Counsellors of State Bill [HL]

Committee stage
Wednesday 23rd November 2022 Lords Chamber

Committee

16:00

Clause 1: Additional Counsellors of State

Amendment 1

Moved by

[Viscount Stansgate]

1: Clause 1, page 1, line 7, at end insert—
“(c) on the death of a person named in paragraph (a) or (b), any person named by His Majesty the King by Order in Council.(1A) A statutory instrument containing an Order under subsection (1)(c) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

[Viscount Stansgate (Lab)]

My Lords, I will not unduly take up the time of the Committee in introducing this amendment because my sense is that there are many Members who would not necessarily want to waste scarce parliamentary time unnecessarily.

My amendment is simple and straightforward: it proposes that, once the Bill has reached the statute book, if a Counsellor of State dies then the King may provide a replacement. It does not say the King has to do so; it simply says that he may if he wants to, and proposed new Section (1A) in the amendment provides the mechanism for doing so with the suitable involvement of Parliament. That is it.

The amendment is designed to be helpful. After all, the Bill is before us because the King has suggested that changing the Regency Act 1937 would be helpful to him in the discharge of his duties, and has asked us that two new names be added for life to the list of Counsellors of State. The Committee will know that both Princess Anne and the Earl of Wessex have already served in this role in years gone by.

As the Leader of the House said at Second Reading, it is the custom and practice for Counsellors of State to act in pairs, and he gave several examples in his speech. We saw that with our own eyes at the State Opening of Parliament when the Prince of Wales, as he then was, and Prince William, as he then was, acted as Counsellors of State and made it possible for this Session of Parliament to be opened. I believe that is the only time that Her late Majesty the Queen ever delegated these functions to Counsellors of State because of illness.

The Bill before us will solve the immediate problem and my amendment seeks only to avoid another, and to save some time. If one of the new Counsellors of State proposed in the Bill were to predecease the King, action would have to be taken again. We might even have to have a new Bill. Why? Because, as the Committee well knows, underlying the Bill is the fact that at least two of the existing Counsellors of State would not be publicly acceptable in the role that they would then have. That is why the King has recognised that there is a problem and why he has suggested the solution outlined in the Bill. My amendment is designed merely to help the King in future, and I commend it to the Committee.

[Lord Pannick (CB)]

My Lords, the Delegated Powers and Regulatory Reform Committee reported on the Bill in terms that are regrettably rare nowadays. It said:

“This Bill contains no delegated powers.”


The noble and learned Lord, Lord Judge, has not had the opportunity here to complain about delegated powers, and I am very pleased about that. I should be very sorry to see a delegated power introduced at this stage, particularly a delegated power conferred on His Majesty. In 1867, Walter Bagehot wrote that the monarch has three rights—the right to consult, the right to encourage and the right to warn. The monarch has no right and no power to produce delegated legislation. I can think of no precedent for the Crown having a delegated power—certainly not since 1689.

[The Lord Privy Seal (Lord True) (Con)]

My Lords, the noble Viscount, Lord Stansgate, presses his amendment with good intent. He has expressed his views at every stage of this process with the utmost civility and courtesy. I thank him for that.

I understand that, from his perspective, he seeks to add a certain flexibility or, as he would see it, some insurance to the system. However, as the noble Lord, Lord Pannick, implied in his important intervention, it would add further rigidity, novelty and potentially delay to the procedure. The steps in the amendment are not required and they are unwelcome. The amendment goes considerably further than the limited modification proposed in the Bill. As I submitted to your Lordships at Second Reading, the nature of this Bill flows from a message from His Majesty. I think it was the feeling of the House at Second Reading that the Bill is appropriate and proportionate to the circumstances in which we find ourselves.

The noble Viscount is proposing a wider change to the underlying architecture of the legislation. As indicated in the intervention by the noble Lord, Lord Pannick, it would grant the sovereign a new authority—one which was not referenced in the King’s message—but does not indicate on what basis any such decision would be made. It would also introduce a novel parliamentary process into these matters. In this respect, it is a departure from the current framework and the proposition before us, and the Government do not believe that it is necessary or desirable.

