12th September 2022
The Accession Council was broadcast live on Saturday morning.
That broadcast was a boon for the public understanding of the constitution of the United Kingdom, showing the sort of things that are usually hidden from public view.
It was fascinating watching for anyone interested in the nature of our constitutional arrangements.
You can watch it here – and I will explain below why various aspects of it were important and/or interesting:
https://www.youtube.com/watch?v=aKci6iKET2Q
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The Accession Council is a configuration of the Privy Council.
David Torrance, who has written an outstanding briefing for the House of Commons library on what happens when a monarch dies, explains the background of the Accession Council:
That there is now no longer a strict statutory requirement for an Accession Council should not mislead you into thinking that the council meeting was mere ceremony and its content mumbo-jumbo.
There was actually a point to a good part of it, even if that point was constitutional rather than strictly legal(istic).
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For example, take the oath in respect of the Church of Scotland.
(Here note I am neither Scottish nor a Scots lawyer, and so please nudge me in the comments below if I put my foot wrong.)
The taking of the oath is a legal requirement, under the Protestant Religion and Presbyterian Church Act of 1707. 
Under this Act, it is provided among other things:
“And Lastly That after the decease of her present Majesty (whom God long preserve) [Anne] the Sovereign succeeding to her in the Royal Government of the Kingdom of Great Britain shall in all time comeing at his or her accession to the Crown Swear and Subscribe that they shall inviolably maintain and preserve the foresaid Settlement of the true Protestant Religion with the Government Worship Discipline Right and Priviledges of this Church as above established by the Laws of this Kingdom in prosecution of the Claim of Right”.
This is an Act not of the Parliament at Westminster but of the Parliament of Scotland.
Indeed, it appears to be the legislation passed just before that parliament voted for union with England:
The Act was passed by the Scottish Parliament at a time when the then Queen looked as if she was to be succeeded by distant relatives – and the Scottish Parliament was presumably anxious to ensure that its position would be protected by the new monarch.
The 1707 Act has (as far as I can tell) a unique legal and constitutional status.
The Westminster Parliament cannot repeal this Act if there is a regency in place.
Under the Regency Act of 1707:
“The Regent shall not have power to assent to any Bill for changing the order of succession to the Crown or for repealing or altering an Act of the fifth year of the reign of Queen Anne made in Scotland entitled “An Act for Securing the Protestant Religion and Presbyterian Church Government.””
I am not aware of any other statutory provision which prevents the Royal Assent of an otherwise passed Bill – and it is a deft device to achieve a measure of entrenchment.
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Now let us turn to seals.
It is a mark of our age that it is difficult not to think of aquatic animals when the word “seal” is used:
Privy Seal pic.twitter.com/d60mSxhQE8
— Grunwin (@grunwin) September 10, 2022
Unhelpful.
But if we can put out pinniped friends aside for a moment, seals were – and are – important.
Part of the business of the Accession Council was for the new king to approve the various seals still used in government business.
These seals convert documents that have no legal standing and effect into instruments that can have just as much legal standing and effect as any Act of Parliament.
Seals are an important part of the business of government.
The current seals have the name, image and chosen inscription of the late Queen:
(From Wikipedia.)
There was no legal requirement for Charles to confirm that the current seals could continue to be used, for the Succession to the Crown Act 1707 provides:
“And be it further enacted by the Authority aforesaid That the Great Seal of Great Britain the Privy Seal Privy Signet and all other Publick Seals in being at the Time of the Demise of Her Majesty Her Heirs or Successors shall continue and be made use of as the respective Seals of the Successor until such Successor shall give Order to the contrary”.
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There was also a confirmation that Charles will surrender the (considerable) revenues of the Crown Estate in return for the Sovereign Grant.
And today (the Monday after the Saturday) there has already been a statutory instrument amending this provision of 2011:
With this one:
Given the amounts involved – the annual revenue of the Royal Estate is about half a billion pounds – one can appreciate why the government would want to act quickly to ensure the legal framework was up-to-date.
