Counsellors of State

[AC21091968]

Tatler has picked up a Daily Mail column written by Ephraim Hardcastle on the Counsellors of State. Hardcastle also mentioned it's only Charles and William who are highly likely to step in to attend Privy Council meeting, sign documents and receive the credentials of new ambassadors. Harry and Andrew are unlikely to fill these roles, according to Hardcastle.

Why the Queen’s Counsellors of State are dwindling
With Prince Philip, Prince Andrew and the Duke of Sussex all having stepped back from working royal life, the system is growing ever more fragile
https://www.tatler.com/article/quee...gile-prince-philip-prince-andrew-prince-harry

I agree with Durham that the eligibility of Counsellor of State should be reform (unsure when exactly), so that it only includes British citizen who are full-time resident in the UK.

I do not mind non-working royals serving as Counsellor of State, as long as they lived permanently in the UK. For example, Princess Maud, Countess of Southesk was a Counsellor of State between 1942-1945, despite not being a working royal.

 

[Iluvbertie]

The current law requires the Counsellors of State to be domiciled in the UK.

When the law was written all those who would have possibly been CoS would have been British citizens as descendants of the Electress Sophia of Hanover e.g. The King of Norway and the Queen of Denmark are both British citizens although their children aren't. Whether they have ever 'claimed' that citizenship I have no idea but as they were born before 1948 and descend from the Electress Sophia they are British citizens.

The only question now is whether Harry is eligible due to where he lives. Otherwise all those who are eligible are British citizens and domiciled in the UK.

Counsellors of State don't just chair the Privy Council but also receive incoming Ambassadors and High Commissioners. That was the most recent role of the CoS nearly 20 years ago.

If they weren't needed this year then there is no reason to think they will be needed for the foreseeable future as the Queen is clearly in very good health but doesn't go overseas anymore.

 

[TLLK]

Since the current law requires the Counsellors of State to be domiciled in the UK and the Duke of Sussex has indicated that he will not be returning to royal duties, will there be a change in the current line up DoE PoW, DoCam, DoS and DoY? Has anyone read any news on this topic in the past few days?



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

 

[AC21091968]

Since the current law requires the Counsellors of State to be domiciled in the UK and the Duke of Sussex has indicated that he will not be returning to royal duties, will there be a change in the current line up DoE PoW, DoCam, DoS and DoY? Has anyone read any news on this topic in the past few days?



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

Surprisingly, there has not been any news on Counsellors of State, apart from an article in the Royal Central website (written by Charlie Proctor), which does raise some important points nevertheless. He mentioned that the main concern is on The Duke of Sussex and Duke of York.

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

 

[Tatiana Maria]

I am no expert on this topic, but per a British law expert:

Domicile denotes a more permanent association with a country and is generally determined at birth and will remain that country unless you resettle with a firm intention to live in a different country for the rest of your life. [...]

To change domicile, you generally must sever all ties with the UK. So the Revenue might consider you still to be UK-domiciled if you had moved to Spain but returned to Britain to visit friends or family.​

 

[An Ard Ri]

Interesting as I don't think the Duke of Edinburgh is in fit state to act as Regent nor would the duke of York be selected.

That leaves the Prince of Wales and his sons,the Princess Royal would be a natural choice in my mind.

 

[Curryong]

A Counsellor of State requires that the person has a domicile in the UK. Harry does, Frogmore Cottage. He is over 21 and has not stated that he is permanently living in the US and will never return to Britain. In fact he's said the opposite, that had it not been for Covid he would have come back several times. Nor has Harry stated that he wishes to sever all ties with the U.K.

A Regent is the next adult over the age of 21 in the line of succession. Should anything happen to Charles and William in the next ten years that will be Harry.

 

[Iluvbertie]

The Regency Act 1937 and amended 1944 covers these two roles (Counsellors of State and Regent).

