Will Charles now try and remove Harry as Counsellor of State? Legal experts say prince can’t resign from role and King can only take him off the list of deputising royals by consulting Parliament after duke formally cut ties with the UK
King Charles III can only remove Prince Harry as a Counsellor of State by consulting Parliament, legal experts confirmed today after his son formally cut ties with Britain.
The Duke of Sussex also cannot resign from the stand-in role which means he can technically still deputise for the monarch if he is overseas on an official trip or ill.
Charles has postponed all public-facing duties while undergoing cancer treatment, but is continuing with behind-the-scenes work on his red boxes of state papers.
Provisions for the Counsellors are made under the Regency Acts 1937 to 1953 and those who can currently stand in for the King include his wife Queen Camilla, along with the four most senior adults in the line of succession who are aged at least 21.
This quartet is Prince William, Princess Beatrice, the disgraced Prince Andrew and Harry, who now lives in California after stepping down as a working royal in 2020.
Debate over Harry being one of Counsellors returned today after it was revealed he had updated his records in the UK to make clear that he no longer lives in Britain.
But constitutional expert Craig Prescott, a lecturer in law at Bangor University, said Buckingham Palace could only ditch Harry as a Counsellor by going to Parliament.
Charles and Harry at the Our Planet’ premiere at the Natural History Museum in London in 2019
William, Harry, Meghan & Charles at the Commonwealth Service at Westminster Abbey in 2019
He told MailOnline: ‘It’s a matter for Parliament. But as happened with the Counsellor of State Act 2022, if the Palace wanted to change the law, then they would consult with the Government, who would introduce the necessary legislation in Parliament.
‘It would be passed very quickly, any change would only be a short bill.
‘But the Palace only seem to move then there’s a real issue, they are very cautious about any legislation to the with the monarchy, because the Government and Parliament have other priorities.’
Mr Prescott was referring to the 2022 Act when the King added Princess Anne and Prince Edward to the list of members of the Royal Family who can stand in for him when he can’t fulfil certain official duties.
Asked whether Harry could quit the Counsellor role himself, Mr Prescott added: ‘No. He can’t resign because it’s laid down in the Regency Acts who is a Counsellor of State – and for that matter who would be the Regent.
‘There is no provision for anyone to resign. At least as regards Counsellors of State, the only thing you can do is simply not to act, with others doing so instead.’
Towards the end of the late Queen’s reign, the Counsellors dilemma was left unresolved, with sources saying there would be no change in the law despite the scandal surrounding Andrew, and Harry’s permanent departure for the US.
Public debate and pressure to resolve the situation increased when Elizabeth II got Covid and became increasingly frail.
Then in November 2022, just two months after she died, Charles moved to address the issue, appearing to underline there was no way back into public life for his brother Andrew, as well as sidelining his son Harry.
The King, however, opted to ask for a less drastic option by seeking to add Anne and Edward, rather than removing Andrew and Harry entirely from the list.
Charles’s intention was announced that month in a signed message read to the House of Lords by the Lord Chamberlain, Lord Parker of Minsmere, who is the most senior official in the royal household.
Charles, William, Kate, Meghan and Harry at church in Sandringham on Christmas Day 2018
Camilla watches as Harry kisses Charles at the Chelsea Flower Show in London in 2013
The King said the aim of the increase was to ‘ensure continued efficiency of public business when I am unavailable’. The message was read out on Charles’s 74th birthday.
In December that year, Anne and Edward were officially added to the list under the Counsellors of State Act 2022.
It came after Labour Peer Viscount Stansgate, the son of the late left-wing firebrand Tony Benn, questioned the list of royals able to officiate when the King is not available, given it included Andrew and Harry – ‘one of whom has left public life and the other of whom has left the country’.
Today, Mr Prescott also spoke about what it could mean for Harry’s position as a Counsellor that he is no longer domiciled in a part of the UK – ie England.
