Why Prince Andrew and Prince Harry can fill in for the King, and how the law might change

A fundamental principle at the heart of the UK constitution is that the crown never dies. On the death of one monarch, the heir to the throne immediately accedes. This smooth transition ensures that the government (which is carried on in the name of the crown) continues largely unaffected.

While the monarch is required to remain out of party politics, there are a number of decisions made by the government and parliament that require the monarch’s formal approval. The appointment of a new prime minister, granting royal assent to new legislation and ratifying international treaties are just a few. Some of these matters require the royal sign manual – the sovereign’s personal signature.

The monarch, being the head of state of 15 countries, is also required to travel overseas. And, as monarchs are human beings, they may fall ill from time to time. So what happens when the monarch is required to fulfil constitutional duties, but cannot do so in person? Under the Regency Act 1937, which was updated in 1943 and 1953, the monarch can delegate their powers to counsellors of state, two of whom must act together and exercise the powers of the monarch on their behalf. The law provides that the counsellors of state are the spouse of the monarch and the first four in the line of succession who are of full age (over 21) and domiciled in the UK. The heir apparent becomes a counsellor of state from the age of 18.

As this is regulated by legislation, parliament can make changes. In 1953, after Elizabeth II became Queen, the Regency Act 1953 made the queen mother an extra counsellor of state for the rest of her life. The death of her husband George VI in 1952, had meant that she was no longer a counsellor of state, as she was no longer the wife of the monarch.

The late Queen’s extensive overseas travel (which led to some newspapers in the 1950s describing her as “the Jet Age Queen”) meant that counsellors of state were often required, and for most of her reign were appointed twice a year. Her significant place on the world stage would not have possible without counsellors of state ensuring that matters at home were taken care of on her behalf.

During the first few decades of Elizabeth’s reign, the queen mother and Princess Margaret often acted as counsellors of state. In 1974, high inflation, prolonged industrial disputes with miners and railway workers, together with concerns over oil supplies meant that politics reached a difficult moment.

With the Queen in New Zealand for the Commonwealth Games, the pair acted on government advice to declare a state of emergency. And after the prime minister, Edward Heath, asked the Queen via telegram to dissolve Parliament, that task, too, was carried out by the queen mother and Princess Margaret.

Charles’s challenges Now that Charles III has become king, he is no longer a counsellor of state. Holding the role are Camilla the Queen Consort, William the Prince of Wales, Prince Harry the Duke of Sussex, Prince Andrew the Duke of York and Princess Beatrice.

Two of these names are notably controversial. Prince Andrew has not conducted public duties since his fateful TV interview in 2019, and was stripped of his remaining military titles after he reached an out-of-court settlement with Virginia Giuffre in early 2022. Prince Harry is no longer a senior royal following his decision to no longer conduct royal duties and live in America. He remains a counsellor of state as he retains his British domicile by maintaining the lease of Frogmore Cottage in Windsor.

Prince Beatrice has never conducted public duties, and the queen consort will usually be travelling alongside the King. This means that as things stand, when the King travels overseas, only Prince William can act as a counsellor of state, when legally, two counsellors are needed to fulfil the King’s duties.

However, the King cannot simply replace counsellors of state. Their role is a matter of law, at least until parliament passes legislation to change it. There has been no such legislation proposed in the last few years, though royal commentator Robert Hardman suggested this was considered over the summer.

Though turbulence in British politics combined with the Queen’s death has stalled any likely conversation, it is expected that legislation will be enacted before the King travels overseas for any extended period of time. The government gave a heavy hint that legislation is on its way, when the matter was raised in the House of Lords in October.

The question is what form that legislation will take. One possibility would be to specifically remove Prince Harry, Prince Andrew and Princess Beatrice, with the next three in the line of succession replacing them. But this would include Princess Eugenie, who does not conduct royal duties either. In time, this would also include the children of Prince Edward and the Countess of Wessex – Lady Louise Windsor and Viscount Severn – who are also unlikely to conduct public duties.

A better solution is to follow the precedent of the Regency Act 1953, and specifically include more members of the royal family as counsellors of state, as was done with the queen mother. Those who conduct royal duties, such as Prince Edward and Princess Anne are obvious candidates. Having three active counsellors of state would create the necessary flexibility so that Prince William, if he wished to, travel abroad at the same as the King.

The legislation may also consider adding the Princess of Wales as a counsellor of state. In any event, she will become one when her husband becomes king. This also creates the possibility that William and Catherine could act together, giving the country a glimpse of the next king and queen. The King’s reign has only just begun, but at the age of 73, it is not too early to start thinking about the transition to the next reign.