It should be noted that Charles referred to the “tradition” of surrendering the revenue of the Royal Estate, as if it were a voluntary act which he just happens to wishes to continue with, rather than being a firm legal obligation.
This “tradition” dates back to George III and it is unthinkable that the surrender would ever be rescinded, but it is an element of our uncodified constitution which owes more perhaps to a “good King’s theory of the constitution” rather than the more well known “good chap’s”.
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Charles also approved legislation for a bank holiday for the State Funeral.
This approval was legally required under the Banking and Financial Dealings Act 1971:
The usual statutory bank holidays are listed in schedule 1 to that Act – and so for England and Wales they are:
The eagle-eyed among you will see that neither Christmas Day nor Good Friday are statutory bank holidays.
This is because they are bank holidays at common law, a point which is recognised by this wonderful sub-section that follows the one just quoted:
This means the King and his Privy Council has the legal power, by proclamation, to make it like Christmas everyday.
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The broadcast of a meeting of the Privy Council itself – even if this special one – is illuminating.
The business is done directly between the monarch and the ministers attending, seeking approval for various measures.
A famous such meeting took place three years ago:
Note the “Note” at the bottom.
The business of the council is conducted standing up:
The same principle commonly applies to morning meetings in tech startups. Who knew that Queen Victoria was the first Agile Scrum Master?
— Frederic Heath-Renn (@flahr) September 11, 2022
Orders in Council can cover many things, ranging from important constitutional acts to trivial-seeming amendments of existing royal charters.
They are, however, a system of making law parallel to the legislative process at Westminster.
Many would be surprised at what can be given legal effect outwith the Westminster Parliament.
The meetings take place wherever the monarch happens to be – and, as Torrence explains in another outstanding briefing, the Queen would engage with ministers on the measures to be approved:
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The public broadcast of the Accession Council was a decision that must have been made some time ago.
It is difficult to believe that the filming was arranged at speed after the death of the Queen.
There seems to be no inherent reason why they cannot be filmed and broadcast – and so it is presumably in the gift of the King as and when other Privy Council meetings are filmed and broadcast.
Perhaps future meetings will also now be filmed and broadcast – showing Charles engaging face-to-face with government ministers on a range of issues.
This may be good – or bad – for Charles and/or the ministers involved.
If so, they would be an interesting complement to the filming and broadcast of parliamentary proceedings.
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The business of the Accession Council included matters that went back to the Stuarts.
The content included the monarch’s promise to protect of the Church of Scotland; the monarch’s tradition of surrendering the revenues of the Crown; the practical need to carry on the Monarch’s government; and the proclamation of a public holiday.
As the historian Judy Stephenson noted, the Accession Meeting was in the round a reminder of various agreements and compromises over centuries that have shaped our current constitutional arrangements:
For me all the different proclamations demonstrated the persistence of the unique set of agreements that a union and constitutional monarchy were the best way of managing power and responsibility over the centuries. The restamping of lots of important little contracts.
— Judy Stephenson (@judyzara) September 11, 2022
The cameras and coverage gave us for the first time the human faces of that commitment – and importantly, faith. Glorious, and very profound.
— Judy Stephenson (@judyzara) September 11, 2022
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The decision to film and broadcast the Accession Council was a wise and informative one.
A whole sector of the usually hidden constitution was opened to the public gaze – and it was informative, and not just for constitution geeks.
It was also a reminder of the key distinction between the Crown and those who have served the Crown.
The King on one side, and – roped-off – some familiar faces on the other:
The Accession Council meeting should now be required viewing for history and law students, among others.
And let us hope that further Privy Council meeting are now televised.
There are few events in which varied elements of our constitution, from different times, are brought together in one place and at one time.
I wish it could be possible to have such insights every day.
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Just reading your comments on seals, a belief that they may be somehow “old-fashioned” is very Anglocentric. There is at least one major culture – China – where possession of the corporate seals or chops, whether rightful or not, may prove determinative. See Tim Clissold’s excellent “Mr China”, passim for how this can work out in practice (badly).
I thought it was a bit dull, and now I discover that it was absolutely fascinating: and this is why I am a supporter of this blog!