I repeat that the Government believe that the approach suggested in the Bill is a reasonable and practical solution in the current context. The Bill as currently drafted will create a sufficient pool of counsellors who will hold this role for their lifetimes. As the noble Viscount will understand, with the effluxion of time, the order of succession will evolve and so will the situation once this Bill becomes an Act.

Although I acknowledge the spirit in which this amendment is tabled, the history of the Regency Acts demonstrates that it is a challenging task for Parliament or any legislator to predict the future. I suggest that we do not seek to do so here but seek rather to respond to the task at hand and proceed in the light of the message that the sovereign has sent us. It indicates his wishes and, I feel, the wishes of the House, that this practical, limited and moderate approach should be taken at the present time. I urge the noble Viscount to withdraw his amendment.

[Viscount Stansgate (Lab)]

My Lords, I thank the Minister for his reply. I would say only that it has almost been worth it to listen to the noble Lord, Lord Pannick. I of course beg leave to withdraw my amendment. I hope that this Bill will succeed in its intention. Time will tell how events will turn out in the future.

Amendment 1 withdrawn.

Amendment 2

Moved by

[Lord Berkeley]

2: Clause 1, page 1, line 7, at end insert—
“and as if they excluded—(c) His Royal Highness the Duke of Sussex,(d) His Royal Highness the Duke of York, and(e) any other person who in the opinion of the Lord Chancellor has not in the immediately preceding 2 years undertaken Royal duties on a regular basis.”

[Lord Berkeley (Lab)]

My Lords, in speaking briefly to Amendment 2 I can also say that I will not be moving Amendment 3 because, in his reply at Second Reading, the Minister gave an excellent and wide response. Amendment 2 is designed to formalise the Counsellors of State after the accession of King Charles, adding the Earl of Wessex and the Princess Royal to the list.

It is constitutionally very important that when the monarch is not there, this will allow the Government to continue, because we have a constitutional monarchy. That means that some of the counsellors—all of them, probably—come from the family. It is a large family and I know that King Charles has previously said that he thought it should be smaller. I do not think he has said that since he inherited the Throne, but there we are. The interesting thing to me is, what is the concept of a working royal? The counsellors obviously support the monarch in his constitutional role, so, as I think the Lord Privy Seal said at Second Reading, they clearly should be both in the UK and working, if for no other reason than that they know what is going on.

Parliamentary approval of counsellors is necessary, too, which is what we are talking about today, because there has been a history—if not recently—of monarchs going a little mad or otherwise breaking the law, as Parliament saw it. It is right that we prepare ourselves for the future. While it is also right that Parliament agree to the monarch’s proposal to add two Counsellors of State, I do not see why we cannot at the same time remove those who are no longer apparently thought suitable.

The Lord Privy Seal said at Second Reading that

“the legislation already contains provisions whereby Counsellors of State are excepted from duties if they are overseas”

and that

“in practice, working members of the Royal Family will be called on”.—[Official Report, 21/11/22; col. 1194.]

My Amendment 2 just tries to clarify that. Why not name the people concerned, rather than having to interpret what a working royal is?

I do not know whether this is from embarrassment or fear of a media frenzy. I hope it is not, but it is an important constitutional issue. It has nothing to do with who has what title or what clothes they wear for television appearances, or anything else like that. If the members of the family are not working royals, there is a fear, as the noble Lord, Lord Balfe, mentioned in his excellent speech on Monday, that the Duke of Sussex would jet in and claim that he was working because he thought that would be a good idea. A definition would be a good thing, and I see no reason why they should not be named in the Bill.

I am not going to press this amendment because I support the Bill, on the whole. However, a little clarification from the Minister, if he is able, would be very helpful. I beg to move.

