Regency Acts

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The Regency Acts are Acts of the Parliament of the United Kingdom passed at various times, to provide a regent in the event of the reigning monarch being incapacitated or a minor (under the age of 18). Prior to 1937, Regency Acts were passed only when necessary to deal with a specific situation. In 1937, the Regency Act 1937 made general provision for a regent, and established the office of Counsellor of State, several of whom would act on the monarch's behalf when the monarch was temporarily absent from the realm. This Act forms the main law relating to regency in the United Kingdom today.

An act of parliament, also called primary legislation, are statutes passed by a parliament (legislature). Act of the Oireachtas is an equivalent term used in the Republic of Ireland where the legislature is commonly known by its Irish name, Oireachtas. It is also comparable to an Act of Congress in the United States.

Parliament of the United Kingdom supreme legislative body of the United Kingdom

The Parliament of the United Kingdom of Great Britain and Northern Ireland, commonly known internationally as the UK Parliament, British Parliament, or Westminster Parliament, and domestically simply as Parliament, is the supreme legislative body of the United Kingdom, the Crown dependencies and the British Overseas Territories. It alone possesses legislative supremacy and thereby ultimate power over all other political bodies in the UK and the overseas territories. Parliament is bicameral but has three parts, consisting of the Sovereign, the House of Lords, and the House of Commons. The two houses meet in the Palace of Westminster in the City of Westminster, one of the inner boroughs of the capital city, London.

A regent is a person appointed to govern a state because the monarch is a minor, is absent or is incapacitated. The rule of a regent or regents is called a regency. A regent or regency council may be formed ad hoc or in accordance with a constitutional rule. "Regent" is sometimes a formal title. If the regent is holding his position due to his position in the line of succession, the compound term prince regent is often used; if the regent of a minor is his mother, she is often referred to as "queen regent".

Contents

An example of a pre-1937 Regency Act was the Act of 1811 which allowed George, Prince of Wales to act as regent while his father, King George III, was incapacitated. George ruled as the Prince Regent until his father's death, when he ascended the throne as King George IV.

George IV of the United Kingdom King of the United Kingdom of Great Britain and Ireland and of Hanover

George IV was King of the United Kingdom of Great Britain and Ireland and King of Hanover following the death of his father, King George III, on 29 January 1820, until his own death ten years later. From 1811 until his accession, he served as Prince Regent during his father's final mental illness.

George III of the United Kingdom King of Great Britain and Ireland

George III was King of Great Britain and King of Ireland from 25 October 1760 until the union of the two countries on 1 January 1801, after which he was King of the United Kingdom of Great Britain and Ireland until his death in 1820. He was concurrently Duke and prince-elector of Brunswick-Lüneburg ("Hanover") in the Holy Roman Empire before becoming King of Hanover on 12 October 1814. He was the third British monarch of the House of Hanover, but unlike his two predecessors, he was born in Great Britain, spoke English as his first language, and never visited Hanover.

History

Prior to 1937, there was no permanent, general provision in British law for a regent to be appointed if the British monarch were incapacitated or absent from the country. Nor was there a general provision for a regent to rule on behalf of an heir apparent or heir presumptive who succeeded to the throne as a minor. Before the Glorious Revolution, it was up to the sovereign to decide who would be regent in any event, although this decision was often implemented by legislation. For example, section XI of the Treason Act 1554 made King Philip, husband and co-ruler of Queen Mary I, regent in the event that Mary died and her heir was male and under 18, or an unmarried female under 15.

An heir presumptive is the person entitled to inherit a throne, peerage, or other hereditary honour, but whose position can be displaced by the birth of an heir apparent or of a new heir presumptive with a better claim to the position in question. The position is however subject to law and/or conventions that may alter who is entitled to be heir presumptive.

Glorious Revolution 17th Century British revolution

The Glorious Revolution, also called the Revolution of 1688, was the overthrow of King James II of England by a union of English politicians with the Dutch stadtholder William III, Prince of Orange, who was James's nephew and son-in-law. William's successful invasion of England with a Dutch fleet and army led to his ascension to the throne as William III of England jointly with his wife, Mary II, James's daughter, after the Declaration of Right, leading to the Bill of Rights 1689.

Treason Act 1554

The Treason Act 1554 was an Act of the Parliament of England. It is not to be confused with two other Acts about treason passed in the same year, 1 & 2 Ph & M c 9 and 11.

