Counsellors of State

[Durham]

No being a working royal has never been a requirement - in fact a person hasn't had even to be a royal e.g. the late Earl of Harewood served in the 1950s when he was the fourth adult over 21 and in the 1940s, during the war an even more distant relative was the fourth adult.

Being a non-working royal could almost be an advantage as no official engagements would have to be cancelled or rescheduled to allow a CoS to do the necessary job.

This would be Alastair Connaught? As well as his mother & aunt at different times.

 

[Iluvbertie]

I am not sure who it was in the 1940s as I haven't gone back that far for my research into the CC. I am doing the Queen's reign at the moment and when I have done that as much as I can ... given that I can't access 1986-1996 at all ... I will go back and do George VI's reign. That will include a study of who was a CoS and their dates as that is something I do record in my study.

 

[tommy100]

Personally I'd change it to include the Prince/Princess of Wales's spouse and then anyone in the line of succession over 21 the monarch of the time chooses. This would avoid putting in too may specific laws and just allow the sovereign of the time to pick whomever is best - today that could mean that in times when Charles and William were away overseas Anne and Edward could be selected even if it meant periodically making a declaration of who those people are.

 

[Iluvbertie]

That was the case prior to George VI's changes. He, and the government, felt it was too 'ad hoc' and required a tighter regulation which lead to the case now - the spouse of the monarch and the first four over 21 in the line of succession (heir apparent over 18 - although Elizabeth was added to the list at 18 even though only the heir presumptive).

 

[Tatiana Maria]

Here is an interesting and more technical legal discussion of the Counsellor of State issue:

https://ukconstitutionallaw.org/202...ors-of-state-and-a-slimmed-down-royal-family/

I see, so the clause "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" in the Regency Act 1937 is read as stating that a minimum of two Counsellors of State must be in simultaneous service. (I had interpreted it to mean only that when multiple Counsellors are appointed then they would carry out their duties jointly.)

Frankly, I don't see why two people should be needed to carry out the monarch's duties during a short-term regency, when only one person suffices to carry out the duties of the monarch in normal times or during an extended regency (articles 1 and 2 of the Regency Act).

https://www.legislation.gov.uk/ukpga/Edw8and1Geo6/1/16

 

[tommy100]

That was the case prior to George VI's changes. He, and the government, felt it was too 'ad hoc' and required a tighter regulation which lead to the case now - the spouse of the monarch and the first four over 21 in the line of succession (heir apparent over 18 - although Elizabeth was added to the list at 18 even though only the heir presumptive).

I can see it from that point of view - too ad hoc, but since the 1930s times have changed and now that really could mean appointing someone who isn't going to be a "full time working royal". In some sense it is worth keeping it as broad as possible and letting the monarch of the day decide.

 

[Iluvbertie]

It has always been possible to not be a 'full-time working royal' and be appointed. Andrew, Edward and Anne were all eligible to be appointed before becoming working royals as were both William and Harry. Edward was almost through his time as being eligible before he became a full time working royal ... he didn't become full-time until 2001 and stopped being a CoS in 2005, when Harry turned 21.

 

[duchesschicana]

---

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.

Since harry absent in the UK there is probably other long term alternatives in place despite him still being in the list. And if Parliament really wanted do they probbaly could appoint someone else concerning andy as they are the only ones with power to do so

 

[Mbruno]

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.

 

[Lady Daly]

Has a decision been made regarding Prince Harry continuing as a Counsellor of State? Appearing to now permanently live in the US having given up royal duties, and his honorary and military titles?

Also, should Prince Andrew continue as a Counsellor of State considering his current demoted status as no longer a working royal, etc.etc.?

It seems quite absurd that Prince Andrew is still in the line of succession and also Prince Harry considering his public display against the royal family. These two are quite the antithesis of Queen Elizabeth and Prince Charles.

https://www.royal.uk/counsellors-state

 

[Somebody]

According to some sources Harry wants to renew the lease for Frogmore Cottage so he can stay 'domiciled' in the UK, which is a requirement to be Counsellor of State.

