Introduction

On 19th January, after discussions within the Royal Family, it was announced that the Duke and Duchess of Sussex will step back from royal duties, no longer receive public funds, or ‘formally represent the Queen’. Neither will they use their HRH titles, and more generally they will not be classed as ‘working members of the Royal Family’. Instead, the Sussexes will pursue a new life in Canada, outside the structure of the Royal Family, although they have committed to continue to ‘uphold the values of Her Majesty’.

Not all the details of this arrangement have been finalised ahead of its implementation in the Spring and given that Prince Harry is sixth in the line of succession it may appear that there are few, if any, constitutional implications. However, this blog addresses perhaps the one constitutional issue that the Sussexes decision raises – Prince Harry’s position as a Counsellor of State – as required by the Regency Acts 1937-1953 (‘the Acts’). Unless the legislation is amended, this issue is likely to increase in importance throughout this decade, and into the next.

The functional role of the monarchy

Understanding the situation requires a reminder of the day-to-day functions of the monarch as Head of State. By law, the monarch’s approval is required for many decisions of a constitutional or legal nature, even if in substance, that decision has been taken elsewhere. Until the necessary approval has been granted, the decision is no of legal effect. Examples include: granting the royal assent to bills passed by the House of Commons and House of Lords; issuing a royal proclamation to summon a new parliament; appointing judges and Queen’s Counsel; formally ratifying treaties (once the requirements of the Constitutional Reform and Governance Act 2010 have been complied with); conferring peerages; and approving appointments to offices such as the Information Commissioner (to just give one example). As Brazier states, “[b]ecause the monarch is part of the legal machinery of government it is essential that the monarch is always available to function as such” (p 352).

The Acts provide for the permanent availability of the monarch, or at least for someone to act on their behalf by providing for a Regency or Counsellors of State to act in place of the monarch. Under Section 2, a regency is declared if “by reason of infirmity of body or mind” the monarch is incapable of performing the “royal functions”. If the monarch’s illness is not sufficiently serious to justify a Regency, or they are expected to be unavailable due to their “absence or intended absence from the United Kingdom”, then, under Section 6, Counsellors of State are appointed. Prince Charles, as first in the line of succession, would be the Regent. Subject to some exceptions, which are irrelevant for this discussion, at Section 8, the Acts define “royal functions” as “all powers and authorities belonging to the Crown, whether prerogative or statutory”. This means that by law, a regent or Counsellors of State can grant the royal assent, approve a request to prorogue Parliament, or even appoint a new Prime Minister. There are significant questions over how the Acts provide for a Regent, but as this blog is focusing on Counsellors of State, those are for another day.

Counsellors of State

The Acts require that the following five members of the Royal Family are appointed as Counsellors of State: Prince Philip (as spouse of the monarch); Prince Charles; Prince William; Prince Harry; and Prince Andrew (as the first four in the line of succession of full age). It is important to note that for the purposes of the Acts, ‘full age’ is 21, as the Family Law Reform Act 1969, which reduced the age of majority to 18, does not apply to the Acts. If Counsellors of State are appointed during a Regency, then the fifth in line to the throne, over 21 years of age, would be appointed as a Counsellor in place of the Regent. This would be Princess Beatrice. Appointments are made by Letters Patent, with those eligible unable to refuse being chosen. As discussed below, out of this pool of appointments, two Counsellors act jointly.

The Queen’s robust health has meant that during her reign, Counsellors of State have only been appointed in advance of her overseas travel. According to entries in the London Gazette, Counsellors of State were last appointed in 2015 when the Queen attended the Commonwealth Heads of Government Meeting in Malta. Now the Queen no longer travels abroad, no Counsellors of State have been required since. Should they ever be required again during the Queen’s reign, presumably Prince Charles and Prince William would be the two Counsellors who would act.

Looking to the future, the monarch, as Head of State is expected to accept invitations for state visits from other countries. Currently, members of the Royal Family, in particular Prince Charles and Prince William represent the Queen overseas. As Regent (should one ever be declared) or as monarch in his own right, Prince Charles’s overseas travel will require the appointment of Counsellors of State once again.

Under a Regency or the reign of King Charles III, the Counsellors appointed will be the Duchess of Cornwall (as wife of the Regent or the monarch) and the next four in line to the throne, which will be Prince William, Prince Harry, Prince Andrew, and Princess Beatrice. Those last three will be replaced as the children of Prince William and the Duchess of Cambridge reach 21, meaning that Prince George will be appointed as a Counsellor of State from 2034, Princess Charlotte from 2036, and Prince Louis from 2039. Should William accede to the throne or act as Regent before 2031, Princess Eugenie will become a Counsellor of State, to replaced by Prince George when he becomes 18, because as the heir apparent, he becomes a Counsellor of State from the age of 18 instead of 21.

