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Published online by Cambridge University Press: 07 July 2005
The British monarch has legal duties to perform, as well as ceremonial and representative functions to discharge. For example, the monarch’s assent is legally required before a Bill or an Order in Council can pass into law; some appointments only take effect when they are formally approved by the monarch, which is sometimes signified by the Queen’s personal signature, the royal sign manual, or at others by personal delivery by the monarch of seals of office. Some types of document require as a matter of law the affixing of the Great Seal, which can usually be done only by virtue of a warrant under the royal sign manual: examples include royal proclamations (say to dissolve Parliament), or Letters Patent (say to confer a peerage or to ratify a treaty). Because the monarch is part of the legal machinery of government it is essential that the monarch is always available to function as such; but because a monarch is only human there will be times when, because of absence or illness, this is impossible.
I am very grateful to Professor Sir David Williams for reading an earlier draft.
1 The Constitutional History of Modern Britain since 1485, 8th ed. (London 1966), p. 376Google Scholar.
2 King George VI: His Life and Reign (London 1958)Google Scholar, Appendix A, “A Regent and Counsellors of State”.
3 On that question see the authorities cited in Hibbert, Christopher, George III: A Personal History (London 1998), p. 267Google Scholar, n.
4 Keir, Constitutional History, p. 377.
5 Erskine May, Parliamentary Practice, 21st ed. (London 1989), p. 59.
6 Royal assent has not been signified in person in the House of Lords by a monarch since Queen Victoria on 12 August 1854: Erskine May, Parliamentary Practice, p. 529.
7 33 Henry VIII, c. 21; see also the Great Seal Act 1884, ss. 2(1), 4, Royal Assent Act 1967, s. 1(1).
8 The Law and Custom of the Constitution, 5th ed., by Gwyer, Maurice (Oxford 1922), i, p. 334Google Scholar.
9 Costin, W.C., The Law and Working of the Constitution (London 1952), ii, pp. 154-9Google Scholar; Erskine May, Parliamentary Practice, pp. 59-60. Briggs, Asa, The Age of Improvement (London 1959), pp. 86–87Google Scholar notes the view of Charles James Fox that, given the King's complete incapacity, he was legally dead, so that the Prince of Wales should succeed to the throne.
10 Hibbert, George III, pp. 272-274, 292-293.
11 Anson, Law and Custom, p. 335; Herbert Morrison, Home Secretary, on second reading of the Regency Bill 1943, HC Deb. vol. 392 col. 1248 (22 September 1943).
12 Wheeler-Bennett, King George VI, p. 810; Rose, Kenneth, King George V (London 1983), pp. 356–357Google Scholar.
13 Rose, King George V, p. 402. After several minutes two marks were made on the paper that could be read as “GR”. The Counsellors were the Queen and the four princes: Zeigler, Philip, King Edward VIII (London 1990), p. 240Google Scholar.
14 The Regency Act 1937 was relied on for the appointment of Counsellors in October 1951 during the King's illness: Bradford, Sarah, King George VI (London 1989), p. 455Google Scholar. No common-law power to appoint Counsellors of State survives that Act because that power must be taken to have been impliedly abrogated by the 1937 Act: Attorney-General v. De Keyser's Royal Hotel Ltd. [1920] A.C. 508.
15 Thus Edward VIII's abdication was effective at the moment he gave royal assent to His Majesty's Declaration of Abdication Act 1936: see s. 1(1).
16 A person is disentitled if he or she does not satisfy the religious tests required by law: Bill of Rights 1689, Act of Settlement 1701, ss. 2, 3, Accession Declaration Act 1910, s. 1 and Schedule.
17 Calvin's Case (1608) 7 Co. Rep. 1a at 10b.
18 Ibid.
19 Ibid.; Duchy of Lancaster Case (1561) 1 Plowd. 212; Willion v. Berkley (1561) 1 Plowd. 223 at 244.
20 Wade, E.C.S., “Regency Act 1937” (1937) 1 M.L.R. 66Google Scholar.
21 See the account given by the Home Secretary, Herbert Morrison, on the second reading of the Regency Bill 1943, HC Deb. vol. 392 col. 1250 (22 September 1943). Viscount Simmonds L.C. said during the passage of the 1953 Regency Bill that at common law “[t]he Sovereign attains full age on reaching eighteen years …”: HL Deb. vol. 184 col. 302 (17 November 1953). Possibly he meant that, from that age, monarchs had reigned without Regents.