I'd say the core of the problem (if it is considered to be a problem that they are eligible to be appointed as Counsellor of State) is indeed that they remain in the line of succession, so could potentially be called upon to become king. Because of that, they are also eligible to be Counsellors of State. However, as only 2 are needed at any given time (i.e., when there is a need to appoint them), currently, Charles and William could take that role if needed during Elizabeth's reign (as it is the queen who can specify whom among those eligible she will pick to carry out these duties - and she would surely pick her two immediate heirs for that role).

After Charles ascends the throne, there are 5 potential Counsellors of State: Camilla, William, Harry, Andrew and Beatrice (until George comes of age in 2031). So, Charles could still avoid appointing his controversial son or brother and instead pick his wife and eldest son (and Beatrice could stand in for either one of them if needed).

 

[Mbruno]

It seems quite absurd that Prince Andrew is still in the line of succession and also Prince Harry considering his public display against the royal family. These two are quite the antithesis of Queen Elizabeth and Prince Charles.

https://www.royal.uk/counsellors-state

Removing someone from the line of succession is actually quite complicated. The line of succession is defined by law and the law cannot be changed unilaterally by the King or the Queen in the United Kingdom. Changing the law requires an act of the British Parliament.

To make things even more complicated, the line of succession applies not only to the UK properly, but also to 14 other countries (including Australia, Canada and New Zealand) where the Queen is also Head of State. Accordingy, an act of the UK Parliament called the Statute of Westminster, 1931, which is still in force in the UK, says in its preamble that:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom

Therefore, in the best case scenario, to enact any change in the line of succession, the Parliament of the United Kingdom would also need the assent of the "Parliaments of all the Dominions", which, in modern language, would mean all the other Commonwealth realms.

Furthermore, some of the realms, for example Australia (including all Australian states individually in addition to the Federation properly) and New Zealand (but not, in this case, Canada) additionally understand, as seen in the debate over the recent Succession to the Crown Act 2013, that the succession law is also part of their domestic law, so, more than just "assenting" to any new British legislation changing the order of succession, they believe they have to change their own law (by separate acts of their own Parliaments) to keep the symmetry between the lines of succession in the UK and in their own countries. All that is a very lengthy process, which is why, for example, it took almost two years for the Succession to the Crown Act 2013 to come into force in the UK.

Removing someone from the position of Counsellor of State is, however, much simpler. Legislation would also be normally required, unless the person in question had already disqualified himself (or herself) on the ground of domicile requirements for example, but it would be a purely British domestic matter. As I explained before the role of Counsellor of State does not extend to the Commonwealth realms, which already have a Governor General to perform the Queen's role, and, in the event that the Governor General was also unavailable, could call on a so-called "Administrator" of the goverment to replace him or her. In Canada, for example, that would automatically be the Chief Justice of Canada as seen recently when GG Julie Payette resigned and the Administrator took over for six months or so until HM The Queen appointed Her Excellency The Rt Hon Mary May Simon CC CMM COM OQ CD FRGCS to replace Mme. Payette.

 

[Lady Daly]

Thank you Somebody and MBruno for your informative posts.

 

[Tatiana Maria]

Here is some further guidance on the legal term "domicile" from the Home Office.

https://assets.publishing.service.g...t_data/file/632058/domicile-guidance-v1.0.pdf

Below are some excerpts from the guidance which seem especially material to the discussions here about the Duke of Sussex:

Domicile of origin

At birth every person acquires a domicile of origin.

The domicile of a new-born child's depends on the domicile of their parent at the time of birth.

[...]

Domicile of choice

A person can acquire a domicile of choice instead of their domicile of origin. To do
this they must both:

• reside in a place
• form a clear and fixed intention of making their permanent home or indefinite
residence in that one country

[...]