[Lord Pannick (CB)]

My Lords, it seems unnecessary to exclude the Duke of Sussex and the Duke of York who, for reasons we all know and understand, are not going to be performing royal duties in the immediate future in any event. As to the drafting of the noble Lord, Lord Berkeley, in proposed new paragraph (e), that there should be excluded

“any other person who in the opinion of the Lord Chancellor has not in the … preceding 2 years undertaken Royal duties on a regular basis”,

this leaves rather open for analysis what “regular” means. Does it mean once a month, once a week or once a year? What if they are ill for a period of time? The idea that the Lord Chancellor should determine this question without any criteria seems rather unsatisfactory. Mr Dominic Raab has more than enough to do at the moment.

[Lord Balfe (Con)]

I will make one small point. We will have five Counsellors of State, two of whom are not going to be used, namely the Dukes of Sussex and of York. That means that, since you have to have two Counsellors of State acting if the monarch is away, if either the Princess Royal or the Duke of Wessex were unavailable, we would have only Princess Beatrice left. We do not have anyone else on the reserves bench, so to speak.

I doubt whether we have heard anything, but noble Lords will recall that I suggested that the Princess of Wales should added to the list. I still think that would be a sensible idea because she will of course become a Counsellor of State when her husband succeeds to the Crown. Again, I will not support any votes, but the palace should look at this because you only need one person to be ill, and you have Princess Beatrice as a Counsellor of State. Although she is probably acceptable, she is virtually unknown.

16:15

[Lord Foulkes of Cumnock (Lab Co-op)]

I apologise for not being able to be here on Monday for Second Reading; I was in Vilnius, the capital of Lithuania, chairing a conference on press freedom organised by the Parliamentary Assembly of the Council of Europe.

However, I will make one point. At an earlier stage, I was slightly concerned that there seemed to be a sharp intake of breath in some quarters in relation to whether we ought to discuss this. That concerned me. We need to reaffirm the sovereignty of this Parliament. This is a constitutional monarchy: Parliament is responsible for considering all these kinds of Bills, and it is right that we do so. It is right that my noble friends Lord Stansgate and Lord Berkeley—I note that both are hereditary, which is interesting, but that is another story—should be able to move amendments, and that we have a debate on this.

This is especially so when the whole role, function and composition of this second Chamber is being reviewed. We ought to recognise that a number of constitutional questions are being considered at the moment, and Parliament should have oversight of any such Bills in a constitutional monarchy. It is right that we hear from my noble friends Lord Stansgate and Lord Berkeley, the noble Lord, Lord Pannick, and anyone else who wants to comment on this.

[Lord Cormack (Con)]

My Lords, it is of course right, and what the noble Lord, Lord Foulkes, said is entirely justified: Parliament has a role. But, in this particular case, we can rely upon the good judgment and discretion of the King, and we can recognise that he is a father and a brother as well as a king.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will make a more lawyerly point. I heard the wise intervention of the noble Lord, Lord Pannick, on what is regular and the powers of the Lord Chancellor. I will not comment on either of those points. But I heard the noble Lord say, in moving the amendment, that his wish was to provide some clarity. I respectfully suggest that its wording actually does the precise opposite, because he has used the verb “excluded”—although, when he moved it, he used the word “removed”. In the context of this legislation, verbs are important. A Counsellor of State can be excepted if they are overseas, for example, which means that they cannot act but they do not lose their place in the pecking order. If they are disqualified, they lose their place in the pecking order, and the next person in line takes that place. It is not immediately clear to me whether “excluded” is “excepted” or “disqualified”. With the greatest respect, I suggest that it is this amendment that ought to be excluded.

[Lord Sentamu (CB)]

My Lords, I also apologise for not being here on Monday; I had to handle some serious matters in Berwick. Yes, the constitutional monarch has consulted, and this House considered this at Second Reading and agreed the terms as in the legislation. So there is no question of the supremacy of Parliament not being recognised. The suggestion of the noble Lord, Lord Berkeley, is almost like rubbing it in—it is just one of those words we would not want to use. We should restrict the Bill to what was asked of us. This was considered, and therefore the wording is there.

