Why did Queen’s Counsel automatically become King’s Counsel? Parliament and the Demise of the Crown Act 1901
The Demise of the Crown Act 1901 and its parliamentary history
Following the death of Queen Elizabeth II on 8th September 2022 the Bar council announced that “We have been advised by the Crown office that the title QC changes to KC with immediate effect. The change is automatic so there are no new Letters Patent”. In its press release marking the death of the Queen the statement from the dean of faculty narrates the dean is Roddy Dunlop KC and the Faculty of Advocates issued a direction to members.
So why does the change happen automatically?
The matter was dealt with the last time a long standing reigning Queen died and was replaced by her son as King. The Demise of the Crown Act 1901 received royal assent on 2nd July 1901.
The Act is very short comprising two sections, only one with real substance.
Section 1 (1) provides that
“The holding of any office under the Crown, whether within or without His Majesty’s dominions, shall not be affected, nor shall any fresh appointment thereto be rendered necessary, by the demise of the Crown.”
Demise in this context is a term which covers the death of the monarch or another termination of the monarch’s reign such as abdication (although that abdication means there is a demise of the Crown is set out explicitly in s 1 (1) of His Majesty’s Declaration of Abdication Act 1936)
The effect of the legislation is that all offices (including that of Queen’s or King’s Counsel) do not require to be granted again on the death of the monarch.
The automatic effect of s 1 (1) meant then that at the time the King succeeded to the throne the office of Queen’s Counsel became King’s Counsel.
What happened in 1901 though? Queen Victoria died on 22 January 1901 and this legislation got royal assent on 2nd July 1901. So how was the position for offices of the crown in 1901 dealt with?
Section 1 (2) of the 1901 Act provides the answer. The legislation was given retrospective effect. Section 1 (2) provided,
“This Act shall take effect as from the last demise of the Crown.”
This provision was repealed as spent (that is to say, that it was no longer needed) by the Statute Law Repeals Act 1973.
The bill was introduced on 25th March by the attorney general Sir Robert Finlay and he narrated the problem underpinning the legislation (cols 1127–1128).
“The House may be aware that, according to the doctrine of Common Law, all offices held of the Crown were vacated by the death of the Sovereign, and fresh appointments by the successor were necessary. Until such appointments were made there would be a complete suspension of all functions of the body politic. The extraordinary inconveniences incident to such a rule have led to several qualifications by statute, but except as to commissions in the Army and Navy, as to which the rule was abrogated in 1837, it still prevails with the qualifications to which I have referred. These qualifications may be shortly stated. In 1707, by the Act regulating the succession to the Crown, it was provided that officers in Great Britain and Ireland and the Colonies should continue to hold their commissions for six months after the demise of the Crown, subject, of course, to the power of earlier removal; and in 1830 this period was for the colonies extended to eighteen months.”
The attorney general noted that
“if the rule were acted upon in practice, it would produce an entire paralysis of all government until the pleasure of the new Sovereign should be made known.”
He expressly referred to issues regarding ministers of the crown and justices of the peace as causing particular problems.
The purpose of the bill was then set out
“The rule that offices are held only during the life of the Sovereign by whom the appointments were made is, in fact, a legacy from days in which constitutional government as it now exists in this country had not been evolved, when, by the death of the Sovereign, Parliament was not only ipso facto dissolved, but all executive government, and indeed all judicial functions, were regarded as having their service in the personal will of the Sovereign for the time being. No good reason can be given for the continued existence of such a rule at the present time, and it is proposed by this Bill that the tenure of office should not be affected by the demise of the Crown. The Bill will apply to all offices under the Crown, whether within or without His Majesty’s dominions, and it is proposed that it should take effect as from the last demise of the Crown. I have only to add that it will not in the slightest degree affect the prerogative of the Crown to dismiss at pleasure those who hold office, but it will only dispense with the necessity for reappointment.”
The throwaway reference to the bill applying from the last demise of the crown noted the retrospective effect of the legislation albeit within the period of 6 (or 18) months during which the appointments were deemed to continue under the law outstanding at the time.
The bill had its second reading in the Commons on 1st April 1901.
The government was led in debate by the attorney general and he reiterated the points he had made a week earlier, and when questioned during the debate despite being unaware of the terms of the bill as he had no copy with him (see col 386), made clear that the bill was intended to be retrospective.
In response to earlier queries about the seriousness of the matter the attorney general made clear that in his view it was a fix to deal with a minor matter (at col 389)
“In the course of the many questions asked last week we were told that this was a great constitutional question. I have the greatest respect for the ingenuity of hon. Gentlemen who take that view, but I venture to say that to talk of this as a great constitutional question shows an absence of sense of proportion, and I submit with “bated breath,” in presence of a good many of my fellow countrymen, that it shows a little lack of humour. If this is a great constitutional question, in the name of common sense where would a small constitutional question be found?”
It might have been thought then that the bill would have passed with little debate or controversy.
The retrospective nature of the bill though provoked debate and on the constitutional nature of the bill given the political context at the time.
The UK was at the time engaged in the Boer war, and a general election had taken place in the autumn of 1900. This election saw a landslide victory for the Conservatives and the Liberal Unionists only weeks before the death of Queen Victoria. The election victory though, it was argued by opposition politicians, took place while the electorate thought the Boer war (which continued until May 1902) had been won.
On their reading of the then existing law (which was disputed by the attorney general) there would have to be another general election (or by elections of seats held by ministers), this time with the knowledge the war was continuing. The position is set out most notably in the second reading debate by an Irish MP, William O’Doherty (at cols 390ff). A further strand of argument against the retrospective nature of the bill noted that the effect of the legislation could potentially remove fines that were arguably imposed on ministers by strict application of the then current law and this exercised some comment.
The weight of the constitutional argument was though doubted by the MP for Oxford University Sir William Anson (someone whose name is not unfamiliar to lawyers) (col 401).
The bill was passed at second reading by a sizeable majority.
During the second day in committee, Edmund Robertson, MP for Dundee sought an amendment to remove subsection (2) of clause 1 and to make the legislation applicable only from the next demise of the Crown (cols 1145ff). The committee debate considered the nature of retrospective legislation and despite concerns about the principle the implications of not allowing the legislation to be retrospective meant that the subsection survived.
Third reading took place on 10th June.