By the Act of Settlement 1701, Parliament passed the line of succession to Electress Sophia of Hanover; this decision was confirmed and extended to all of Great Britain by the Acts of Union 1707. With the doctrine of Parliamentary supremacy firmly established in British law, it became possible for Parliament to pass legislation to determine who would act as regent during the absence, incapacity or minority of the ruling monarch.[ citation needed ] Since then several Regency Acts have been passed.

Act of Settlement 1701 Former United Kingdom law disqualifying Catholic monarchs

The Act of Settlement is an Act of the Parliament of England that was passed in 1701 to settle the succession to the English and Irish crowns on Protestants only. The next Protestant in line to the throne was the Electress Sophia of Hanover, a granddaughter of James VI of Scotland and I of England. After her the crowns would descend only to her non-Roman Catholic heirs.

Great Britain island in the North Atlantic off the north-west coast of continental Europe

Great Britain is an island in the North Atlantic Ocean off the northwest coast of continental Europe. With an area of 209,331 km2 (80,823 sq mi), it is the largest of the British Isles, the largest European island, and the ninth-largest island in the world. In 2011, Great Britain had a population of about 61 million people, making it the world's third-most populous island after Java in Indonesia and Honshu in Japan. The island of Ireland is situated to the west of Great Britain, and together these islands, along with over 1,000 smaller surrounding islands, form the British Isles archipelago.

Acts of Union 1707 Acts of Parliament creating the United Kingdom of Great Britain

The Acts of Union were two Acts of Parliament: the Union with Scotland Act 1706 passed by the Parliament of England, and the Union with England Act passed in 1707 by the Parliament of Scotland. They put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706, following negotiation between commissioners representing the parliaments of the two countries. By the two Acts, the Kingdom of England and the Kingdom of Scotland—which at the time were separate states with separate legislatures, but with the same monarch—were, in the words of the Treaty, "United into One Kingdom by the Name of Great Britain".

Thomas Parker, 1st Earl of Macclesfield English Whig politician

Thomas Parker, 1st Earl of Macclesfield, was an English Whig politician.

George II of Great Britain British monarch

George II was King of Great Britain and Ireland, Duke of Brunswick-Lüneburg (Hanover) and a prince-elector of the Holy Roman Empire from 11 June 1727 (O.S.) until his death in 1760.

Caroline of Ansbach Queen of Great Britain 1727–1737 (as wife of King George II)

Caroline of Brandenburg-Ansbach was Queen of Great Britain as the wife of King George II.

Regency Act 1705 and Succession to the Crown Act 1707

With the passage of the Act of Settlement 1701 establishing the Protestant Succession and making Sophia of Hanover heiress to the throne, it became likely that upon Anne's death the country would be without a monarch-in-residence. The Regency Act 1705 was passed "to put it [the succession] in such a method as was not to be resisted but by open force of arms and a public declaration for the Pretender". [2] The Act required privy counsellors and other officers, in the event of Anne's death, to proclaim as her successor the next Protestant in the line of succession to the throne, and made it high treason to fail to do so. If the next Protestant successor was abroad at the death of Anne, seven great Officers of State named in the Act (and others whom the heir-apparent thought fit to appoint), called "Lords Justices," would form a regency. The heir-apparent would name these others through a secret instrument which would be sent to England in three copies and delivered to the Hanoverian Resident, the Archbishop of Canterbury and the Lord Chancellor. [3] The Lords Justices were to have the power to give royal assent to bills, except that they would be guilty of treason if they amended the Act of Uniformity 1662.

Sophia of Hanover Princess of the Palatinate, Electress of Hanover, heir presumptive and ancestor of British monarchs following the Act of Settlement 1701

Sophia of Hanover was the Electress of Hanover from 1692 to 1698. As a Protestant granddaughter of James I, she became heir presumptive to the crowns of the Kingdom of England and the Kingdom of Ireland under the Act of Settlement 1701. After the Acts of Union 1707, she became heir presumptive to the unified throne of the Kingdom of Great Britain. She died less than two months before she would have become queen succeeding her first cousin once removed, Queen Anne, and her claim to the throne passed on to her eldest son, George Louis, Elector of Hanover, who ascended as George I on 1 August 1714.

The Regency Act 1705 was an Act of Parliament of the Parliament of England.

James Francis Edward Stuart British prince

James Francis Edward Stuart, nicknamed The Old Pretender, was the son of King James II and VII of England, Scotland and Ireland, and his second wife, Mary of Modena. He was Prince of Wales from July 1688 until, just months after his birth, his Catholic father was deposed and exiled in the Glorious Revolution of 1688. James II's Protestant elder daughter, Mary II, and her husband, William III, became co-monarchs and the Bill of Rights 1689 and Act of Settlement 1701 excluded Catholics from the English then, subsequently, British throne.