Another thing is that we can never predict anyone’s future. I could be ill tomorrow, or I could be dead, and that would be the end of me. Anticipating what may or may not happen in legislation is always pretty difficult, so leave it well alone.

[Lord Newby (LD)]

My Lords, I have considerable sympathy with the thoughts behind this amendment, because the debate has shown that there is a certain amount of confusion about which members of the body of Counsellors of State will undertake royal duties, do undertake royal duties or might be asked to do so. In addition to the Duke of Sussex and the Duke of York, Princess Beatrice—although I might be wrong about this—is also not a working royal. That means that three members of this extraordinarily small body will never be asked to perform the function, which just seems strange.

An amendment of this sort would enable matters to be clarified. There are a number of deficiencies in its drafting, some of which were raised by the noble Lord, Lord Pannick. It also raises in my mind the question of what would happen if we were to exclude two or three Counsellors of State. Who would replace them? Would they be replaced and, if so, on what basis? There is ambiguity. In an ideal world, this ambiguity would be dealt with by consideration of these matters.

For example, it is up to the King to decide which members of his family he considers working members of it. He decides who acts as a working member of the Royal Family, so I think we could get round all that. However, as we debated on Monday, once you start down this route, it takes quite a lot of time and effort to deal satisfactorily with all the wrinkles. Given everything else that lies before us, I am not sure it is a priority. However, one idea is that the work could be done on this to the extent that, at some point in the future, there may need to be another Counsellors of State Bill to include an additional person. It would be a good thing if this could be cleared up at the same time.

[Baroness Smith of Basildon (Lab)]

My Lords, listening to noble Lords talking about the definition of working royals, I sometimes think we ought to look at the definition of working Peers, over which similar anomalies arise. Monday’s significant debate made it clear that very few of us have considered this issue before. It is not something that we deal with every day. We debated the Bill at length but it is wrong to chastise those who want further debate. I would have thought, however, that His Royal Highness, the palace authorities and Parliament would have given considerable thought to whether the Bill would deal with the problems that may occur if there were not adequate members to fulfil the responsibilities of Counsellors of State.

I appreciate that my noble friend is not pressing his amendment to a vote; I think the House is quite anxious to see this legislation go to the other place and get on to the statute book. We quite like the idea of Bills that start in your Lordships’ House and then go to the other place, rather than the other way round. Therefore, we should send the Bill to the House of Commons, as it is now, unamended, as the noble Lords who proposed these amendments have suggested.

[Lord True (Con)]

My Lords, I thank all those who have spoken, particularly the noble Lord, Lord Berkeley, for putting this matter before us. Perhaps it would not be inappropriate at the start to thank the Official Opposition and the noble Lord, Lord, Lord Newby, for their support on behalf of their parties, which I am sure will be noted and much appreciated.

I say to the noble Lord, Lord Foulkes, who always likes to bowl a different ball, as it were, that if he had been here at Second Reading he would have known that no one has ever sought to say that this matter should not be discussed. In fact, His Majesty’s Government have presented a Bill before Parliament for the single purpose of enabling Parliament to consider the matter. His Majesty the King himself has invited us to discuss the matter, so it is 180 degrees away from the position that the noble Lord sought to represent. I cannot go into the point about the future of your Lordships’ House, but it was not my party that recently put that matter before the newspapers.

We believe that this amendment is a disproportionate step. What the Government are doing, as referenced in the King’s message, is a practical and limited modification that allows royal functions to be delegated to a wider pool of Counsellors of State. It is a practical and proportionate response. The Bill follows established precedents. There is no precedent for a measure to exclude individuals from acting as Counsellors of State. Any further changes to the pool of Counsellors of State by, for example, removing certain individuals, would require more fundamental amendment to the Regency Act 1937. These arrangements have been in place for 85 years and have, in my submission, served us well.