The problem

The problem is that under a Regency or the reign of Prince Charles, the only full working member of the Royal Family who will be appointed as a Counsellor of State will be Prince William, at least until his children reach 21 in the 2030s. Whether as regent or monarch, Charles will usually be accompanied by the Duchess of Cornwall on visits abroad, meaning that she will be unable to act. Neither will Prince Harry in light of his decision and statement from Buckingham Palace that he will ‘no longer formally represent the Queen’. The Acts specifically allow the Letters Patent appointing the Counsellors of State to exclude those who are absent from the United Kingdom during the relevant period, but no others can be appointed in their place. Princess Beatrice has been encouraged to seek a role away from the royal family and works for a global company working in the field of artificial intelligence. Given the nature of some “royal functions”, such as approving the appointment of judges, and the circumstances that led to his withdrawal from public life, it is difficult to see how Prince Andrew could act.

As a side note, should Prince Harry’s new life lead to him becoming permanently based overseas to the point that he is no longer a British subject and domiciled in the United Kingdom, then he will become ineligible to be appointed as Counsellor. In these circumstances, Princess Eugenie would replace him, but like her sister she is not a “working royal”.

This means that for the foreseeable future, only Prince William is left. Even then, members of the royal family are expected to conduct numerous engagements across the UK, and with fewer royals to shoulder this burden, this demand is going to increasingly fall on Prince William and the Duchess of Cambridge. Being, in practice, the only available Counsellor of State could conflict with these other demands. For example, there have been occasions when legislation urgently requires royal assent, such as when the Parliamentary Voting System and Constituencies Act 2011 required royal assent the very evening of its passage in the House of Lords, and legislation relating to Northern Ireland has needed to be enacted quickly. There is a small, but genuine risk that that the non-availability of Counsellors of State could impede the operation of the constitution.

A further difficulty is that the Acts appear to be predicated on the pre-existing common law position that at least two Counsellors of State needed to act jointly. The Acts state that the functions “shall be exercised jointly”, or “by such number of them as may be specified in the Letters Patent”. Brazier suggests that the latter permits a Counsellor of State to act individually if provided for in the Letters Patent (pp379-380), but accepts that any exercise of the royal functions by a single Counsellor of State that had any legal consequence could be at risk of a legal challenge. The approach of the Supreme Court in R (Miller) v Prime Minister surely increases this risk. In Miller, the Court showed a general willingness to intervene in cases involving the royal functions (such as prorogation), and in this instance, the issue would be one of statutory interpretation rather than a challenge to the exercise of a prerogative power. In the interests of legal certainty, the Acts could be amended to make clear that a Counsellor of State could act alone.

To paraphrase Bagehot, the problem is that the dignified elements of the constitution risk obstructing the efficient. To avoid this, it is clear that reform is needed and that the matter is becoming increasingly urgent. Prince Harry’s decision and a government enjoying a large majority may provide the moment for a fairly minor constitutional reform.

A slimmed down monarchy?

Another reform would be to extend the potential pool of Counsellors of State to further down the line of succession. The two most obvious candidates for inclusion are those next in the line of succession, Princesses Beatrice and Eugenie. This challenges Prince Charles’s widely reported wish to reduce the size of the monarchy, which has led to Beatrice and Eugenie not working as full-time royals. Given that Prince Harry will shortly join Prince Andrew in not fulfilling public duties, this blog has highlighted one of the ways this may now be thought to be unfortunate.

At the broadest level, the powers of the monarchy reflect its position at the apex of the British state. Over the past 40 years, the state has been hollowed out by privatisation and contracting out. What better reflection of this modern state could there be than a ‘part-time’ royal, popping in from their real “day job” to attend a Privy Council meeting as a Counsellor of State at Buckingham Palace? The edifice becomes a farce. Brexit, and the manifestos of the main parties at the 2017 and 2019 general elections indicate a shift towards a greater role for the state and for national institutions more generally, which in time, the monarchy will need to reflect.

There needs to be a debate about what sort of monarchy the UK requires in this and the next few decades. Once that question is addressed, then the necessary duties can be performed by a sufficient number of working royals. The problem highlighted by the Regency Acts is that slimming down the monarchy without recalibrating what is expected from it risks those expectations not being met, which will lead on to further questions about its long-term future.

Craig Prescott, Centre for Parliament and Public Law, The University of Winchester, @craigprescott

(Suggested citation: C. Prescott, ‘Harry and Meghan, Regency, Counsellors of State and a “Slimmed Down” Royal Family’, U.K. Const. L. Blog (21st Jan. 2020) (available at https://ukconstitutionallaw.org/))