It was absolutely and unexpectedly fascinating stuff. I wasn’t planning to watch what appeared to be a formality but I’m very glad I did succumb to curiosity.
I agree that televising more Privy Council meetings would be a very good thing, and perhaps under King Charles’ rule things will be different and we will see more of this.
The shuffling of the pens and the royal inkwell while the King was signing the documents was worth watching all by itself. I thought I saw one of the council members pocket one of the pens too, but maybe he had brought his own.
Pedantic: the scrum guide makes no claim to require people to stand up at the daily scrum. Just sayin’
(Which is good because there may be great voices to hear from that aren’t physically able to do so. Other mechanisms to keep meetings short are available).
https://scrumguides.org/scrum-guide.html
Pedantic: most people who claim to be pedantic are not being pedantic
[i think I’ve managed to correct the formatting; I’d be grateful if this could be substituted for the earlier unformated one]
Interesting post.
The statutory requirements for the oath concerning the Church of Scotland is also in the English Act of Union of “1706”
– the text of the Protestant Religion and Presbyterian Church Government Act [PRPCGA] is set out, within quote-marks, at Section II;
– the equivalent English Act in favour of the Church of England [contemplated by, and expressly permitted by, the PRPCGA as long as it doesn’t derogate therefrom] is likewise set out in Section III;
– Section IV declares that both “Church” Acts are to be observed as “fundamental and essential” conditions of the union.
It’s also set out in the Scottish Union Act 1707.
[FWIW, Section V of the English Union Act states that the two Union Acts and two Church Acts are and are to be “in all time coming” the “intire” union].
Accession as used in the Scottish legislation [and thus repeated verbatim in the English legislation] derives from the Claim of Right Act 1689 [CORA], which was the main Act cited by the now-Monarch in the actual wording as he was taking the oath.
Basically James VII [II in England & Wales, and Ireland] had assumed the royal [ie executive] function without taking the Scottish coronation oath.
The first recital and first operative provision of CORA state that one cannot exercise the regal power without having taken the coronation oath.
After the Scots had deposed James, would-be monarchs complied with the requirement, e.g.
1689: https://www.thegazette.co.uk/London/issue/2453/ – and
1702: https://rps.ac.uk at [1702/6/28] – The Act recognising Queen Anne’s royal authority proceeds on two, quite separate, premises:
1. William had died and she was the next protestant successor, and 2. she’d sworn the coronation oath.
Or take Charles II; he was proclaimed king as soon as news of his father’s execution arrived in Edinburgh; but his Accession was in 1651, after extensive negotiation and the taking of the required oaths. see eg https://rps.ac.uk – at [1650/3/12].
I’d say that in Scotland, “accession” is being given its usual, active, meaning of voluntarily entering a commitment, [as in a state acceding to a treaty].
This wasn’t necessarily controversial: in the Regency Bill debates in 1910, Arthur Steel-Maitland, the future Conservative party chairman, said
“The Sovereign takes an Oath to observe the establishment of the Church in Scotland before he is declared King. He takes this Oath before the Privy Council” – Hansard 22 July 1910.
https://api.parliament.uk/historic-hansard/commons/1910/jul/22/clause-4-regent-not-entitled-to-give-the#S5CV0019P0_19100722_HOC_218.
One other way to look at the part-surrender of the hereditary revenues is that the monarch was supposed to fund the running of the state from them, so its him/her rather than the rest of us who has the better part of the bargain.
[your link to the “Regency Act 1707” is to the 1938 Act.]
Presumably it was Sellars & Yeatman who devised the ‘Good King theory of Monarchy’?
Fascinating and helpful, thanks.
It has made me focus on what is really annoying me about what is happening. It’s the fact that so much of it is being conducted in fancy dress, which emphasises the gap between much of the establishment and the rest of us. The death of such a head of state as our late Queen should be a time to emphasise national unity.
They’ll have given up the limos and taken to bikes before that happens.
O.K., that’s it. I’ve had enough. I’m announcing here my intention to usurp the throne and start a new dynasty. The grounds for my claim? I’m not them. What more do you want?