1. To be a CoS a person has to be:

a) one of the first four adults in the line of succession - Charles, William, Harry and Andrew

b) be the spouse of the monarch - Philip

c) be domiciled in the UK - all five have homes in the UK - whether Harry actually meets the 'domiciled in the UK' when he now largely lives in the US is debateable and the parliament may need to look into defining that term a bit more

d) be over 21 except for the heir apparent who has to be over 18 (Charles became a CoS at 18 while the other three did so at 21.) Anne stopped being eligible when William turned 21 and Edward when Harry turned 21. There are two other people now ahead of Edward who are eligible (Beatrice and Eugenie) and in November 2024 there will be another person knocking Anne further away (Louise).

2. To be the Regent a person has to be:

a) the next adult in the line of succession - Charles

b) domiciled in the UK - Charles is

c) over 18 with at least a three year age gap between Regent and monarch (that was the major reform in the 1944 act as it was realised that Elizbeth could be Queen at that time but she couldn't be Regent for her father if needed).

The parliament may think about amending the term 'domiciled' to 'permanently resident' which was probably the original intent of the law but terms have slightly changed meaning since 1937. If they did that then Beatrice would be the next CoS.

Anne is so far down the line of succession, with so many adults ahead of her, no matter the wishful thinking she isn't going to go back to a role she hardly ever fulfilled anyway (according to the CC). The Queen tended to appoint the most senior available CoSs and from 1985 Anne was fourth in seniority so the last one appointed while her brothers were appointed first.

 

[TLLK]

Thank you to all who took the time to reply. I enjoyed reading your replies. Curious to see if the issue will be raised soon by the BRF/Government.

 

[Mbruno]

There is a difference between a foreigner becoming Head of State - a lot of people have to die before the King of Norway (who, by the way is a British citizen ... as is the Queen of Denmark and the King of Sweden ... although not their descendants).

The law is quite clear - a CoS MUST be domiciled in the UK - what their citizenship is is irrelevant - they have to live in the UK.

Actually I think the law also says that a CoS must be a "British subject", so I guess citizenship is relevant too.


Curiously there are no citizenship requirements for succession to the Crown though.

 

[Osipi]

Thank you to all who took the time to reply. I enjoyed reading your replies. Curious to see if the issue will be raised soon by the BRF/Government.

I don't think Parliament would even think to address the issue at least until Covid restrictions are a thing of the past and things have returned to a relatively "normal" pace.

 

[Iluvbertie]

Actually I think the law also says that a CoS must be a "British subject", so I guess citizenship is relevant too.


Curiously there are no citizenship requirements for succession to the Crown though.

In 1937 everyone in the line of succession was a British citizen as they were all descended from the Electress Sophia of Hanover. Under the Sophia Naturalisation Act all her descendants were automatically British citizens. That was confirmed in a court decision in the 1950s and then the government limited that right to those born before 1948 - hence the King of Norway for instance is a British citizen although his descendants aren't.

There has never been a citizenship requirement to be in the line of succession. If there was then the vast majority of the over 5000 in the line would be removed e.g. Crown Prince Haakon of Norway and his children, siblings etc would be removed and the same with the Danes and Swedes - the current monarch in the line while their children and grandchildren wouldn't be. All the Germans in the line of succession would also be removed and the line would drop from over 5000 to around 70.

 

[Durham]

The parliament may think about amending the term 'domiciled' to 'permanently resident' which was probably the original intent of the law but terms have slightly changed meaning since 1937. If they did that then Beatrice would be the next CoS.

I agree that permanently resident was the original intent of the legislation. At the time that probably meant anywhere in the British Empire. Today it needs to be just the UK.

Changing the wording of pre-existing legislation is a straightforward process.

Since the question of whether members of royal families are celebrities came up (in another thread) this is a textbook example of why they are clearly not.

 

[Mbruno]

I agree that permanently resident was the original intent of the legislation. At the time that probably meant anywhere in the British Empire. Today it needs to be just the UK.

Changing the wording of pre-existing legislation is a straightforward process.

