating the Queen’s extensive overseas travel and establishing her position on the international stage.

The Regency Acts provide that the Counsellors of State are the spouse of the monarch and the first four in the line of succession, of full age, domiciled in the UK. For the heir apparent or heir presumptive, the Regency Act 1943 allowed for then Princess Elizabeth to become a Counsellor of State when she became 18, otherwise ‘full age’ for these purposes is 21. The 1943 Act also allowed for any potential Counsellor of State to be excluded if they are overseas during the period of appointment. This provision was introduced so that Prince Henry, the Duke of Gloucester, would be excepted while Governor-General of Australia to prevent any potential conflict between that role and his position as a Counsellor of State.

The Regency Act 1953 specifically made Queen Elizabeth, the Queen Mother, an extra Counsellor of State for the rest of her life. This meant that for most of the Queen’s reign there were six Counsellors of State, although Prince Philip never acted as he invariably travelled with her. Most recently in May, Counsellors of State were appointed for the state opening of parliament, Prince Charles (as he then was) read the speech, supported by the presence of Prince William.

The issue

The problem is that under the Regency Acts, the Counsellors of State are the Queen Consort, Prince William, Prince Harry, Prince Andrew, and Princess Beatrice. Assuming that the Queen Consort will travel alongside the King, this means that out of this pool, only Prince William carries out public duties. The problem is that the Counsellors of State act in pairs. Given the importance of carrying out public duties to the modern monarchy, in principle it is incongruous for a non-working member of the royal family who does not conduct such duties to act as a Counsellor of State.

This is not a new problem: the Earl of Harewood (perhaps better known for his work as Chairman of the English National Opera and as a Governor of BBC) was one of the eligible Counsellors of State from 1944 to 1951. When Cabinet discussed what became the Regency Act 1953, the Earl of Harewood was floated as a possible addition. Lord (Gavin) Simonds, the Lord Chancellor, described him ‘as not a very good name for this purpose’. Ultimately, the concern is that if relatively remote figures from the line of succession are appointed, then this risks pulling at a thread that leads to questioning the need for royal involvement altogether. This risk becomes even stronger in the cases of Prince Harry and Prince Andrew given the (very different) circumstances in which they decided to withdraw from public life. Prince Harry remains a Counsellor of State because he retains his British domicile as his ‘domicile of origin’. It is generally difficult to replace this with a ‘domicile of choice’, such as the United States. A further factor is that by retaining the lease on Frogmore Cottage in Windsor he retains a link to the UK.

The solution

The solution to the present problem is to go back to the past. As discussed above, the Regency Act 1953 made Queen Elizabeth, The Queen Mother an extra Counsellor of State in addition to those under the Regency Act 1937. This was in part because the Queen Mother lost this status on the death of George VI, as she was no longer the wife of the monarch. The Regency Act 1953 achieved this with a deeming provision, in that it was ‘as if’ the Queen Mother was appointed alongside the others. The 1937 Act itself was not amended.

This is the approach taken with the Counsellors of State Bill, which specifically names Prince Edward and Princess Anne as extra Counsellors of State, ‘as if’ they are appointed with the others under the 1937 Act. The effect is that, alongside Prince William, three Counsellors of State will now be available to act. Presumably the royal household will coordinate their diaries to ensure that two of these three will be able to act during any period of their appointment. For example, documents held in the National Archives show that in 1970 Princess Margaret was asked to return from holiday a few days earlier than planned to ensure that along with the Queen Mother, two Counsellors were in the country.

The elegance of this solution is that that it does not remove anyone from the pool of potential counsellors. This approach has sparked some debate in the House of Lords at second reading and an amendment aimed at the removal of Prince Harry and Prince Andrew was briefly debated, before being withdrawn. The Commons is also likely to discuss this issue. Although there is a principled argument for their removal, it is legally unnecessary. There will still be only three active Counsellors. In essence, the same result could be achieved by Buckingham Palace posting a statement on the website stating, ‘that normally only those who perform public duties would act as Counsellors of State’.

It is not too difficult to consider a potential scenario where having only three Counsellors of State could be problematic. Imagine that the King and Queen are in Australia and one of the three Counsellors of State is also overseas, but grounded by bad weather. What happens if a Counsellor falls ill and some urgent business arises?

