Counsellors of State Bill [HL]

Lord True Excerpts

2nd reading
Monday 21st November 2022 Lords Chamber

Moved by

[Lord True]

That the Bill be now read a second time.

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

My Lords, I know that all noble Lords will be aware of His Majesty the King’s message to both Houses of Parliament and I am confident that there is a strong desire across your Lordships’ House to support His Majesty to undertake his ceremonial and constitutional duties at home and overseas.

As your Lordships will be aware, the sovereign performs a significant number of functions which form a key part of the machinery of government of the United Kingdom, including indicating assent to legislation. The sovereign also performs a similar role in relation to the Crown dependencies and the British Overseas Territories. It is essential that these functions, which are a core part of our constitutional arrangements, can continue to be performed if the sovereign is unable to perform them personally by reason of absence or otherwise. This Bill will add that necessary resilience by modifying the Regency Acts 1937 to 1953.

Therefore, I am sure that this Bill will commend itself to your Lordships as being an effective and simple provision supporting His Majesty’s Government to continue as required, and that noble Lords will share my belief that it is our honour and duty to be of service to His Majesty in this matter, which will enable him to give the fullest service to the nation.

Section 6 of the Regency Acts 1937 to 1953 provides for Counsellors of State, to whom royal functions can be delegated where the sovereign is absent from the UK or is ill. It has always been important to ensure that government business can continue in these circumstances. As Section 6(1) of the 1937 Act explains, this is

“to prevent delay or difficulty in the despatch of public business”.

I will briefly set out the functioning of the Acts specifically with regard to Counsellors of State. The delegation of royal functions is made by the sovereign through Letters Patent for the period of the illness or absence. The sovereign may revoke or vary the delegation by Letters Patent, which set out the statutory limitations of the delegation. The sovereign will also usually specify in them which functions are and are not delegated. In practice, the Letters Patent create a pool of all the Counsellors of State to whom functions can be delegated. Counsellors of State exercise royal functions jointly or by such number of them as may be specified in the Letters Patent.

Generally, Counsellors of State have acted in pairs. Those who are absent from the United Kingdom during the period of delegation may be excepted, as per Section 6(2) of the 1937 Act. The Counsellors of State are currently the spouse of the sovereign, if applicable, and the four persons who are next in the line of succession to the Crown, excluding those who are disqualified under the Act. Counsellors of State were routinely appointed when Her Majesty Queen Elizabeth travelled abroad. In fact, they have been appointed over 30 times in the last few decades, and of course, as we recall, during the State Opening of Parliament earlier this year.

The functions Counsellors of State undertake can include, for example, indicating assent to legislation, formally approving appointments, and providing authority for the affixing of the Great Seal to documents, such as royal proclamations. The role can also include convening Privy Council meetings where necessary. The Bill represents a practical solution and safeguard to ensure that the machinery of government can continue. The Royal Household has confirmed that, in practice, working members—I repeat that—of the Royal Family will be called upon to act as Counsellors of State, and that diaries will be arranged to make this practicable.

The Bill proposes a very precise and limited modification to the provisions in the Regency Acts in respect of Counsellors of State. In line with the King’s message to both Houses of Parliament, the Bill will add His Royal Highness the Earl of Wessex and Her Royal Highness the Princess Royal to the list of Counsellors of State. They will undertake those roles for their lifetimes. By doing so, the Bill will provide greater resilience in our constitutional arrangements by widening the pool of Counsellors of State. As His Majesty undertakes engagements abroad, this is an expedient step, helping His Majesty’s Government plan for contingencies. Furthermore, Her Royal Highness the Princess Royal and His Royal Highness the Earl of Wessex have extensive experience—over 50 years between them, I believe—of supporting the sovereign with their official duties, having previously served as Counsellors of State during the reign of Her late Majesty.

The Bill follows the precedent set by Her Majesty Queen Elizabeth when, shortly after her accession in 1953, she asked Parliament to consider legislating for Her Majesty Queen Elizabeth the Queen Mother to be a Counsellor of State. The Queen Mother had previously acted as a Counsellor of State but had ceased to be one following the death of her husband King George VI in 1952. Seven decades ago, Parliament passed the Regency Act 1953 to deliver on Her late Majesty’s wishes. Today, as we bring the Bill before this House, reflecting His Majesty’s wishes, we are guided by precedent in the substantive approach and procedure.