Two years later, after the union of Scotland and England, the new Parliament of Great Britain passed the Succession to the Crown Act 1707, reaffirming the above procedure and modifying it slightly. Under the act, if the monarch died while the heir to the throne was overseas, the government would be run until the new monarch returned by between seven and fourteen "Lords Justices." Seven of the Lords Justices were named in the Act, and the next monarch could appoint seven more, who would be named in writing, three copies of which were to be sent to the Privy Council in England. [4] The Act made it treason for any unauthorised person to open these, or to neglect to deliver them to the Privy Council. [5] The Lords Justices were to have the power to give royal assent to bills, except that they would be guilty of treason if they amended the Act of Uniformity 1662 or the Protestant Religion and Presbyterian Church Act 1707. [6]

Upon Queen Anne's death in 1714, George I, the new king, was in his home realm of Hanover. In accordance with the Succession to the Crown Act, Thomas Parker, Lord Chief Justice, became head of the regency. He served for a little over a month. [1]

Regency Act 1728

The second Act passed by the Parliament of Great Britain to deal exclusively with a regency was in 1728, the Regency During the King's Absence Act 1728 (2 Geo. 2 c. 27). The Act specified that Queen Caroline would act as regent in the absence of her husband King George II rather than the Prince of Wales, whom he despised. The Act was necessary because George II was also Elector of Hanover and was returning to his homeland for a visit.

Minority of Successor to Crown Act 1751

In 1751, Frederick, Prince of Wales, the eldest son and heir apparent of King George II, died. This left Frederick's eldest son, Prince George, as the new heir apparent. But George was only 12 at the time of his father's death. If the King were to die before Prince George turned 18, the throne would pass to a minor.

Consequently, Parliament made a provision for a regent by passing the Minority of Successor to Crown Act 1751 (24 Geo. 2 c. 24). [lower-alpha 1] This Act provided that George's mother, Augusta, Dowager Princess of Wales, would act as regent. The Act also specified that a Council of Regency be put in place to rule alongside Princess Augusta. The Council of Regency was to act as a brake on the regent's power; some acts of the royal prerogative, such as declarations of war or the signing of peace treaties, would require a majority vote of the council. The provisions of this act actually never came into force, since Prince George had already come of age at the time of the death of his grandfather.

Minority of Heir to the Crown Act 1765

In 1760, King George III ascended the throne, with his brother Prince Edward, Duke of York and Albany, as heir presumptive. However, the new King soon married and had several children. By 1765, the King had three infant children in the order of succession. Parliament again passed a Regency Act to provide for a regent in the event of the King's death.

The Minority of Heir to the Crown Act 1765 (5 Geo. 3 c. 27) [lower-alpha 2] provided that either the King's wife, Queen Charlotte, or his mother, Augusta, Dowager Princess of Wales, would act as regent. This Act also required the formation of a Council of Regency. As with the previous act, the provision of this act actually never came into force, since the eldest son of George III was already 57 when his father died.

Regency Bill 1789

The Regency Bill of 1789 was a proposed Act of Parliament to provide that King George III's eldest son George, Prince of Wales, would act as regent due to the King's incapacity through mental illness. With no legislation already in place, there was no legal basis for providing a regent, and the King was in no fit state to give Royal Assent to the Act. Parliament decided to have the Lord Chancellor (Lord Thurlow) approve the bill by fixing the Great Seal of the Realm to give Royal Assent. However, the King recovered in time before the bill could be passed. Prince Frederick, Duke of York and Albany, and others thought the Act illegal; but following his recovery, the King declared that the government had acted correctly.

The King's continuing mental problems throughout the rest of his life confirmed the need for a suitable Regency Act to be in place. However, the King was hostile to the passing of such an Act while he was of sound mind.

