Monday, 21 February 2022

Counsellors of State

Privy Council:

Most actions of the the Privy Council do not attract a great deal of public attention but that was not the case when, on 28 August 2019, the Privy Council held a meeting at Balmoral and decided to prorogue Parliament from a date between 9 and 12 September 2019 until 14 October 2019 - see Privy Council 28.8.2019

That meeting was attended by HM The Queen and three Privy Counsellors - Rt. Hon Jacob Rees-Mogg, Rt. Hon Baroness Evans of Bowes Park, and Rt. Hon Mark Spencer. Jacob Rees-Mogg was then Lord President of the Council. That post is now held by Mark Spencer.

The prorogation was, in law, a decision

of the Crown made under Royal Prerogative power BUT, in practice, the Queen acts on the advice of the Prime Minister. The requirement to follow that advice is a constitutional convention rather than strict law.

As is well known, the decision to prorogue Parliament was quashed by the Supreme Court of the United Kingdom - R (Miller) v The Prime Minister / Cherry and others v Advocate General for Scotland [2019] UKSC 41.

A Bill is now proceeding through Parliament to repeal the Fixed-term Parliaments Act 2011. The Bill also seeks to prevent any future judicial review of a decision to prorogue Parliament. It appears to be passing through Parliament without any serious opposition. See Dissolution and Calling of Parliament Bill - and the Explanatory notes

Members of the Privy Council take an oath and are then styled Right Honourable (Rt. Hon).

Counsellors of State:

Occasionally, the position of the Queen at a Privy Council meeting is taken by  Counsellors of State. This arises in the event of the Queen being ill or absent from the UK.

Counsellors of State are appointed from among the four adults next in succession (provided they have reached the age of 21) - Succession | The Royal Family  They are appointed by Letters Patent.

The current Counsellors of State are The Prince of Wales, The Duke of Cambridge, The Duke of Sussex and The Duke of York.

The law governing who may be appointed a Counsellor of State is set out in the Regency Acts - mainly the Regency Act 1937 section 6.

The fact that the Duke of Sussex (Prince Harry) might still be appointed has attracted adverse comment given that he now resides in the USA, has relinquished royal duties, and claims that it is not safe for him to come to the UK unless Police protection is provided. (The question of protection for any official visits to the UK is an issue over which I have some sympathy with the Prince.).

Given Prince Harry's absence from the UK it should be noted that under section 6(2) he does not have to be appointed as a Counsellor of State.

The possibility of Prince Andrew being appointed has come under question following Virginia Giuffre's legal action against him in New York.  Andrew is not undertaking public duties and he returned all military affiliations and Royal patronages to the Queen - Prince Andrew loses military titles and use of HRH - BBC News

The question of whether Andrew should continue to hold titles such as Duke of York has also been raised -

The removal of such a title appears to require an Act of Parliament. As far as I am aware, only one such Act has ever been enacted and that was to enable the removal of certain peerages after World War 1 - Titles Deprivation Act 1917. The Act was aimed at those who had "borne arms against His Majesty or His Allies, or who have adhered to His Majesty’s enemies."

Alteration of who may be a Counsellor of State will require an Act of Parliament. This has been done before. The Regency Act 1953 section 3 enabled the late Queen Mother to be appointed.

Counsellor of State and dissolution of Parliament.

The Regency Act 1937 section 6 prevents certain matters being delegated to counsellors of State - i.e. no power... to grant any rank, title or dignity of the peerage may be delegated. The words "to dissolve Parliament" used to be included in that list but were removed by the Fixed-term Parliaments Act 2011.

A note:

A recent article published by The Guardian claims that a President would have stopped Johnson illegally proroguing Parliament - Clearly Britain loses more than it gains from the monarchy. Let us be brave and end it | Polly Toynbee | The Guardian.

I'm not commenting in any detail at this time about this article (or similar) but that particular claim is highly questionable. It would depend on what legal powers a President actually held. Abolishing the monarchy would be a major constitutional and legal reform made to sound far too easy by articles such as that by Toynbee.


Royal UK - Counsellors of State

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

Update 26 October 2022:

Prince Andrew and Prince Harry royal counsellor roles challenged - BBC News

Update 22 November 2022:

Lords debates Counsellors of State Bill - UK Parliament

Update 9 December 2022:

Counsellors of State Act 2022 ( - providing for additional Counsellors of State.

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