Oh, and does anyone know a good lawyer? I’ve a feeling I’m going to need one.
Cheeky, sneaking in a gratuitous picture of a man from Birmingham to illustrate Christmas. Very amusing! Keep on posting, it’s all most informative
That last line cleverly demonstrates your complete nerdery about matters constitutional. Continuous tinsel. Brilliant!
Fascinating stuff as ever…
Thanks for this post. I’m glad you highlighted the fact that legislation can be promulgated via an Order in Council and that it can be secretly done outside Parliament and is on occasion used to pass laws pernicious in effect on civil liberties.
The rest of this is not on topic but in view of the multiple reports of peaceful anti-monarchy protestors in a public place being removed by police I would like to read your take on this.
Two comments on seals:
Most of the 1707 Succession to the Crown Act has been repealed – Section IX (which you quote) is one of the few sections to remain in force. As you quote, the Section opens with words “And be it further enacted by the Authority aforesaid”. The Legislation.gov.uk does not actually have an Authority named. Also the King confirmed the seals of the devolved authorities which would not have existed at the time of the 1707 Act. Could these be reasons for taking a prudent step to avoid any later arguments?
A more general point about seals: they very usefully confirm that the version of the document to which they are appended is the authentic version. In this electronic age when many versions of a document can exist and people do email approval of something with a name but which is not appended, a sealed version can be invaluable in determining the authentic text. There are academic controversies over what the authentic or final version of historic documents contained; for instance the Papal letter of Adrian IV known as “Laudabiliter” conferring the lordship of Ireland on Henry II where we only have a second hand report written 33 years after the original missive which may misrepresent the original.
A COMMENT ON THE SCOTTISH OATH
The oath as it currently stands does not in any way interfere with anyone’s freedom to practice their religion – including the King.
The Protestant Religion and Presbyterian Church Act 1707 as amended in 1932 has two practical effects today. The first is to secure the continued existence of the [presbyterian] Church of Scotland, and its bishop-free system of government. The second is to secure the continued existence of the four pre-reformation universities in Scotland – St Andrews, Edinburgh, Glasgow and Aberdeen.
The Amendment in 1932 removed a provision in the original Act imposing a religious test on professors and others in these four universities. This provision had teeth. It excluded David Hume from becoming Professor of Philosophy at Glasgow and in the nineteenth century was employed – by Roman Catholics! – to remove a professor.
The Act also contained a prohibition on imposing any oath “within this Kingdom contrary to or inconsistent with the foresaid true Protestant Religion and Presbyterian Church Government Worship and Discipline.” This was a protection for freedom of religion.
Oaths had been used by Henry VIII and Elizabeth to enforce the Royal Supremacy in England – a refusal to swear Henry’s oath had cost Thomas More and John Fisher their heads. In 1559 every bishop save one was deprived by Elizabeth when they refused to swear her oath. James I and VI had become entangled in a protracted argument with Bellarmine and Suarez when he proposed an oath of allegiance that did not contain the most objectionable features of the Tudor oaths.
But this was all more than a 100 years before the 1707 Act. A more likely trigger for Scottish concern was a Memorandum which James VII of Scotland had left behind when he fled in 1688. This was published by the new regime in 1690 under the title “The Jesuit’s Memorial for the Intended Reformation of England under their first Popish Prince”. It had been written in the 1590s, by Robert Parsons, and it contained a proposal that Members of the House of Commons should be required to swear that they would “defend the Catholic faith”.
It is far from clear that the 1707 Act would have prevented a king of the United Kingdom of Great Britain from adopting Parsons’ proposal as his oath was designed to prevent any MP from voting to restore the Acts of Supremacy and Uniformity and would have been enforced in London, so outside the Kingdom of Scotland.
The 1707 Act – except for its now repealed insistence on a test for academic positions – seems to have been designed solely to protect the Church of Scotland. It may be an anachronism but it seems a pretty harmless one.
Excellent decision to seize an opportunity to insert a link to the greatest Christmas song of all time, sir. Well done!