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  #241  
Old 02-23-2022, 09:44 AM
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Why is there an impression that if the Duke of Sussex relinquished his lease on Frogmore Cottage, then it would change his domicile under UK law? While I am not a lawyer, the legal guidance from the UK Home Office makes it clear that the burden of proof would lie on the party advancing the claim that the Duke of Sussex had lost his British domicile of origin in favor of an American domicile of choice. It also seems to make clear that a single statement from Prince Harry that he has no intention to make the US his permanent home would suffice to defeat that claim.


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Originally Posted by Roslyn View Post
What I am not sure of though is whether without Harry there would only be three counsellors appointed or whether Beatrice would be added to make up four.
The text of the paragraph of the Regency Act of 1937 relating to potential Counsellors of State who will be absent from the UK leaves that ambiguous:

"Provided that, if it appears to the Sovereign that any person who, in accordance with the foregoing provisions of this subsection, would be required to be included among the Counsellors of State to whom royal functions are to be delegated, is absent from the United Kingdom or intends to be so absent during the whole or any part of the period of such delegation, the Letters Patent may make provision for excepting that person from among the number of Counsellors of State during the period of such absence."

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Originally Posted by Iluvbertie View Post
If Harry is ineligible than Beatrice automatically becomes the 4th eligible person.
Out of curiosity, what led you to change your view on this question?
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  #242  
Old 02-23-2022, 05:53 PM
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Originally Posted by Mbruno View Post
There has been much talk about what Consellors of State can do, but I think it is instructive to examine what they cannot, especially now that HM The Queen has tested positive for Covid and may become incapacitated (hopefully not). For example:

1. They cannot dissolve Parliament except on explicit instructions of the Sovereign to do so in the Letters Patent (I believe that the Queen Mother and Princess Margaret proclaimed a dissolution of Parliament under those circumstances as Counsellors of State in 1974). Right now, it is worth mentioning that this prohibition is irrelevant because the Queen herself can no longer dissolve Parliament under the Fixed-Term Parliaments Act (FTPA) 2011. However, the current government, as promised in their election manifesto, has introduced legislation in the British Parliament to repeal the FTPA and restore the royal prerogative of dissolution, so that provision will become relevant again.

2. They cannot appoint a new Prime Minister, if there is a need to change him or her.

3. They cannot grant ranks, titles or peerages.

4. They cannot exercise any power with respect to the Commonwealth realms. In practice, the Queen normally doesn't do much in the realms as most of her powers in and over the realms are delegated to the Governor General (or Governor-General depending on Australian/NZ or Canadian spelling, I will adopt the latter). There are, however, at least 3 roles that only the Queen alone can exercise in the realms, albeit always on the advice of the realm's Prime Minister:
  • Appoint a new Governor General under a royal commission (or, in the case of the Australian states, also appoint a new state governor ?).
  • Amend the Letters Patent constituting the office of Governor General, if needed.
  • Create new royal hono(u)rs or decorations by Letters Patent, which is a prerogative which King George VI insisted that it should remain with the Sovereign personally and not delegated to the Governor General, although actual decisions on honor awards are made in Australia or Canada by the Governor Governor as chancellor of the national orders.

That is indeed how the website of the British monarchy understands it, but where is it set out that functions 1, 2, and 4 are unavailable to Counsellors of State?

As far as I can see, the only limitation on delegation of royal functions to be stated in the Regency Act 1937 is in Section 6(1):
(1) In the event of illness not amounting to such infirmity of mind or body as is mentioned in section two of this Act, or of absence or intended absence from the United Kingdom, the Sovereign may, in order to prevent delay or difficulty in the despatch of public business, by Letters Patent under the Great Seal, delegate, for the period of that illness or absence, to Counsellors of State such of the royal functions as may be specified in the Letters Patent, and may in like manner revoke or vary any such delegation:

Provided that no power F3... to grant any rank, title or dignity of the peerage may be delegated.
Not only that, but Section 8(2) explicitly states
(2) In this Act, save as otherwise expressly provided, the expression “royal functions” includes all powers and authorities belonging to the Crown, whether prerogative or statutory, together with the receiving of any homage required to be done to His Majesty.