Since the question of whether members of royal families are celebrities came up (in another thread) this is a textbook example of why they are clearly not.

I think a more urgent need is actually to change the words "British subject" in the Regency Acts to "citizen of the United Kingdom" or something similar.


As most people know, before 1949, "British subjects" included almost any citizen of the old British Empire including the United Kingdom, the Dominions and the colonies (but excluding protectorates). Later, between 1949 and 1983, it became a synonym of "Commonwealth citizens", a status that co-existed with national citizenship in individual Commonwealth countries like Australia, Canada, New Zealand, etc.


Nowadays, however, "British subject" means neither of the above and refers only to a small number of individuals who are considered British nationals under British law, but not UK citizens. I am pretty sure that the contemporary definition is not what was intended by Parliament in 1937 and how the law should be interpreted, so a different wording is overdue.


I hope I got it right.

 

[Durham]

I think a more urgent need is actually to change the words "British subject" in the Regency Acts to "citizen of the United Kingdom" or something similar.


As most people know, before 1949, "British subjects" included almost any citizen of the old British Empire including the United Kingdom, the Dominions and the colonies (but excluding protectorates). Later, between 1949 and 1983, it became a synonym of "Commonwealth citizens", a status that co-existed with national citizenship in individual Commonwealth countries like Australia, Canada, New Zealand, etc.


Nowadays, however, "British subject" means neither of the above and refers only to a small number of individuals who are considered British nationals under British law, but not UK citizens. I am pretty sure that the contemporary definition is not what was intended by Parliament in 1937 and how the law should be interpreted, so a different wording is overdue.


I hope I got it right.

UK citizen & resident in the UK would cover most bases I think.

That's all accurate. Strange to think that the people of Australia & NZ were British Subjects as recently as the 1980's. I'm not sure about Canadians.

 

[adlane75]

Counsellors of State have lived outside of the UK for long periods before. Think about Prince Henry, HRH The Duke of Gloucester. From his Wikipedia page, emphasis added:

"In late 1944 the Duke was unexpectedly appointed Governor-General of Australia[1] after his younger brother, the Duke of Kent, who had been offered the position, died in an aeroplane crash in Scotland in 1942.[41]

...

Gloucester left Australia in March 1947, after two years in the post, due to the need to act as Senior Counsellor of State during a visit by King George VI and Princesses Elizabeth and Margaret to South Africa.[1] As a parting gift, he left his own plane for use by the government and people of Australia."

So...Prince Henry had been appointed a CoS based on his place in the order of succession in 1937, was living abroad from 1945-47 as GG of Australia, but had to return to the UK in 1947 in order to actually discharge his CoS responsibilities. I see no reason to believe HRH The Duke of Sussex couldn't do the same in an emergency and agree with earlier posters that he easily meets the legal standard for UK domicile.

 

[Durham]

Counsellors of State have lived outside of the UK for long periods before. Think about Prince Henry, HRH The Duke of Gloucester. From his Wikipedia page, emphasis added:

"In late 1944 the Duke was unexpectedly appointed Governor-General of Australia[1] after his younger brother, the Duke of Kent, who had been offered the position, died in an aeroplane crash in Scotland in 1942.[41]

...

Gloucester left Australia in March 1947, after two years in the post, due to the need to act as Senior Counsellor of State during a visit by King George VI and Princesses Elizabeth and Margaret to South Africa.[1] As a parting gift, he left his own plane for use by the government and people of Australia."

So...Prince Henry had been appointed a CoS based on his place in the order of succession in 1937, was living abroad from 1945-47 as GG of Australia, but had to return to the UK in 1947 in order to actually discharge his CoS responsibilities. I see no reason to believe HRH The Duke of Sussex couldn't do the same in an emergency and agree with earlier posters that he easily meets the legal standard for UK domicile.

There were specific political reasons why the Australians wanted a member of the RF to serve as GG so Gloucester was the exception rather than the rule when it comes to C's of S.