The degree of proof required to establish that a domicile of origin has been displaced in favour of a domicile of choice is high. The courts have said that "unless you are able to show with perfect clearness and satisfaction, that a new domicile has been acquired, the domicile of origin continues" (Bell -v- Kennedy LR 1 Se & W App 310). This can mean that, whilst a range of evidence will normally be needed to show that a change of domicile has occurred, a single piece of evidence may be enough to show that there has been no change of domicile (such as a statement by the person concerned that they had no intention of making the place in question their permanent home).

 

[Iluvbertie]

The only requirement to be a CoS is to be one of the first 4 adults in the line of succession over 21 (or 18 if heir apparent). There is no requirement for them to be a working royal or even a royal e.g. The late Earl of Harewood served as a CoS for the first few years of The Queen's reign and he wasn't even royal, let alone a 'working royal'. He actually said it was probably easier for him to serve as he didn't have to work around public engagements and could simply fit it in with his day to day work.

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.

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. 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.

 

[Mbruno]

Here is some further guidance on the legal term "domicile" from the Home Office.

https://assets.publishing.service.g...t_data/file/632058/domicile-guidance-v1.0.pdf

Below are some excerpts from the guidance which seem especially material to the discussions here about the Duke of Sussex:

I am not a British judge, but common sense to me would dictate that, if Prince Harry became a legal permanent resident in the US under US immigration law, then a "change of domicile" would be characterized regardless of whether Harry owns or leases a home in the UK or not. As of now, however, I don't think Harry is a permanent resident yet (as in a Green Card holder specifically).

If, however, the British courts follow the approach that a change of domicile is characterized only if the person explicitly declares that he never, ever intends to return to his domicile of origin, then I guess that arguing that Harry is not domiciled in the UK would be very hard indeed.

 

[Sionevar]

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.

I think you're exactly right. It's all very well for Harry to say he is still domiciled in the UK, but if he was actually called up to act as a CoS, how on earth would he be able to do it? I can't imagine it's the type of duty that can be discharged via Zoom from several time zones away. Or, did Covid change all that? Is it as easy to take care of from LA as it is from Windsor?

 

[tommy100]

If it can be done from LA then surely if the Queen did need to appoint CoS again she could appoint Charles and William each time even if they were overseas and they could Zoom in from wherever they are visiting, fitting it around any public duties required in the country they are in?

If you can Zoom in to be a CoS then actually it makes things easier probably.

 

[Iluvbertie]

I think you're exactly right. It's all very well for Harry to say he is still domiciled in the UK, but if he was actually called up to act as a CoS, how on earth would he be able to do it? I can't imagine it's the type of duty that can be discharged via Zoom from several time zones away. Or, did Covid change all that? Is it as easy to take care of from LA as it is from Windsor?

Covid has changed all that as everything the Queen delegates to CoSs she has been doing via video or phone e.g. all Privy Council meetings have been via video for nearly two years now, most, if not all meetings with High Commissioners and Ambassadors have been via video also for close on two years and meetings with the PM have been via phone for the same length of time.

Actually covid has shown that, with modern technology, there is no need for CoSs anymore at all as the monarch can discharge those duties from anywhere in the world.

 

[LauraS3514]

Covid has changed all that as everything the Queen delegates to CoSs she has been doing via video or phone e.g. all Privy Council meetings have been via video for nearly two years now, most, if not all meetings with High Commissioners and Ambassadors have been via video also for close on two years and meetings with the PM have been via phone for the same length of time.

Actually covid has shown that, with modern technology, there is no need for CoSs anymore at all as the monarch can discharge those duties from anywhere in the world.

The issue would be if, God forbid, HM would become incapacitated, i.e. her covid becomes serious and she needs the hospital or a ventilator. We have learned over the last two years that Covid-19 is a capricious disease that you can't tell going in just what your prognosis may be: otherwise perfectly healthy young people have had poor outcomes while octogenarian obese diabetic smokers have completely recovered.