Thus my question is, which law is it "otherwise expressly provided" that the "royal functions" mentioned in section 6 to be available for delegation do not include appointing a prime minister, etc.?
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  #243  
Old 02-23-2022, 06:30 PM
Serene Highness
 
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Could the issue be more the practicality of someone who is living whether permanently or semi permanently in another country taking on the role.
Harry isn't in the USA for a short holiday.

How practical is it for him to hold the role.
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  #244  
Old 02-23-2022, 08:01 PM
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Quote:
Originally Posted by Tatiana Maria View Post
That is indeed how the website of the British monarchy understands it, but where is it set out that functions 1, 2, and 4 are unavailable to Counsellors of State?

As far as I can see, the only limitation on delegation of royal functions to be stated in the Regency Act 1937 is in Section 6(1):
(1) In the event of illness not amounting to such infirmity of mind or body as is mentioned in section two of this Act, or of absence or intended absence from the United Kingdom, the Sovereign may, in order to prevent delay or difficulty in the despatch of public business, by Letters Patent under the Great Seal, delegate, for the period of that illness or absence, to Counsellors of State such of the royal functions as may be specified in the Letters Patent, and may in like manner revoke or vary any such delegation:

Provided that no power F3... to grant any rank, title or dignity of the peerage may be delegated.
Not only that, but Section 8(2) explicitly states
(2) In this Act, save as otherwise expressly provided, the expression “royal functions” includes all powers and authorities belonging to the Crown, whether prerogative or statutory, together with the receiving of any homage required to be done to His Majesty.

Thus my question is, which law is it "otherwise expressly provided" that the "royal functions" mentioned in section 6 to be available for delegation do not include appointing a prime minister, etc.?
  1. The F3 key in the excerpt you quoted refers exactly to the original provision in the Regency Act, 1937 that the Counsellors of State could not proclaim a dissolution of Parliament except on explicit instructions of the Sovereign. The key is omitted in the legislation.gov.uk website because it is now probably spent due to the FTPA 2011 which, as I explained, removed the royal prerogative of dissolution in the United Kingdom.
  2. The part about having no authority over the realms is quite straightforward actually. The Regency Act, 1937 does not contain as far as I understand any section explicitly stating that its application extends to the dominions, so, under the interpretation clause in the Colonial Laws Validity Act, 1865, the act already did not apply to them when it was enacted regardless of the Statute of Westminster, which was already in force in Canada at the time, but not in Australia and New Zealand. Of course, if the Statute of Westminster were additionally taken into account, the Regency Act, 1937 could not extend to Canada anyway, as Canada never "requested and consented to" the enactment thereof under S.4 of the Statute of Westminster, 1931.
  3. The prohibition to grant peerages, as you have indicated, is explicitly mentioned in the Regency Act, 1937 as currently in force.
  4. With respect to the Prime Minister, I honestly do not know. The office of Prime Minister is part of the "unwritten conventions" of the constitution. In fact, the Prime Minister is not explicitly mentioned almost anywhere in British statutory law, or for that matter, in the law or the constitutions of Australia, Canada or New Zealand. Given that the appointment of the PM is regulated entirely by convention and not by statute, maybe so is the prohibition that Counsellors of State appoint a new Prime Minister. I am not sure though.

It is worth mentioning that all provisions in UK law relating to the Regency have been now incorporated into the law of New Zealand by virtue of Section 4(1) of the Constitution Act 1986 (reproduced below), but that Section does not apply explicitly to the Counsellors of State, who are not "Regents" technically speaking. But maybe the NZ members can clarify that point. In Australia or Canada, on the other hand, my understanding is that neither the CoS nor a Regent would have any authority whatsoever in or over those realms.

Quote:

Section 4 Regency

(1) Where, under the law of the United Kingdom, the royal functions are being performed in the same 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.


(2) Nothing in subsection (1) of this section limits, in relation to any power of the Sovereign in right of New Zealand, the authority of the Governor-General to exercise that power.
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  #245  
Old 02-23-2022, 08:03 PM
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Quote:
Originally Posted by Hallo girl View Post
Could the issue be more the practicality of someone who is living whether permanently or semi permanently in another country taking on the role.
Harry isn't in the USA for a short holiday.