I trust, therefore, that your Lordships will agree with me that this is a prudent and expedient modification to the long-tested provisions for Counsellors of State that will offer the necessary resilience to our constitutional arrangements and be of great support to His Majesty. I am confident that the Bill will command considerable support, and I know that this House and this Parliament will wish to be of assistance and support to our sovereign as he undertakes his vital duties. I beg to move.

--- Later in debate ---

[Lord True (Con)]

My Lords, I thank all noble Lords who have spoken in this short debate. There have been some very interesting contributions, and some with ambitions to range quite widely, even to include inclement weather in Scotland. We should recall that this legislation follows a message from His Majesty the King to Parliament. It reflects the wish of His Majesty the King. Most who have spoken in this debate support the legislation and wish to enable that to be enacted. I am very grateful for the broad support.

I accept, of course, that the noble Baroness, Lady Jones of Moulsecoomb, is entitled to her view. I am sure that, as and when the Green Party forms a Government, it will not only abolish the monarchy but join with the view of Sir Keir Starmer on abolishing your Lordships’ House. However, we are a long way away from a Green Government, and it was heartening to hear from all other noble Lords who spoke the genuine affection, admiration and high regard that your Lordships’ House holds for His Majesty. I am delighted to reiterate, on behalf of all noble Lords, our support and gratitude.

It was heartening also to hear your Lordships’ warm support for the broad Royal Family, as expressed by my noble friend Lord Cormack, and the great admiration expressed—rightly, in my judgment—including at the end by the noble Baroness, Lady Smith, for Her Royal Highness the Princess Royal and the Earl of Wessex, who have been and are so outstanding in their continuing public duties.

I was asked about the order of the names in the Bill. I do not think that there is anything sinister in it. I note that it is in one order in the Long Title, in a different order in the preamble and in another order in Clause 1. I believe the drafters of the Bill have sought to reflect equality.

The noble Lord, Lord Janvrin, who spoke from a position of great and unique authority, told us about the necessity of the legislation, how it touches mostly the routine nature of everyday government, and the case for fast-tracking. In some of the things he said he expressed a very strong view about how the nature of government should ideally be conducted, which the noble Lord, Lord Pannick, courteously acknowledged. There is always room for innovation, of course, but I was very struck by what the noble Lord, Lord Janvrin, said on these matters.

The noble Viscount, Lord Stansgate, who has taken a great interest, said that this was a necessary Bill and should pass. I agree.

My noble friend Lord Balfe asked what would happen if somebody turned up and sought to exercise the role. With respect, as the noble Baroness opposite said, this seems a little far-fetched. Counsellors of State have been undertaking royal functions for 85 years under this scheme with no such problems arising. As the noble Baroness, Lady Smith, wisely reminded us, it is ultimately for the sovereign to determine who undertakes these functions.

My noble friend also asked why not others. The approach proposed is a limited modification to the Regency Acts, whereby two individuals are added to the list of Counsellors of State. Although it would have been possible to add others, this proposal provides the right balance between giving additional flexibility and maintaining the underlying structure of the original Act.

The noble Lord, Lord Berkeley, who has intimated his intention potentially to raise these matters in Committee, proposed that individuals be removed from the pool of Counsellors of State. He will have noted—indeed, I am grateful that he acknowledged this—that, as I set out, the Royal Household has confirmed that, in practice, working members of the Royal Family will be called on to act as Counsellors of State. As he acknowledged, the legislation already contains provisions whereby Counsellors of State are excepted from duties if they are overseas. I hope that addresses his concern.

The noble Lord also suggested in the amendments that he has put before your Lordships’ House that perhaps some other person might decide on people’s suitability to be Counsellors of State. He might reflect that this would introduce complexity into the scheme where it is not required.

The noble Lord also raised transparency. I am a strong supporter of the principle of transparency. I point out that the list of Counsellors of State is already available on the royal website, so there is no need for a legislative requirement to do this. In addition, the legislation is already clear as to who the Counsellors of State are. Moreover, when Counsellors of State are appointed the current practice is that Letters Patent are made public. It is therefore clear. I hope I have addressed some of the noble Lord’s concerns and that he might not feel it necessary to return to these in Committee.

The noble Lord, Lord Pannick, whose reading slightly differs from my reading in my library, raised a number of significant and interesting points. I think I have dealt with the issue of bad weather. The weather would have to be truly exceptional to interrupt the conduct of the Government’s affairs.