Care of King During his Illness, etc. Act 1811

In late 1810, King George III was once again overcome by mental illness, following the death of his youngest daughter, Princess Amelia. Parliament agreed to follow the precedent of 1789: without the King's consent, the Lord Chancellor affixed the Great Seal of the Realm to letters patent naming Lords Commissioners. Such letters patent were irregular, because they did not bear the Royal Sign Manual, and only Letters Patent signed by the Sovereign himself can provide for the appointment of Lords Commissioners or for the granting of Royal Assent. However, because the King was already incapacitated de facto, resolutions by both Houses of Parliament approved the action, directing the Lord Chancellor to prepare the Letters Patent and to affix the Great Seal to them even without the signature of the monarch. The Lords Commissioners thus appointed, in the name of the King, signified the granting of the Royal Assent to a bill which became the Care of King During his Illness, etc. Act 1811 (51 Geo. 3 c. 1). Under this Act, the King was suspended from the personal discharge of the royal functions, and George, Prince of Wales discharged those functions in the name and on behalf of the King from 1811 until 1820, when the King died and the Prince of Wales succeeded to the throne. Parliament restricted some of the powers of the Prince Regent (as the Prince of Wales became known). The constraints expired one year after the passage of the Act. The 1811–1820 period is known as the Regency era.

The importance of this Regency Act was that it did not require a Council of Regency, as required by previous legislation. One reason for this was that the Prince Regent was heir apparent to the throne in any case, and would assume full powers upon his father's death.

Regency Act 1830

In 1830 the throne passed to George IV's younger brother (George III's third-eldest son), King William IV. But William IV had no legitimate children, and given the age of his wife, Queen Adelaide, he was unlikely to have any in the future. The heir presumptive to the throne was his niece, Princess Alexandrina Victoria of Kent, who was only eleven.

As Victoria's father was dead, and Parliament mistrusted the younger sons of George III, the Act (1 Will. 4 c. 2) placed any potential regency caused by the King's death before Victoria had reached 18, in her mother, the Duchess of Kent. However, if Queen Adelaide gave birth to a child, that child was to become king or queen instead of Victoria, and Adelaide would become regent. If such a birth occurred after the King's death, his child was to immediately succeed Victoria, in Victoria's lifetime, as king or queen. The Act prohibited either monarch from marrying during the regency without the Regent's consent, and made it high treason to marry the monarch without such consent, or to assist in or be concerned in the marriage. The Act also prohibited the regent from giving royal assent to a bill to change the line of succession to the throne, or to repeal or alter the Act of Uniformity 1662 or the Scottish Protestant Religion and Presbyterian Church Act 1707. [7]

However, since Victoria became queen aged 18, and Queen Adelaide had no more children, a regency was unnecessary and the Act never came into force.

Lords Justices Act 1837

In 1837 Princess Victoria of Kent succeeded her uncle to become Queen Victoria. She became monarch aged 18, while she was still unmarried and without children. The next in the line of succession was her uncle, the 66-year-old Ernest Augustus, Duke of Cumberland, who succeeded King William IV in the Kingdom of Hanover as Salic Law prevented Victoria becoming Queen of Hanover. Thus Ernest August departed the United Kingdom to take up his role in Hanover. This meant that until the Queen married and had legitimate children, the heir presumptive to the throne and his children would reside abroad. Although they would almost certainly return to the United Kingdom in the event of Victoria dying without an heir, it would take some weeks for this to happen using nineteenth century transport.

To provide for the continuation of government in such an instance, Parliament passed the Lords Justices Act 1837 (7 Will. 4. & 1 Vict. c. 72, long title: An Act to provide for the Appointment of Lords Justices in the Case of the next Successor to the Crown being out of the Realm at the Time of the Demise of Her Majesty). This Act did not provide for a specific regent to be appointed, as it was expected that the new monarch would arrive in the country within a reasonable time. Thus the Act provided only for Lords Justices, including such people as the Archbishop of Canterbury and the Lord Chief Justice, to take up some of the monarch's duties. Unlike the powers granted to prospective regents in previous legislation, the powers of the Lords Justice were more limited; for example, they could not dissolve Parliament or create peerages.

Regency Act 1840

By 1840, Queen Victoria had married her cousin, HSH Prince Albert of Saxe-Coburg-Gotha and soon gave birth to The Princess Victoria. It was expected that the Queen would have many other children; however, they would be in minority for at least the next 18 years, and Parliament again would have to provide for a regent in the event of Victoria's death. The previous Lords Justices Act 1837 would not apply to the Queen's children, as they resided in the UK. Parliament therefore passed the Regency Act 1840 (3 & 4 Vict. c. 52) which provided for Prince Albert to rule as regent until the eldest child reached the age of 18. The Act did not require a Regency Council to operate alongside Prince Albert, potentially giving him more power than earlier proposed regents. The Act was fairly controversial at the time, as the British people were suspicious of Prince Albert and he was generally unpopular in Parliament. However Victoria lived until 1901 and, in any case, Albert predeceased her, so he did not become regent.