How practical is it for him to hold the role.
As the Queen has shown through the covid lockdowns and even now she has covid - there is no need for the person to be in the same country anymore. Due to the inventions of phones and videos anything that the monarch has to do can be done with the monarch anywhere they want to be.

When the law was passed, in 1937, the monarch, or their representative had to be present in person but not now.

All the things a CoS has done in the past the Queen has been doing via either phone or video link for nearly two years now.
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  #246  
Old 02-24-2022, 03:42 AM
Serene Highness
 
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Quote:
Originally Posted by Iluvbertie View Post
As the Queen has shown through the covid lockdowns and even now she has covid - there is no need for the person to be in the same country anymore. Due to the inventions of phones and videos anything that the monarch has to do can be done with the monarch anywhere they want to be.

When the law was passed, in 1937, the monarch, or their representative had to be present in person but not now.

All the things a CoS has done in the past the Queen has been doing via either phone or video link for nearly two years now.
Does that mean the law has changed and they no longer need to be present in the country.
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  #247  
Old 02-24-2022, 04:23 AM
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The law is that had to be 'domiciled' in the country to have the role of CoS.

At no time did the law say that the monarch had to be in the country to exercise these duties and the Queen has shown that it is now perfectly possible for the monarch to do these duties from anywhere in the world as they don't need to be there 'in person'.

The law was from a time when if the monarch was out of the country much of the business of the country would either have to stop or someone else appointed to do it. Now that is no longer necessary and so the monarch can do all of the duties from wherever they are.
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  #248  
Old 02-24-2022, 09:44 AM
Serene Highness
 
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Quote:
Originally Posted by Iluvbertie View Post
The law is that had to be 'domiciled' in the country to have the role of CoS.

At no time did the law say that the monarch had to be in the country to exercise these duties and the Queen has shown that it is now perfectly possible for the monarch to do these duties from anywhere in the world as they don't need to be there 'in person'.

The law was from a time when if the monarch was out of the country much of the business of the country would either have to stop or someone else appointed to do it. Now that is no longer necessary and so the monarch can do all of the duties from wherever they are.
What I am trying to establish and it is only out of interest I do not intend this to be my stand on something, but as you say " When the law was passed, in 1937, the monarch, or their representative had to be present in person but not now."
So although in practice with the use of modern technology we are all much closer, does the original wording from the law state that the person must be there in person to carry out the role. I know they refer to domicile, but if a counsellor of state was required and for example William was on a 6 week tour abroad would he still be able to step up or would the original wording insist that it would be somebody that was here in the UK at the time.
As with all laws and legalities they have not always been amended to reflect modern life.
I do not know the answer, and I am not making a stand one way or another I just wondered. Would be interested in views.
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  #249  
Old 02-24-2022, 09:46 AM
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I think htat at the present, one has to be domiciled in the UK, regardless of whehter it is possible to zoom chat with the other Counsellors
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  #250  
Old 02-24-2022, 12:36 PM
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Thank you for your helpful answers, Mbruno.


Quote:
Originally Posted by Iluvbertie View Post
The question about Harry does relate to the term 'domiciled'. At its broadest modern meaning paying the lease on Frogmore qualifies Harry as 'domiciled' but when the legislation was written, I suspect, the intention was that the person had to actually permanently live in the UK.
The Home Office guidance indicates that the law traditionally distinguished domicile from living in a country. For example, it is explained that married women took their domicile from their husbands until 1974, even though it was surely possible in 1973 for a married woman and her husband to live in separate countries.

According to the same guidance, the Duke of Sussex would remain domiciled in the UK even if he broke the lease on Frogmore Cottage.


Quote:
Originally Posted by Iluvbertie View Post
Of course Andrew is still in the line of succession, as is Harry. Not even treason has been a reason to remove someone from the line of succession e.g. The Kaiser and the other British princes who fought against Britain in either or both WWI and WWII kept their place in the line of succession as well as that of their descendants. [...]

At that time the Queen of Norway was the 7th adult in the line of succession. Obviously the UK government didn't want to reach a point where she, or her son, would be eligible to be a CoS in the UK.
Given that the UK government approved of the Kaiser who fought against Britain remaining eligible to be King of the United Kingdom, why would they disapprove of the friendly Queen of Norway remaining eligible to be a Counsellor of State?