He told MailOnline: ‘The law is as provided for by the Regency Acts 1937 to 1953. However, just what is meant by ‘domicile’ in the Regency Acts is unclear.
‘Prince Harry will always retain his domicile of origin of being UK, but he’s likely by now to have acquired a domicile of choice.
‘If he hasn’t, he will do at some point – assuming he remains in the US as his only primary residence, and the location of his business interests and so on.
Harry, Charles and William in London for the Illegal Wildlife Trade Conference in February 2014
‘In a sense the issue of Harry became a dead letter when the Counsellor of State Act 2022 was passed, adding Prince Edward and Princess Anne to the pool of Counsellors of State, and the clarification that only working members of the Royal Family would ever act.
‘So with Prince William, two of these three would be expected to act if need be. It’s been interesting, even with the King’s cancer diagnosis, that Counsellors of State have not been appointed. But it is a sign that the King is still able to do the ‘desk job’ of dealing with state papers and his red boxes.’
He said the constitutional implication of Harry losing his UK domicile is that ‘should anything happen to the King and William in short succession, so that Prince George becomes King before he turns 18, the Regency Acts provide for a Regent, who is the first in the line of succession, domiciled in the UK and aged over 21. This would be Prince Andrew’.
But Mr Prescott continued: ‘The Regency Act 1953 was passed, to cover the circumstance of Charles becoming King before he was 18, and this would have made Prince Philip the Regent.
‘So following this precedent I would imagine that if William became King while Prince George was younger than 18, they would pass another Regency Act that would make the Princess of Wales the Regent, or perhaps another working royal.’
Speaking further about the US now appearing to be Harry’s domicile of choice, he explained how this was effectively the Duke ‘acquiring a new domicile’.
Charles and his son Harry arriving together at Eton College in Berkshire in September 1998
Mr Prescott said: ‘To prove that someone has a new domicile you must show that you have settled permanently in the country you are now claiming you are domiciled, that you intend to stay there for the rest of your life, and that you have broken your ties with the country that is your domicile of origin.
‘When considering intentions, factors such as your permanent place of residence, business, social and family commitments will be taken into account when deciding whether someone has acquired a domicile of choice.
‘Clearly, this is easier to prove over time, in that it’s unlikely that you have acquired a domicile of choice on day one of moving to a new country, but at some point it’s easier to prove an intention to remain in the new country permanently if you’ve been there for a few years.’
He added that citizenship was an important factor, saying that with domicile in the UK, ‘if you have a non-UK domicile of origin and then you acquire UK citizenship, then HMRC consider that’s a strong indication that you have acquired a domicile of choice’.
Mr Prescott also pointed out that ‘tax is the context when questions of domicile most arise these days’.
However he explained that Harry’s was an ‘unusual case’, given that there were many factors pointing towards him acquiring a domicile of choice of the US, but he still retains the title of a ‘Prince’ of the United Kingdom.
Charles and Princess Diana leave hospital in London with a baby Prince Harry in 1984
Mr Prescott also cited Harry’s interview with ABC’s Good Morning America in January in which he confirmed he had ‘considered’ becoming a US citizen.
And the expert said: ‘If he made such a move, that would remove any doubts about this.’
The Counsellors are authorised to carry out most of the official duties of the Sovereign such as attending Privy Council meetings, signing routine documents and receiving the credentials of new ambassadors to the UK.
But certain core constitutional functions cannot be delegated, like appointing a prime minister or creating peers.
Andrew stepped down from public life over his friendship with paedophile billionaire Jeffrey Epstein in 2019.
The late Queen’s second son went on to pay millions to settle a civil sexual assault case to a woman he claimed never to have met.
Anne was previously a Counsellor between 1971, when she turned 21, and 2003, when she was replaced by William when he reached his 21st birthday.
Edward was a Counsellor between 1985, at the age of 21, until 2005 when his nephew Harry turned 21.