The Act would have prohibited the monarch from marrying during the regency without written consent from the Regent and both houses of Parliament, and made it high treason to marry the monarch without such consent, or to assist in or be concerned in the marriage. The Act also prohibited the regent from giving royal assent to a bill to change the line of succession to the throne, or a bill to repeal or alter the Act of Uniformity 1662 or the Scottish Protestant Religion and Presbyterian Church Act 1707. [8]

Regency Act 1910

In 1910 Queen Victoria's grandson, King George V, succeeded to the throne. However, his children were all under the age of 18. Therefore, Parliament passed a new Regency Act (10 Edw. 7 & 1 Geo. 5 c. 26) in 1910, that named the King's consort, Queen Mary, as regent. No regency council was provided for, following the Regency Act 1840. Once again, the provisions of this Act never came into operation, as the Prince of Wales was well over 18 by the time George V died.

Acts currently in force governing the establishment of a Regency

The Acts currently in force governing the cases in which a Regency shall come into existence and when a Regency shall cease, the determination of who shall be Regent and the powers of such Regent are the Regency Act 1937, the Regency Act 1943, and the Regency Act 1953, jointly referred to as the "Regency Acts 1937 to 1953".

Regency Act 1937

Regency Act 1937
Royal Coat of Arms of the United Kingdom (HM Government).svg
Long title An Act to make provision for a Regency in the event of the Sovereign being on His Accession under the age of eighteen years, and in the event of the incapacity of the Sovereign through illness, and for the performance of certain of the royal functions in the name and on behalf of the Sovereign in certain other events; to repeal the Lords Justices Act 1837; and for purposes connected with the matters aforesaid.
Citation 1937 c. 16
Introduced by Stanley Baldwin [9]
Dates
Royal assent 19 March 1937
Commencement On royal assent
Other legislation
Amended byRegency Act 1943, Regency Act 1953, Succession to the Crown Act 2013
Status: Current legislation
Text of statute as originally enacted

In 1936, George VI (George V's second son) had become King, with his elder daughter, Princess Elizabeth, as heir presumptive. However, Elizabeth was under the age of 18, leading to the need for a new Regency Act.

Rather than pass a specific Regency Act relating to the death or incapacity of George VI only, Parliament passed the Regency Act 1937 (1 Edw. 8 & 1 Geo. 6 c. 16), which provided for the incapacity or minority of all future monarchs. It also repealed the Lords Justices Act 1837, and established in statute the office of Counsellor of State, to be appointed during the monarch's absence abroad, or temporary illness not amounting to complete incapacity.

The Act required that the regent should be the next person in the line of succession who was:

The Counsellors of State were to consist of:

Thus, at the time of the passing of the Act, Prince Henry, Duke of Gloucester would have become Regent in the event that King George VI died while The Princess Elizabeth was still a minor. The current prospective regent under the Act, who would assume the functions of Regent should Queen Elizabeth II become incapacitated, would be her eldest son Charles, Prince of Wales.

Section 4 of the Act prohibits the regent from giving royal assent to a bill to change the line of succession to the British throne or to repeal or alter the Scottish Protestant Religion and Presbyterian Church Act 1707.

Regency Act 1943

Regency Act 1943
Royal Coat of Arms of the United Kingdom (HM Government).svg
Long title An Act to amend the law as to the delegation of royal functions to Counsellors of State.
Citation 1943 c. 42
Introduced by Viscount Simon [10]
Dates
Royal assent 11 November 1943
Commencement On royal assent
Status: Current legislation
Text of statute as originally enacted

This Act (6 & 7 Geo. 6 c. 42) modified the Regency Act 1937 so that counsellors of state who were absent during the Sovereign's absence would not be listed among the appointments. It also declared that the heir-apparent or presumptive to the throne (first in the line of succession) only had to be 18 to be a counsellor.

Regency Act 1953

Regency Act 1953
Royal Coat of Arms of the United Kingdom (HM Government).svg
Long title An Act to provide that, in the event of a Regency becoming necessary under the Regency Act 1937, His Royal Highness the Duke of Edinburgh shall in certain circumstances be the Regent, to provide that the heir apparent or heir presumptive to the Throne shall be deemed for the purposes of that Act to be of full age if he or she has attained the age of eighteen years, to add Her Majesty Queen Elizabeth the Queen Mother to the persons to whom royal functions may be delegated as Counsellors of State, and for purposes connected with the matters aforesaid.
Citation 1953 c. 1
Introduced by Winston Churchill [11]
Dates
Royal assent 19 November 1953
Commencement On royal assent
Status: Current legislation
Text of statute as originally enacted