Quote:
Originally Posted by Hallo girl View Post
[...] So although in practice with the use of modern technology we are all much closer, does the original wording from the law state that the person must be there in person to carry out the role.
This is the original wording of Regency Act as it was passed in 1937: https://www.legislation.gov.uk/ukpga...6/1/16/enacted

Neither the original wording, nor the current wording, specifies that the monarch, Regent, or Counsellor of State must be present in the UK in order to exercise the royal functions.

Section 6 states that the monarch "may" delegate royal functions to Counsellors of State during her or his absences from the UK. She or he is is not obligated to.


Quote:
Originally Posted by Osipi View Post
If HM, The Queen is incapacitated in any way, a regency probably would be what is the solution and CoS wouldn't even be thought of.
Exactly. The Regency Act 1937 distinguishes between a "Regent", who automatically succeeds to the role once the monarch is declared to "incapable for the time being of performing the royal functions", and a "Counsellor of State", who is appointed at the pleasure of the monarch (who surely is not incapacitated if she or he is well enough to be making appointments).

2 Regency during total incapacity of the Sovereign.

(1) If the following persons or any three or more of them, that is to say, the wife or husband of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls, declare in writing that they are satisfied by evidence which shall include the evidence of physicians that the Sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or that they are satisfied by evidence that the Sovereign is for some definite cause not available for the performance of those functions, then, until it is declared in like manner that His Majesty has so far recovered His health as to warrant His resumption of the royal functions or has become available for the performance thereof, as the case may be, those functions shall be performed in the name and on behalf of the Sovereign by a Regent.


6 Power to delegate royal functions to Counsellors of State.

(1) In the event of illness not amounting to such infirmity of mind or body as is mentioned in section two of this Act, or of absence or intended absence from the United Kingdom, the Sovereign may, in order to prevent delay or difficulty in the despatch of public business, by Letters Patent under the Great Seal, delegate, for the period of that illness or absence, to Counsellors of State such of the royal functions as may be specified in the Letters Patent, and may in like manner revoke or vary any such delegation:
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  #251  
Old 02-24-2022, 02:29 PM
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As quoted above CofS are appointed
Quote:
in order to prevent delay or difficulty in the despatch of public business
The technological advances made in the last 85 years have all but eliminated these. There was no requirement that things be done "in person", but meeting virtually 85 years ago was obviously not possible. The Queen has not traveled outside the UK in several years, and COVID has proven to us that many things can be done virtually these days.

All that to say, CofS are not nearly as necessary as they used to be. They would only be needed in the event that the monarch is too ill to tend to public business, Then the question becomes is a CofS needed or is a regency called for.
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  #252  
Old 02-24-2022, 05:59 PM
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Quote:
Originally Posted by Hallo girl View Post
What I am trying to establish and it is only out of interest I do not intend this to be my stand on something, but as you say " When the law was passed, in 1937, the monarch, or their representative had to be present in person but not now."
So although in practice with the use of modern technology we are all much closer, does the original wording from the law state that the person must be there in person to carry out the role. I know they refer to domicile, but if a counsellor of state was required and for example William was on a 6 week tour abroad would he still be able to step up or would the original wording insist that it would be somebody that was here in the UK at the time.
As with all laws and legalities they have not always been amended to reflect modern life.
I do not know the answer, and I am not making a stand one way or another I just wondered. Would be interested in views.

A CoS had to be in the UK at the time to carry out the duties so if William was on a six week tour abroad he would be ineligible to serve as the law is currently stated.

The idea was the the CoS would 'in person' do things like chair the Privy Council and receive the incoming and outgoing High Commissioners and Ambassadors. Until 2020 it was assumed that those things could only be done 'in person' but we have now seen that it is possible to do them via video and have them regarded as valid as doing them in person ... the law hasn't changed but the practice has.
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  #253  
Old 02-24-2022, 08:04 PM
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Quote:
Originally Posted by Iluvbertie View Post
A CoS had to be in the UK at the time to carry out the duties so if William was on a six week tour abroad he would be ineligible to serve as the law is currently stated.
The law does not require a Counsellor of State to be in the UK. It allows that the monarch may, by Letters Patent, disqualify an otherwise eligible Counsellor of State who will be absent from the United Kingdom, but the disqualification is not mandatory or automatic.