On videoconferencing, this idea is always before us and was in the age of Covid, but I believe the noble Lord, Lord Janvrin, addressed that point.

The noble Lord also asked about the scope of powers of Counsellors of State. In recent years, going back to 2010, the practice has been that Privy Council meetings, which can be one of the roles of Counsellors of State, have been arranged around visits by the sovereign, but looking at the past practice of Privy Council meetings—for example, in 1987, 1991 and 1994—Counsellors of State undertook the following tasks; this is also in response to the noble Lord, Lord Newby. They have approved Privy Counsellor appointments, amended charters, agreed Channel Island orders, agreed university orders, approved statutory instruments and, an unusual task which falls to the Privy Council, closed burial grounds. In 1999 the then Prince of Wales and the Princess Royal convened a Privy Council meeting required to approve a Prorogation of Parliament at the request of Mr Blair while the monarch was unavailable overseas. Counsellors of State can also undertake non-Privy Council business such as, as the noble Lord, Lord Janvrin, reminded us, receiving the credentials of ambassadors. The powers of Counsellors of State have been used, but it is not the norm. Wherever possible, diaries are organised such that Privy Council meetings revolve around the diary of the monarch.

I noted the noble Lord’s suggestion and indeed that of the noble Viscount, Lord Stansgate, for a wider review. At this time, the Government are not persuaded of the necessity of that, and I rather agree with the noble Lord, Lord Newby, that there are perhaps more pressing issues at this time. While some Members of the House may feel this is an opportunity to make wider changes, in our submission it is not the appropriate place to undertake wider revisions. What we have before us is a small and focused Bill. The proposals in the Bill are modifications of the provisions that will ensure that there is a greater pool of Counsellors of State when needed, reducing any potential risk of delay in public business. Any further reforms of the nature suggested by some who spoke would require consideration of any wider constitutional significance and implications. We are here responding to a specific context in response to His Majesty’s message and seeking practical steps to add further resilience and support to His Majesty’s capacity to undertake his official role. That is where, in my submission, we should rest at present, and I rather agree, therefore, with the points made by the noble Lord, Lord Newby, as I have said.

As many of your Lordships noted, there are good practical reasons for the provisions proposed, and I welcome the support shown for the Bill today. Your Lordships will be aware that Committee is on Wednesday. Therefore, I am ready to discuss any questions or issues that any noble Lord might wish to raise before then. I remind the House, as so many who have spoken have done—and I reiterate my gratitude for the welcome given to the legislation—that the purpose of the Bill is very simple and straightforward, and I am confident that this loyal House of Lords will respond to His Majesty’s message and support this legislation, and I submit that this legislation commends itself to the House.

Bill read a second time.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, as my noble friend the Deputy Chief Whip informed the House last week, the deadline for amendments for the Marshalled List for Committee on this Bill is in 30 minutes’ time. Therefore, amendments should be in by 5.19 pm.

[Lord True (Con)]

Obviously, time has been allowed for the laying of amendments. I am grateful for that reminder to the House.

Bill committed to a Committee of the Whole House.

Counsellors of State Bill [HL]

Lord True Excerpts

Committee stage
Wednesday 23rd November 2022 Lords Chamber

[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.

--- Later in debate ---

[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.

Counsellors of State Bill [HL]

Lord True Excerpts

3rd reading
Wednesday 23rd November 2022 Lords Chamber

Moved by

[Lord True]

That the Bill do now pass.

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

I thank all noble Lords who have contributed to the debate. I again place on record, as I did at an earlier stage, my gratitude to His Majesty’s Official Opposition and the Liberal Democrats for their support in expediting this measure. We have heard important arguments put forward in the House. I believe that we have acquitted our responsibility in responding to the message from His Majesty. I thank all those who have been involved in putting this measure together at such short notice.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Lord Privy Seal for his comments. This Bill has been a learning curve for many in your Lordships’ House. In conducting our debate, we have reached a sensible conclusion which concurs with the wishes of His Majesty the King. This Bill is a proportionate, moderate measure, which has the support of this House. Other issues may arise in due course that the House will wish to look at. This is not something that happens every day. I thank the noble Lord for his courtesy in engaging with the Opposition at all times about the detail of the Bill. We greatly appreciate it. We also thank those officials who have worked on bringing this Bill to the House.