Possible health issues are the one instance where CoS would be needed, at least on a short-term basis or until a Regency can be put in place. IMO, they should expand the number of eligible persons to cover all contingencies. Adding Camilla and Catherine as the spouses of the future Kings would be one way, or adding one or two other adults in the line of succession could be another - maybe going from the first four to the first six or seven? Also, just because a person is on the list does not mean they have to be appointed.

 

[duchesschicana]

The issue would be if, God forbid, HM would become incapacitated, i.e. her covid becomes serious and she needs the hospital or a ventilator. We have learned over the last two years that Covid-19 is a capricious disease that you can't tell going in just what your prognosis may be: otherwise perfectly healthy young people have had poor outcomes while octogenarian obese diabetic smokers have completely recovered.

Possible health issues are the one instance where CoS would be needed, at least on a short-term basis or until a Regency can be put in place. IMO, they should expand the number of eligible persons to cover all contingencies. Adding Camilla and Catherine as the spouses of the future Kings would be one way, or adding one or two other adults in the line of succession could be another - maybe going from the first four to the first six or seven? Also, just because a person is on the list does not mean they have to be appointed.

I dont think we have anything to worry about Charles is well again. I would it be easy for parliament to establish a coregency if unfortunately the Queen needs it. Honestly, I think parliament has bigger things to worry about then who is on the COS, considering Covid/potential wars going on. They probably already made some alternate arrangements concerning COS and Harry and Andy . As their acts say if a COS away long term alternate arangements will be made and if parliament really wanted to they could skip Andy. Like I said bigger things to Worry about though

 

[Iluvbertie]

The issue would be if, God forbid, HM would become incapacitated, i.e. her covid becomes serious and she needs the hospital or a ventilator. We have learned over the last two years that Covid-19 is a capricious disease that you can't tell going in just what your prognosis may be: otherwise perfectly healthy young people have had poor outcomes while octogenarian obese diabetic smokers have completely recovered.

Possible health issues are the one instance where CoS would be needed, at least on a short-term basis or until a Regency can be put in place. IMO, they should expand the number of eligible persons to cover all contingencies. Adding Camilla and Catherine as the spouses of the future Kings would be one way, or adding one or two other adults in the line of succession could be another - maybe going from the first four to the first six or seven? Also, just because a person is on the list does not mean they have to be appointed.

If she is incapacitated then they can have a REGENCY which means Charles doing all of her duties - not just the couple that a CoS can do.

Under the existing laws only those who meet the criteria can be appointed. There is no need to add anyone. Only two are needed and from my reading of the CC they have been appointed for a specific duty on a given day so not ongoing.

 

[Osipi]

The more I read this thread, the more the thought comes to me that we really don't know what will happen when CoS are chosen for any reason. Right now, we're just playing with the what ifs and what may be.

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.

OK. I do have a question though now. In the event of a regency, would the CoS be the same as in QEIIs reign or would they be based on who the regent is at the time (adding another "eligible" person to the 4 CoS to choose from as Charles is acting as regent/king in his mother's stead).

 

[Iluvbertie]

That would be a question for the lawyers as it isn't stated in the legislation but I would assume it would still be the four adults in the line of succession and the spouse of the monarch.

 

[wbenson]

OK. I do have a question though now. In the event of a regency, would the CoS be the same as in QEIIs reign or would they be based on who the regent is at the time (adding another "eligible" person to the 4 CoS to choose from as Charles is acting as regent/king in his mother's stead).

Yes, another person would be added according to the legislation.

Section 6(4) of the Regency Act 1937 says:

The provisions of this section shall apply in relation to a Regent with the substitution for references to the Sovereign of references to the Regent, so, however, that in relation to a Regent subsection (2) of this section shall have effect as if after the word “next,” where that word first occurs therein, there were inserted the words “after the Regent”.

Applying that to subsection (2), the counsellors of state this include "the four persons who, excluding any persons disqualified under this section, are next [after the Regent] in the line of succession to the Crown." So, if there was a regency under the present circumstances, Princess Beatrice would become eligible.

