Ever since the state opening earlier this year, the topic of counsellors of state has been prominent in my mind, and in the minds of many others. Just as Elizabeth II’s health was failing and the necessity of this constitutional device was more pressing, so the actual availability of counsellors was at its lowest since the device was invented. Many in academic and political circles were discussing possible updates to the legislation. I even had a go at drafting a new bill myself. As the original 1937 Act had already been amended twice, and as I wanted to avoid a confusing change of pronouns mid-paragraph, I did consider neatening things up by repealing it wholesale and typing out most of its provisions again, but that version turned out to be too long-winded for the amount of actual change I needed to effect. By early September it was nearly in a presentable state, but then Her Majesty’s death seemed to render the matter moot for a while.

Today the Lord Chamberlain of the Household announced that King Charles wished his siblings Anne and Edward to be re-appointed as counsellors. This will require new legislation, which we can expect to be brought forward swiftly. I hope it’s not too late to send in my own.

A

BILL

TO

Amend the provisions for a regency in the event of the incapacity of the sovereignty due to illness or minority, and for the performance of certain of the royal functions in the name and on behalf of the Sovereign in certain other events.

BE IT ENACTED by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1. The Regency Act 1937 is amended: –

1. In subsection (1) of section two, replace “Lord Chancellor” with “Prime Minister” and “Chief Justice of England, and the Master of the Rolls” with “Speaker, and the President of the Supreme Court”.
2. In subsection (2) of section two, replace “His Majesty’s Dominions and to the Government of India” with “His Majesty’s Realms and to the Commonwealth Secretariat”.
3. In subsection (1) of section five, replace “mother, if she is living” with “living parent”.
4. In subsection (1) of section six, replace “by telegraph” with “electronically”.
5. For all of subsection (2) of section six, substitute “The counsellors of state shall be any five persons of His Majesty’s choosing, appointed by Statutory Instrument under this Act and subject to the affirmative resolution procedure.”.

2. The Regency Acts of 1943 and 1953 are repealed.

3. This Act may be cited as the Regency Act 2022, or it and the Regency Act 1937 may be cited as one.

4. This Act takes effect upon the approval by both Houses of Parliament of the first statutory instrument passed under section one.

EXPLANATORY NOTES

This bill updates the Regency Act 1937, as well as repealing the 1943 and 1953 Acts which had amended it already.

Section 1 (1) changes the list of persons empowered to determine the monarch’s absence or incapacity. It adds offices whose jurisdiction encompasses the whole United Kingdom (Prime Minister, Lord Speaker, President of the Supreme Court) and removes those whose roles are only applicable to parts of it (Lord Chancellor, Lord Chief Justice, Master of the Rolls).

Section 1 (2) removes reference to defunct bodies and adds reference to current ones.

Section 1 (3) updates the list of potential counsellors of state. The original text specified the consort and the first four adults in line to the throne. In early 2017 this would have meant Princes Philip, Charles, William, Harry and Andrew. By 2022 the former had died and the latter two had withdrawn from royal duties, leaving only two counsellors still active: the minimum for this provision to be used. The accession of King Charles III dulls the urgency of the situation by adding Queen Camilla and Princess Beatrice to the list (as consort and fourth adult in line respectively) but the current arrangements are still less than ideal. The new text allows for counsellors to be added or removed as necessary without the burden of new primary legislation each time.

Section 2 repeals intermediate legislation whose provisions are now redundant. The 1943 Act lowered the age of eligibility for the heir-apparent to be a counsellor, but that is negated by this Bill. The clause regarding counsellors’ absence is also covered by the revised wording. The 1953 Act anticipated minority reigns by persons who have since reached the age of majority and gave powers to persons who are now deceased. The sole active provision of the latter Act is to reduce the age at which the heir-apparent could be regent from twenty-one to eighteen years, but as the present heir-apparent is over the higher age that point is likewise moot.

Section 4 delays implementation of the legislation until His Majesty’s appointments have been approved, to avoid an interim situation in which there would be no counsellors of state at all.