Most of the provisions of the Regency Act 1953 (2 & 3 Eliz. 2 c. 1) ceased to be applicable as children came of age. The sole provision of the 1953 Act that is still relevant is section 2, which removed the perceived anomaly that a person aged 18 could become a counsellor of state and could, upon accession to the throne, personally discharge the royal functions, but could not act as a regent until 21. [lower-alpha 3]

In 1952 King George VI died and was succeeded by his daughter, Queen Elizabeth II. With her eldest son and heir apparent, Prince Charles, under the age of 18, the Regency Act 1937 would provide for the next person over the age of 21 in the line of succession, the Queen's sister Princess Margaret, to act as regent. However, although a regency was already provided for, Parliament made a new law creating a provision specific to the scenario of the succession to the throne of a son or daughter of Queen Elizabeth II and her husband, Prince Philip, Duke of Edinburgh, while still under the age of 18 years. That provision, which ceased to have any relevance in law once all children of Elizabeth and Philip reached adulthood, was to the effect that Prince Philip, if living, would act as regent in case of an underage succession to the Crown by one of the children born of his marriage to Queen Elizabeth II. Furthermore, if a regency was necessary during Elizabeth II's reign, the Duke of Edinburgh would act as regent if the Queen had no eligible children or grandchildren.

At the bill's second reading, David Maxwell-Fyfe, the Home Secretary, explained:

"The Amendment is confined to the Duke, and accordingly, in the event of the Duke's death, which we all fervently hope will not occur for many years, the Amendment would cease to have effect, and in the circumstances in which provision is made by the Bill for the Duke being the Regent, the Princess Margaret would, if alive, be Regent. This is in no sense an exclusion Bill." [13]

The Act also allowed the Queen's mother, Queen Elizabeth the Queen Mother, to become a Counsellor of State again, a position she had lost on the death of her husband King George VI.

Situations in which the royal functions are transferred to a Regent

According to the Regency Acts 1937 to 1953, presently in force, there is provision for the establishment of a regency either on account of the minority of the monarch or of the absolute incapacity of the Sovereign to discharge the Royal Functions.

Regency in the case of the minority of the Sovereign

According to the Regency Acts in force, if the monarch is under the age of 18 years when he or she succeeds to the Throne, a regency is automatically established, and, until the monarch attains the age of 18 years, the royal functions are discharged by the regent in the name and on behalf of the monarch.

In that case, any oaths or declarations required by statute to be taken by the Sovereign on or after succeeding to the Crown are postponed until the sovereign's personal assumption of the royal functions, and for the purpose of all such enactments regarding oaths and declarations that the new monarch must make upon accession "the date on which the Sovereign attains the age of eighteen years shall be deemed to be the date of His Accession".

Regency in the case of infirmity of mind or body or of unavailability for a definite cause

Unlike any of the preceding Regency Acts, the Regency Act 1937 (which is still in force) established in law a procedure for determining the incapacity of the Sovereign due to infirmity of mind or body or due to the monarch's unavailability for another definite cause.

When a declaration of incapacity is made in accordance with the procedure set out in the Regency Act 1937 a Regency is established and the royal functions are transferred from the Sovereign to a Regent, who discharges them in the name and on behalf of the monarch until a declaration is made in accordance with the said Act to the effect that the monarch's incapacity has ceased.

Power to make the declaration of incapacity and the declaration of cessation of incapacity

According to section 2 of the Regency Act 1937, the people who can make a declaration of incapacity (or a declaration that the incapacity has ended) are the consort of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and the Master of the Rolls. As of October 2018 these positions were held by, respectively, Prince Philip, Duke of Edinburgh, David Gauke, John Bercow, Lord Burnett of Maldon, and Sir Terrence Etherton.

Any declaration of incapacity or of cessation of incapacity needs to be signed by three or more of them. Declarations based on the monarch's unavailability for a definite cause need to be supported by evidence, and declarations attesting the Sovereign's incapacity by reason of infirmity of mind or body need to be supported by evidence including evidence provided by physicians.

A declaration of incapacity or of cessation of incapacity needs to be made to the Privy Council and communicated to the governments of the Dominions.

Incapacity of the Regent

Under the Regency Act 1937, a declaration of incapacity can also be made with respect to the regent. Thus, if the person serving as regent becomes incapable of discharging the royal functions, either on account of an infirmity of mind or body, or because the regent has become, for a definite cause, unavailable to perform the said functions, the same group of people who can make a declaration of incapacity regarding the sovereign (the wife or husband of the monarch, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and the Master of the Rolls) are empowered to make a declaration of incapacity regarding the regent.

