Joint Committee on Draft Civil Contingencies Bill First Report

Appendix 6: Note by Professor Clive Walker, Specialist Adviser to the Committee - The Resilience of the Crown

The resilience of the Crown

1.  The resilience of the office of the Crown is vital to the operation of Part 2 of the Civil Contingencies Bill. The Crown is relied upon to deal with

  • the proclamations of emergencies (cl.18)
  • the making of Orders in Council (clause 20)
  • the requiring of the meeting of Parliament (clause 24)
  • and the appointment of Secretaries of State and Ministers of the Crown (passim)

2.  It follows that it is important to ensure that in any dire emergency, the existence of the Crown in person is assured and that the exercise of Crown powers remains feasible.

3.  As regards the existence of the Crown, succession is settled by the Bill of Rights 1689, as amended by the Act of Settlement 1700 and the His Majesty's Declaration of Abdication Act 1936. The key condition is of course an hereditary relationship, though the foregoing legislation also imposes the conditions that a Roman Catholic is specifically excluded from succession to the throne; nor may the Sovereign marry a Roman Catholic. The Sovereign must, in addition, be in communion with the Church of England and must swear to preserve the established Church of England and the established Church of Scotland. The Sovereign must also promise to uphold the Protestant succession. According to the official royal website (, there are 37 people in line of succession, but one could presumably go further if necessary in line with the rules so specified. When a sovereign dies, or abdicates, a successor is immediately decided according to these rules - there is no interregnum. The coronation of a new sovereign is an important ceremony which confirms to the public the succession (including the promises required).

4.  Given the number of available office holders and the ease of transition, the Crown would appear to enjoy a high degree of resilience. The only circumstance which could give rise to difficulty is where a minor (under 18 years) or succeeds to the Crown (section 1) or where the office holder is incapacitated by infirmity of mind or body or (under section 2) is 'for some definite cause not available' (being held captive by the enemies of the Crown might be an example). These events trigger the Regency Act 1937. A declaration as to incapacity can be made by any three or more of the Sovereign's spouse, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice and the Master of the Rolls. No doubt, plans have been considered for such an eventuality from time to time, and the procedure does again secure a fair degree of resilience.

5.  In addition under the Regency Act 1937, section 6 (as amended in 1943 and 1953), the sovereign may appoint Councillors of State when suffering from a lesser degree of incapacity or intends to be absent from the realm. The Councillors of State can exercise specified royal functions (except dissolving Parliament or granting titles):

Power to delegate royal functions to Counsellors of State

1. In the event of illness not amounting to such infirmity of mind or body as is mentioned in section two of this Act, or of absence or intended absence from the United Kingdom, the Sovereign may, in order to prevent delay or difficulty in the despatch of public business, by Letters Patent under the Great Seal, delegate, for the period of that illness or absence, to Counsellors of State such of the royal functions as may be specified in the Letters Patent, and may in like manner revoke or vary any such delegation:

Provided that no power to dissolve Parliament otherwise than on the express instructions of the Sovereign (which may be conveyed by telegraph), or to grant any rank, title or dignity of the peerage may be delegated.

2. Subject as hereinafter provided, the Counsellors of State shall be the wife or husband of the Sovereign (if the Sovereign is married), and the four persons who, excluding any persons disqualified under this section, are next in the line of succession to the Crown, or if the number of such persons next in the line of succession is less than four, then all such persons:

Provided that, if it appears to the Sovereign that any person who, in accordance with the foregoing provisions of this subsection, would be required to be included among the Counsellors of State to whom royal functions are to be delegated, is absent from the United Kingdom or intends to be so absent during the whole or any part of the period of such delegation, the Letters Patent may make provision for excepting that person from among the number of Counsellors of State during the period of such absence.

..any person disqualified under this Act from being Regent shall be disqualified from being a Counsellor of State.

3. Any functions delegated under this section shall be exercised jointly by the Counsellors of State, or by such number of them as may be specified in the Letters Patent, and subject to such conditions, if any, as may be therein prescribed.

4. The provisions of this section shall apply in relation to a Regent with the substitution for references to the Sovereign of references to the Regent, so, however, that in relation to a Regent subsection (2) of this section shall have effect as if after the word "next," where that word first occurs therein, there were inserted the words "after the Regent".

5. Any delegation under this section shall cease on the demise of the Crown or on the occurrence of any events necessitating a Regency or a change of Regent."

6.  Given that there are around four hundred available members of the Privy Council but no clear rules as to quorum other than the requirement that the monarch (or the regent or councillors of state) must preside, it should never be impossible to arrange for orders in council. The business is in any event purely formal - this successor to the feudal King and Council does little more than record the decisions already taken elsewhere, and members traditionally stand throughout the short meetings. Some secondary legislation is issued in this format for reasons of tradition and status (such as in the case of colonial constitutions or treaty confirmation matters). But the Crown is informed in advance of the business, which affords the usual opportunities to advise, encourage and warn.

7.  The Crown appoints Secretaries of State and Ministers of the Crown. There is complete legal discretion to do so under the Royal Prerogative, but, increasingly over the past three hundred years, there has grown a firm convention that the Crown acts on the basis of the advice of the Prime Minister and does not exercise personal discretion to appoint "favourites". The Crown's powers are subject to the House of Commons Disqualification Act 1975 and the Ministerial and Other Salaries Act 1975, which set limits to the maximum number of Ministers. Paradoxically, there is greater regulation of Ministers than Secretaries of State by the Ministers of the Crown Act 1975. Ministers can be designated under the Act, thus avoiding the prerogative powers. Most Ministerial offices have been designated by legislation. The office of Lord Chancellor is by contrast an ancient creature of the prerogative and so is the plaything of the Prime Minister's advice; the Chancellor of the Exchequer is likewise prerogative in nature.

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