The Bill follows the precedent, as I said at Second Reading, of 1953, when Her Majesty Queen Elizabeth the Queen Mother was added, and adds the Princess Royal and the Earl of Wessex to the pool of Counsellors of State. I must remind my noble friend Lord Balfe, who suggested that this was a very narrow pool, that he did not mention the fact that Her Majesty the Queen Consort and His Royal Highness the Prince of Wales are Counsellors of State, so the pool is slightly wider than he suggested. The amendment in the name of the noble Lord, Lord Berkeley, to exclude individuals would be a substantial change that departs both from precedent and the approach set out in the King’s message to both Houses. With respect to the noble Lord, Lord Berkeley, the approach set out in His Majesty’s message is appropriate and effective. I follow the noble Baroness opposite in saying that your Lordships should respect it, having considered it and reflected on it as we have.

I intend no disservice to my right honourable friend the Deputy Prime Minister, for whom I have the very highest regard, but I have noted criticisms in your Lordships’ House of the fact that the office of Lord Chancellor is now held by a Member of the House of Commons. I have heard that often at this Dispatch Box. The amendment of the noble Lord, Lord Berkeley, to allow the Lord Chancellor to exclude those individuals who have not undertaken royal duties in the preceding two years is, in our submission, an unnecessary addition, introducing complexity into the scheme where it is not required.

The amendment proposes a significant change to the underlying Act and shifts the decision-making to a member of the Government. It would now be for the Lord Chancellor to make a judgment on what counts—and what does not—as regularly undertaking royal duties. The word “regular” is subjective, and that is a lot to load on one individual. It might be asked “What is regular?” I remind the House that there are working members of the Royal Family, some very senior, who undertake public duties but have never been Counsellors of State and are not intended to be. As was wisely put to us by the noble Lord, Lord Pannick, and my noble friend Lord Wolfson, this approach would add complexity where previously there was none and impose an unnecessary duty on the Lord Chancellor.

The amendment must be regarded as practically unnecessary if the Bill is to pass. The Regency Act already includes provisions—the noble Lord, Lord Berkeley, was kind enough to allude to our debate at Second Reading—whereby Counsellors of State are excepted from duties if they are overseas. I repeat what I set out at Second Reading: the Royal Household has confirmed that, in practice, working members of the Royal Family will be called on to act as Counsellors of State and diaries will be arranged to make this practicable. I think it is well known and understood who those persons are. The Bill as it is drafted and the flexible constitutional arrangements in place ensure that the effect of the amendment is already achieved. In my submission, and I believe this is the view of most noble Lords who spoke at Second Reading and today, that is sufficient and nothing more is required.

The underlying structure provided by the legislation has proved effective and it would be a mistake to seek to modify its effect in response to short-term contexts which are, of course, subject to evolution and change. To conclude, for the reasons I have set out and those set out by other noble Lords who have spoken helpfully in this debate, I hope I can convince the noble Lord, Lord Berkeley, that his amendment is redundant and disproportionate. In fact, it would add complexity and subjectivity to the system and is not suitable to the intent of this practical and precise Bill. I urge him to withdraw his amendment.

[Lord Berkeley (Lab)]

I am grateful to so many noble Lords who have contributed to this debate. Clearly, the amendment as it stands had many defects in it and I apologise for that. I spent a lot of time talking to people about what the right solution was, but I think the key thing is we have had a good debate. Many different noble Lords have expressed their views, and from my point of view I think the Bill is fine for the moment—of course I support it. I think it is an issue which we will have to look at in not the short term but in the longer term, as it may be useful to come back and review it again in a more structured way. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3 not moved.

Clause 1 agreed.

Clause 2 agreed.

House resumed.

Bill reported without amendment.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, this may be a convenient point to remind noble Lords that the deadline for any Report amendments will be in 30 minutes’ time—that is at 5.02 pm. Amendments can be tabled at the Public Bill Office in the usual way.