The requirements for that declaration of incapacity are the same ones that are valid with regard to a declaration affecting the sovereign: the incapacity of the regent must be attested by evidence; in the case of infirmity that evidence shall include evidence provided by physicians; the declaration needs to be signed by at least three of the people empowered by law; and it needs to be lodged with the Privy Council.

Under section 3, subsection 5, of the Regency Act 1937, when the regent is the object of a declaration of incapacity, he or she ceases to be the regent, as if he or she were dead, and the person next in line capable of discharging the regency becomes regent in his or her place.

When a regent is removed from office by a declaration of incapacity and subsequently the incapacity ceases to exist, the regent can be restored to office by means of a declaration of cessation of incapacity. In that case upon the declaration of cessation of incapacity, a change of regent takes place, with the person who has a lower place in the order of succession ceasing to be the regent, and in his or her stead the person with a higher position in the order of succession, who had only ceased to be regent due to the declaration of incapacity, resuming the office of regent. The requirements for declaration of cessation of incapacity regarding the regent are the same ones that are valid for a declaration of cessation of incapacity regarding the sovereign.

Assumption of office by the Regent: oaths to be taken before the Privy Council

Whenever a regency is established, either on account of incapacity of the sovereign (duly declared in accordance with the procedure prescribed in statute), or on account of the minority of the Sovereign, and also when there is a change of regent, the new "Regent shall, before he acts in or enters upon his office" take the oaths required by the Regency Act, 1937; accordingly, a new regent only enters into the execution of his office by taking the oaths, and therefore cannot discharge any of the royal functions before taking them.

The oaths required to be taken by a new Regent upon his assumption of office are as follows:

I swear that I will be faithful and bear true allegiance to [here insert the name of the Sovereign] his heirs and successors according to law. So help me God.

I swear that I will truly and faithfully execute the office of Regent, and that I will govern according to law, and will, in all things, to the utmost of my power and ability, consult and maintain the safety, honour, and dignity of [here insert the name of the Sovereign] and the welfare of his people. So help me God.

I swear that I will inviolably maintain and preserve in England and in Scotland the Settlement of the true Protestant religion as established by law in England and as established in Scotland by the laws made in Scotland in prosecution of the Claim of Right, and particularly by an Act intituled “An Act for Securing the Protestant Religion and Presbyterian Church Government” and by the Acts passed in the Parliament of both Kingdoms for Union of the two Kingdoms, together with the Government, Worship, Discipline, Rights, and Privileges of the Church of Scotland. So help me God.

The said oaths need to be taken and subscribed by the new Regent before the Privy Council, and the Regency Act, 1937 specifies that "the Privy Council are empowered and required to administer those oaths and to enter them in the Council Books".

Guardianship of the Sovereign during a Regency

Unlike the situations of minor infirmity or of travel abroad that allow for the possible delegation of the royal functions by the monarch to counsellors of state (as authorised by section 6 of the Regency Act 1937), the establishment of a regency carries with it the notion that the sovereign is not fit and able to administer the affairs of his own person, so that he needs a legal guardian. The guardianship of the monarch, however, is not governed by the same ordinary body of laws that regulate the appointment of legal guardians to people in general. Instead of the legal guardian of the Sovereign being appointed by a court based on the recommendations of the social services, the guardianship of the monarch is provided for directly by Regency Act 1937, presently in force.

Because the sovereign in his or her private capacity is not subject to the jurisdiction of the courts, the institution of a regency remains the sole method of placing the person of the sovereign under legal guardianship. And, according to the provisions of the Regency Acts in force, the creation of a regency to discharge the royal functions and the legal guardianship of the monarch go hand in hand: the monarch is only subject to legal guardianship when there is a regency, and always when there is a regency the monarch is placed under legal guardianship.

The legal guardianship of the person of the monarch (with the corresponding power to administer the private property of the sovereign) does not necessarily rest with the regent. However, if the none of the prospective guardians provided for in the statute exist, then, also according to the statute, the regent becomes the guardian of the sovereign. Accordingly, during a regency, the regent is the person invested with the royal authority, that discharges the royal functions on behalf of the monarch. The guardian, on the other hand, has the legal custody of the sovereign (who is either a minor or an incapacitated person) and the duty to care for the monarch's personal well being. The two roles may or may not be combined.