There were even more pressing political reasons why the South African visit went ahead necessitating Gloucester's return.

As discussed the intent of the original legislation is obvious.

There is of course the whole question of whether we need C's of S at all. And if we do why they need to be (direct heirs aide) relatives of the monarch.

 

[Mbruno]

There were specific political reasons why the Australians wanted a member of the RF to serve as GG so Gloucester was the exception rather than the rule when it comes to C's of S.

Maybe my question and the answer, if any, could be moved to the Queen and Australia forum, but what were the specific political reasons why the Australians at that time wanted a member of the RF as GG?

 

[Somebody]

And an important difference between the Duke of Gloucester and the Duke of Sussex, is that the DoG was in Australia as part of his royal duties; while the DoS decided he is no longer interested in royal duties (at least not with the limitations that places on him and his family).

 

[Tarlita]

A Governor General is the Queen's representative in Australia carrying out duties on behalf of the Queen or King. When a new Ambassador from another country is appointed for instance they present their credentials to The Governor General. As he represents the Head of State. These days the Australian Government appoint the GG., with the blessing of Her Majesty. I can't say what the situation was like in 1947.

 

[Mbruno]

And an important difference between the Duke of Gloucester and the Duke of Sussex, is that the DoG was in Australia as part of his royal duties; while the DoS decided he is no longer interested in royal duties (at least not with the limitations that places on him and his family).

Besides, the office of GG is by nature a temporary appointment which, for the DoG, could be seen as "a tour of duty", not unlike a diplomatic posting or a military tour, albeit with greater responsibilities. I don't think it could be construed as changing his status as "domiciled in the United Kingdom".

 

[Curryong]

Why isn't Prince Andrew's removal as a Counsellor of State being discussed here? After all, Andrew no longer performs Royal duties of any kind, and is barely seen. What's more, he is far more deeply in disgrace than Harry has ever been. Or is it perhaps more enjoyable to dwell on Harry being cut off from any remnants of duty within the BRF?

 

[Durham]

Maybe my question and the answer, if any, could be moved to the Queen and Australia forum, but what were the specific political reasons why the Australians at that time wanted a member of the RF as GG?

The context was war time Australia, its new strategic relationship with the US & its old ties to the "mother country" Britain.

The fall of Singapore & the dreadful losses of HMS Prince of Wales & HMS Repulse (the "British Pearl Harbour") left Australia exposed to Japanese aggression. Most of the Australian Army was in North Africa fighting the Germans & Italians. The RAN was essentially only a small local defence force. Darwin NT was bombed & Japanese subs entered Sydney Harbour. It was the USN that arguably saved Australia from possible defeat by its success at the Battle of the Coral Sea.

So the Australian PM at the time, despite being Labor, was enthusiastic to have a member of the RF as the new vice regal representative in order to emphasize post war Commonwealth unity despite Australia's new found reliance on American hard power.

https://www.jstor.org/stable/27508310

 

[Tarlita]

Very well said Durham. We will never forget the wonderful role the Americans played in saving this country in the Battle of the Coral Sea. It was the turning point in the defeat of the Japanese in the South Pacific.

 

[Durham]

Why isn't Prince Andrew's removal as a Counsellor of State being discussed here? After all, Andrew no longer performs Royal duties of any kind, and is barely seen. What's more, he is far more deeply in disgrace than Harry has ever been. Or is it perhaps more enjoyable to dwell on Harry being cut off from any remnants of duty within the BRF?

I'm absolutely confident that the great majority would prefer Sussex to York as a CofS if there was a choice. That's a given I'm sure.

York is in disgrace. I wouldn't use that word with Sussex. There's a lot of irritation with how he has conducted himself but disgrace is a little harsh. Misguided possibly. Embarrassing perhaps.

To be fair the discussion has been about whether somewhere resident abroad is a suitable candidate to be a CofS. It's a legitimate discussion.