Provided that, if it appears to the Sovereign that any person who, in accordance with the foregoing provisions of this subsection, would be required to be included among the Counsellors of State to whom royal functions are to be delegated, is absent from the United Kingdom or intends to be so absent during the whole or any part of the period of such delegation, the Letters Patent may make provision for excepting that person from among the number of Counsellors of State during the period of such absence.

https://www.legislation.gov.uk/ukpga/Edw8and1Geo6/1/16
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  #254  
Old 02-27-2022, 05:10 AM
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This documents was published on the House of Common Library on 22 February 2022:

https://commonslibrary.parliament.uk...ings/cbp-9374/

From Chapter 4: Proposal for Reform, page 33
Quote:
(...)

Brazier therefore proposed “fresh legislation”, partly to:
sweep away the difficulties identified in the Regency Acts, and perhaps to make explicit provision for [a] Chief Counsellor of State (under any monarch), but also to permit any Sovereign to put a Regent into office and in a much more flexible regime than is possible now. It should be left to the monarch’s discretion to decide the circumstances in which the appointment of a Chief Counsellor, or Counsellors of State, or a Regent, should be made.
Brazier further suggested that a monarch might “reserve” certain functions to themselves “while delegating the more onerous tasks to the heir apparent or any other members of the royal family who might form a pool for the purpose”, thus avoiding “the great unmentionable of abdication”.
Greater flexibility in all this would be the key to a revised system which should ensure that, for the current and next Sovereign, the duties cast by law and practice on the monarch could continue to be discharged satisfactorily in foreseeable circumstances.
The law lecturer Craig Prescott echoed this call for greater “flexibility” in 2022, arguing that rather than removing certain Counsellors of State, allowance could be made “for other members of the royal family to become Counsellors of State – Princess Anne and Prince Edward, for example”, something that would require legislation.

Having reflected on the possible impact of a UK Regency in the Commonwealth Realms, meanwhile, Anne Twomey concluded that “it would be unsatisfactory for one of the complex layers of checks and balances – the power to remove a vice-regal officer – to be potentially stymied” during a long Regency. She urged lawmakers to “address the constitutional complexities involved” before “such circumstances arise”.

(...)
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  #255  
Old 03-07-2022, 09:55 AM
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Quote:
Originally Posted by yukari View Post
This documents was published on the House of Common Library on 22 February 2022:

https://commonslibrary.parliament.uk...ings/cbp-9374/

[...]

Thank you for sharing this report! There is a wealth of interesting information in it.

Unfortunately, there are also many errors of fact in the report where it summarizes the Regency Act 1937 (for example: it erroneously states that a widowed queen would not assume guardianship of her unmarried daughter and that an incapacitated regent could not be reinstated after regaining capacity) which lead me to question the reliability.

But the report does clarify a few of the issues discussed here. For one, the reason why a consort is eligible to serve as Counsellor of State but not as Regent, and why a single person is allowed to serve as Regent but a minimum of two people at any given time must carry out the duties delegated to Counsellors of State, is apparently that the legislators did not want Wallis Simpson (in case she married the King) serving as Regent and would only accept her as Counsellor of State if she shared the role with another person. (Frankly, I find it silly that constitutional arrangements in 2022 are based on the king's lover's unpopularity in 1937.)

It also states that the Regency Act of 1910 imposed a residency requirement and not merely a domicile requirement as in the Regency Act of 1937. If true, I wonder why the residency requirement was discontinued?

It didn't occur to me until reading the report, but it's true that under the Regency Act of 1937, Princess Margaret would not only have become Regent if Elizabeth had died while Charles was under 18, but she would also become Charles's (but not Anne's) legal guardian, even with his father still living. I assume that factored into why action was taken to appoint Philip as an eligible regent and guardian through the Regency Act of 1953.

I don't quite understand why the government in 1937 decided that a widowed mother of a child monarch should be given guardianship of her child, but a widowed father should not. Was it for the same purposes as allowing male monarchs but not female ones to share their rank with their wives/husbands?
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