 

[muriel]

I think we are slowly edging towards a time when the arrangements in relaton to Counsellors of State will be amended. As it is like;y to require Parliamentary support, I have no doubt there will be support across the political spectrum, and the legislation will pass quickly, once introduced.

 

[Mbruno]

The more I read this thread, the more the thought comes to me that we really don't know what will happen when CoS are chosen for any reason. Right now, we're just playing with the what ifs and what may be.

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.

OK. I do have a question though now. In the event of a regency, would the CoS be the same as in QEIIs reign or would they be based on who the regent is at the time (adding another "eligible" person to the 4 CoS to choose from as Charles is acting as regent/king in his mother's stead).

A regency requires that the Queen be certified to be incapacitated based on medical evidence. That determination, I think, has to be made by at least 3 of the following 4 people: the Speaker of the House of Commons, the Lord Chancellor, the Lord Chief Justice of England, and the Master of the Rolls. A fifth person who could also certify the Queen's incapacity under the law would be her husband, but he is already deceased.

As for what happens to the CoS under a regency, I don't really know for sure, but my interpretation of the text of the law is that the next four in people in line to the throne after the Regent would become eligible to be appointed CoS (in other words, as of today, if Charles became regent, Beatrice would also be added as a potential CoS).

2)Subject as hereinafter provided, the Counsellors of State shall be the wife or husband of the Sovereign (if the Sovereign is married), and the four persons who, excluding any persons disqualified under this section, are next in the line of succession to the Crown, or if the number of such persons next in the line of succession is less than four, then all such persons.


[...]
The provisions of this section shall apply in relation to a Regent with the substitution for references to the Sovereign of references to the Regent, so, however, that in relation to a Regent subsection (2) of this section shall have effect as if after the word “next,” where that word first occurs therein, there were inserted the words “after the Regent”.

 

[Lady Daly]

I just finished reading Marlene Eilers Koenig's Blog Royal Musings "Who are the Counsellors of State". Excellent indepth overview. I especially enjoyed the timeline beginning with the first Counsellors of State, established by the 1937 Regency Act. An excellent read.
Marlene also recommended Vernon Bogdanor's book "Monarchy and the Constitution".
Royal Musings: Who are the Counsellors of State

 

[Mbruno]

I just finished reading Marlene Eilers Koenig's Blog Royal Musings "Who are the Counsellors of State". Excellent indepth overview. I especially enjoyed the timeline beginning with the first Counsellors of State, established by the 1937 Regency Act. An excellent read.
Marlene also recommended Vernon Bogdanor's book "Monarchy and the Constitution".
Royal Musings: Who are the Counsellors of State

Vernon Bogdanor, who was BTW David Cameron's tutor at Oxford, seems to think, according to Marlene Koenig, that Prince Harry does not meet the criteria for being "domiciled" in the UK as far as the Regency Acts are concerned. But Professor Bogdanor is a political scientist and a historian, not a lawyer or a Professor of Law. As Marlene said, the Palace has confirmed that, for now at least, Prince Harry remains an eligible Counsellor of State.

 

[Lady Daly]

Vernon Bogdanor, who was BTW David Cameron's tutor at Oxford, seems to think, according to Marlene Koenig, that Prince Harry does not meet the criteria for being "domiciled" in the UK as far as the Regency Acts are concerned. But Professor Bogdanor is a political scientist and a historian, not a lawyer or a Professor of Law. As Marlene said, the Palace has confirmed that, for now at least, Prince Harry remains an eligible Counsellor of State.

I noticed Marlene's discrepancy clarification regarding Prince Harry. So it appears if Prince Harry continues his Frogmore lease he will maintain domicile in the UK. 'Somebody' had mentioned that several posts previous as well.

Thank you for keeping us informed, as always.

https://en.m.wikipedia.org/wiki/Vernon_Bogdanor - out of further curiosity I googled Prof Bogdanor.