Such concerns occupied the mind of Sir Alan (Tommy) Lascelles, who in 1951, wrote to then Prime Minister Winston Churchill suggesting that the ‘margin of safety [was] dangerously narrow’ when only two counsellors were in the country. In practice, having three active counsellors is a return to early proposals for what became the Regency Act 1937. In 1935, originally three Counsellors of State were to be appointed, with later versions of the bill increasing this to four and adding the spouse of the monarch.

Clearly modern communications lessen the risk, but the bill perhaps misses an opportunity by not including the Princess of Wales. This would also allow for the Prince and Princess of Wales – who will become a Counsellor of State when her husband becomes King – to act together, which could be appropriate for some duties of a ceremonial nature, such as receiving ambassadors. Occasionally seeing the Prince and Princess of Wales in a more formal, constitutional capacity, would normalise the notion that one day they will become King and Queen. It would also demonstrate that it is the royal family as whole, rather than just the monarch, which serves the monarchy as an institution at the centre of the UK’s constitutional arrangements and at the heart of public life.

The future

Assuming that the King lives until 2034, Prince George will become a Counsellor of State when he turns 21, replacing Princess Beatrice. Princess Charlotte will replace Prince Andrew in 2036, and Prince Louis will supplant Prince Harry in 2039. Although the longevity of the Queen Mother, Prince Philip and Elizabeth II indicates that the Royal Family enjoy remarkably robust health, the issue of Counsellors of State will have to be revisited should Prince Edward or Princess Anne become unable to act. While in her nineties, the Queen Mother stopped acting as a Counsellor of State, as younger members of the royal family acted instead, but this may not be an option for Princess Anne or Prince Edward for some time.

Fundamentally, the Counsellors of State Bill does not address the emerging structural issues latent in the Regency Acts. The Acts persist with a presumption that seniority within the Royal Family stems solely from the line of succession rather than their actual public role. What if Prince George, Princess Charlotte or Prince Louis follow the route that their uncle, Harry, has taken?

The children of the Prince and Princess of Wales may also wish to ease themselves into life as a ‘working royal’. Before conducting public duties, they may pursue a career in the armed forces, attend university, or gain other experience before embarking on several decades of public service. Although being a Counsellor of State will be part of Prince George’s apprenticeship for the day he becomes King, this points to the broader need for further flexibility.

It is well known that the King intends to ‘slim down’ the size of the royal family. To some extent this has already happened following the decisions of Prince Harry and Prince Andrew. This has also gone further: the Duke of Kent has recently retired from conducting public duties, aged 87, and inevitably so will the Duke and Duchess of Gloucester, (aged 78 and 76 respectively). If there are no plans for younger members to take their place, the focus will increasingly fall on the direct line of succession. In 20 years’ time, the ‘working royals’ may only be King William V, Queen Catherine, Prince George, Prince Louis and Princess Charlotte, perhaps supported by Prince Edward and his wife, the Countess of Wessex. By then, Princess Anne will be in her nineties.

If there are not enough working royals to provide the required number of Counsellors of State, then others may need to be drafted in, possibly alongside a member of the Royal Family. Possible candidates include Supreme Court judges, who share with the royal family that necessary character of political neutrality. Before the Regency Act 1937 was passed, Counsellors of State appointed under the royal prerogative included non-royals. For example, in 1911, in addition to Prince Arthur of Connaught, the Counsellors of State included the Archbishop of Canterbury, the Lord Chancellor and Lord President of the Council. Another approach would be to allow the heir to the throne to act alone, at least for certain functions. There are partial precedents for this. For example, in 1909 and 1910, the Prince of Wales, (later George V) held Privy Council meetings under the authority of his father, Edward VII.

Conclusion

The Counsellors of State Bill follows a long tradition of regency legislation designed to confront specific problems arising at the time. Yet, if the decades ahead see the emergence of a new model of monarchy, focused almost exclusively on the direct line of succession, then this will need to be supported by the necessary machinery to ensure that the monarchy continues to fulfil its core legal and constitutional functions.

If you are interested in the Regency Acts, and other aspects of the future of the monarchy, the author was a panellist at two of the Unit’s 2022 seminar events. In March, he was on a panel to discuss The Platinum Jubilee and the Future of the Monarchy, and in October he was one of the speakers at our Planning for the Next Coronation, and the New Reign event.

About the author

Dr Craig Prescott is a Lecturer in Law at Bangor University.

Featured image: King Charles, Princess Anne, Prince Andrew and Prince Edward (CC BY-NC-ND 2.0) by UK Government.

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