According to section 5 of the Regency Act 1937, [14] if the monarch is under the age of eighteen years and unmarried, then his or her mother, if living, shall have the guardianship of the monarch's person. On the other hand, if the sovereign is married, but is still under the age of eighteen years, or if the sovereign is a married adult, but has been declared incapable for the time being of performing the royal functions, then the wife or husband of the sovereign, if of full age, shall have the guardianship of the person of the monarch. In all other cases except the two situations described above (that is, if the sovereign is unmarried and under the age of eighteen years, but his mother is no longer living; or if the sovereign is married, but the wife or husband is not of full age; or if the sovereign has been declared incapable of performing the royal functions, but does not have a wife or husband), then the regent shall be the legal guardian of the monarch and shall have custody of his or her person, and the property of the sovereign, except any private property which in accordance with the terms of any trust affecting it is to be administered by some other person, shall be administered by the regent.

Current position

Regency

As of 2019, under the provisions of the Regency Acts in force, Prince Charles, Prince of Wales, would act as regent in the event of the incapacity of his mother, Queen Elizabeth II. The next person in the line of succession, the Prince of Wales' elder son Prince William, Duke of Cambridge, would also be able to succeed without necessitating a regency and would be eligible to be regent for his grandmother or his father.

As of 2019, the first person under the age of 18 in the line of succession to the throne is William's son Prince George of Cambridge, who is third in line to the throne after his grandfather and father. If the prince were to succeed to the throne before his 18th birthday on 22 July 2031, his uncle, Prince Harry, Duke of Sussex (the Prince of Wales' younger son), would serve as regent, as George's younger siblings Charlotte and Louis (currently fourth and fifth in line, respectively) would also be minors. In the event that Prince Harry would be unable to serve as regent, the next in line would be his uncle (Prince George's grand-uncle) Prince Andrew, Duke of York, followed by the Duke of York's elder daughter Princess Beatrice of York.

Currently, if Elizabeth II were to be declared incapable of discharging the royal functions, the legal guardianship of the incapacitated monarch would be vested in her husband Prince Philip, Duke of Edinburgh. If, however, the Duke of Edinburgh were to predecease his wife or be otherwise unable to carry out the duties of legal guardian, the guardianship of the Sovereign would then be vested in the sitting Regent.

Prince George of Cambridge, should he ascend to the throne prior to his 18th birthday, is the first person in the present line of succession that would require Regency and Legal Guardianship, until he was 18. According to the Regency Acts as currently in force, should this occur, his legal guardianship would be vested in his mother, Catherine, Duchess of Cambridge. If she were to be unable to carry out the duties of legal guardian, they would then revert to the sitting Regent.

See also

Notes

  1. Text of Minority of Successor to the Crown Act 1751
  2. Text of Minority of Heir to the Crown Act 1765
  3. In fact, this had been intended in 1937. In 1937, when the bill was still in committee, the attorney-general had said:
    there might well arise a case where the heir to the Throne was under 18 years of age and where it would be necessary to have a Regent, but that such Regent would only be a few months older. It would then be rather absurd to appoint as Regent someone only six months older than the King. Consequently ... there should be a minimum difference of three years. [12]

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References

  1. 1 2 3 4 E. B. Pryde (23 February 1996). Handbook of British Chronology. Cambridge University Press. pp. 45–47. ISBN   978-0-521-56350-5.
  2. Geoffrey Holmes, British Politics in the Age of Anne. Revised Edition (London: The Hambledon Press, 1987), p. 84.
  3. Wolfgang Michael, England Under George I. The Beginnings of the Hanoverian Dynasty (London: Macmillan, 1936), pp. 4-5.
  4. Sections 12 and 13 of the Act
  5. Section 14
  6. Section 17
  7. "A Collection of the Public General Statutes Passed in the First and Second Years of the Reign of His Majesty King William the Fourth, 1830, 1831." London: J. Richards, 1834.
  8. "A Collection of the Public General Statutes Passed in the Third and Fourth Year of the Reign of Her Majesty Queen Victoria, 1840." London: Eyre & Spottiswoode (1840), pp. 301–304.
  9. Hansard, House of Commons, 27 January 1937
  10. Hansard, House of Lords, 23 September 1943
  11. Hansard, House of Commons, 5 November 1953.
  12. Hansard, 4 February 1937, column 1829.
  13. Hansard, House of Commons, 11 November 1953
  14. http://www.legislation.gov.uk/ukpga/Edw8and1Geo6/1/16/section/5