 

[_Heather_]

Why isn't Prince Andrew's removal as a Counsellor of State being discussed here? After all, Andrew no longer performs Royal duties of any kind, and is barely seen. What's more, he is far more deeply in disgrace than Harry has ever been. Or is it perhaps more enjoyable to dwell on Harry being cut off from any remnants of duty within the BRF?

I'm certainly no expert in this field but I would think that it's because there's no question that Prince Andrew is domiciled in the UK whereas there are very real questions about whether or not Prince Harry is domiciled there or in the US. It really isn't a question of personality or performing duties. It appears, at least to me, that there are questions around domicile as outlined in the requirements for CoS.

 

[adlane75]

The history around Australia and S Africa is interesting, for sure, but my point in raising this was simply to note that a Counsellor of State residing abroad (for whatever reason) came home to discharge his duties. Harry could theoretically do the same if the Monarch (for example, his father) made the request at some point in the future.

To Curryong's point, Andrew raises a whole host of other very serious issues that I think neither the Palace nor Parliament want to deal with.

One interesting question is whether or not one could resign as a Counsellor of State or refuse appointment at the outset. I don't believe there's a provision for that in the Regency Acts, though I could be mistaken.

 

[Iluvbertie]

There is a difference between a royal being abroad to represent the monarch, even if it means living there to do that duty, and living abroad out of choice. The Duke of Gloucester was the former while Harry is the latter.

Andrew's position is clear - in the UK until there is even a criminal charge laid he is free to do the same things as any other citizen. The UK has a simple legal principle - innocent until proven guilty in a court of law. No charges have been laid against him and until there are and then he is tried and found guilty he is eligible to serve in any and all capacities as is every other person in the same situation. Even when he stepped down the palace confirmed that he was still eligible to serve as a CoS.

I doubt that the government will bother with doing anything about the CoS situation while the Queen is alive as they won't be needed. She is able to discharge all her duties, as we have seen, via technology. If she becomes incapacitated then Charles will be Regent and he is also capable of discharging all the official, constitutional duties of the monarch. The last time a CoS was even called upon was in 2002 - so even though William and Harry are eligible to serve neither have been called upon since becoming eligible (in 2003 and 2005) according to the CC.

 

[adlane75]

There is a difference between a royal being abroad to represent the monarch, even if it means living there to do that duty, and living abroad out of choice. The Duke of Gloucester was the former while Harry is the latter.

Respectfully, I do not believe this is correct for purposes of determining legal domicile. British jurisprudence has long held that domicile, except where specifically defined by statute, is determined after a consideration of the totality of relevant facts and circumstances. These include but are not limited to place of birth, place of taxation, place of property/leasehold ownership, issuer of passport, place of citizenship, place of employment, place of residence for the individual in question and his/her immediate family (including parents and siblings). It's far more complicated than "he chooses to live abroad." Unless and until the Judicial Committee of the Privy Council rules on the matter in relation to the Regency Acts we will be left to wonder and must assume that Harry's appointment as a CoS stands.

Should Andrew be indicted all bets are off as to his Constitutional status. Parliament would almost certainly become involved.

And I totally agree that this discussion is largely academic as the CoS role is only very rarely relevant. But interesting to think about nonetheless.

 

[tommy100]

Andrew has not be charged or found guilty of a crime. I personally can not stand the man and am glad he is keeping a low profile and seems to have been dropped as a working official royal, but still in law his status has not changed. As IluvBertie points out though - Andrew still meets the requirements of the the CoS without doubt, even if many of us would prefer he doesn't, whereas with Harry there are question marks over whether he fits the requirements.

Not everything is a conspiracy against the Sussexs and pointing to Andrew to isn't always the benchmark, the two situations are different, especially to the Queen I would imagine.

Given that the Queen accepted the credentials of ambassadors virtually from Windsor while they were at BP I wonder if this would effect the need for CoS going forward? As others have said, the Queen has managed to carry out all her constitutional obligations during the pandemic without leaving Windsor or meeting in person.