22 Keir, Constitutional History, p. 376.
23 Wheeler-Bennett, King George VI, p. 810.
24 Herbert Morrison, note 21 above, col. 1248.
25 Wheeler-Bennet, King George VI, p. 811-812.
26 For the text, see Wheeler-Bennett, King George VI, p. 811, and the summary of it in the preamble to the Regency Act 1937.
27 For a brief statute note, see E.C.S. Wade, “Regency Act 1937”.
28 1937 Act, s. 6(2).
29 Section 1(1).
30 Family Law Reform Act 1969, s. 1(1).
31 1937 Act, ss. 3(2), 6(2).
32 An exception was subsequently made for the heir apparent or presumptive.
33 An heir apparent is an heir, such as an eldest son, whose right to succeed cannot be defeated by the birth of anyone having a better right to succeed. An heir presumptive is an heir, such as a daughter who is the eldest child, whose right to succeed could be defeated by the subsequent birth of someone with a better right, such as a son.
34 Pimlott, Ben, The Queen: A Biography of Elizabeth II (London 1996), pp. 70–71Google Scholar. Lord Simon L.C. accepted that the then law and common sense did not coincide.
35 The reasons were rehearsed in a royal message to Parliament: see HC Deb. vol. 392 cols. 263-264 (22 September 1943).
36 The age requirement for a Regent was not altered until 1953.
37 Regency Act 1943, s. 1.
38 Regency Act 1937, s. 1(1), 3(1), 5(c).
39 C. D’Olivier Farran, “The Regency Act 1953” (1954) 17 M.L.R. 146, 146-147.
40 Queen Elizabeth had qualified as “… the wife … of the Sovereign …”: 1937 Act, s. 6(2).
41 HC Deb. vol. 520 col. 951 (11 November 1953) (second reading of the Regency Bill).
42 This was enacted as the Regency Act 1953, s. 1(1), (2). Section 1(2) referred to “… the Duke of Edinburgh, if living, …”, two of the most otiose words to appear in a statute.
43 HC Deb. vol. 520 col. 992 (11 November 1953).
44 Ibid., col. 996.
45 Regency Act 1953, s. 3.
46 Ibid., s. 2.
47 Such an heir could act as a Counsellor of State from the age of 18 under the 1943 Act.
48 Wheeler-Bennett, King George VI, pp. 809-810, 815-816. He writes only briefly about a Regency and at greater length about Counsellors of State, perhaps reflecting the greater practical importance of Counsellors up until that time.
49 The Act uses the word Sovereign for the monarch for the time being.
50 1937 Act, ss. 1, 2.
51 The Regent in that case would be the Earl of Wessex. If the gatecrashing of Prince William's 21st birthday at Windsor Castle in 2003 by a “comedy terrorist” had actually been achieved by a real terrorist who was able to murder all members of the royal family present, the absent Earl of Wessex (7th in the line of succession) would have succeeded to the throne.
52 1937 Act, s. 1(1).
53 Ibid.
54 1937 Act, s. 8(2).
55 The new Sovereign thereby professes Protestantism and swears to uphold the enactments which secure the Protestant succession to the throne.
56 1937 Act, s. 1(2).
57 Save for the oaths which are required by law at a coronation.
58 1937 Act, s. 5, “unless Parliament otherwise determines” (ibid.)—more otiose words.
59 That is, aged 21 or over: the Family Law Reform Act 1969, s. 1(4) and Schedule 2 exempted the Regency Acts from the general reduction of the age of majority to 18.
60 As he or she would be if such a Sovereign were declared incapable of performing the royal functions: 1937 Act, s. 5(b).
61 If a minor Sovereign were a widow or widower he or she would be unmarried and, if his or her mother were dead, the Regent would be guardian.
62 Section 1 of the Regency Act 1953 is now spent. Under it the Duke of Edinburgh would have been Regent for any child of the Queen's and of his who succeeded while under 18. And it provides that any Regent during the Queen's reign would have been the Duke of Edinburgh until a child or grandchild of the Queen and the Duke could be Regent under the 1937 Act. There are now many children and grandchildren aged over 21.
63 Regency Act 1953, s. 2.
64 See note 59 above.
65 If a Regency were required because of a Sovereign's illness, and the heir were aged under 18, the Regent would be the next in line who (among other things) was aged over 21.
66 And that of the Sovereign not being available, a contingency to be dealt with below.
67 Bogdanor, Vernon, The Monarchy and the Constitution (Oxford 1995), p. 47Google Scholar.
68 Marginal notes can occasionally be used as part of an Act to help interpretation: D.P.P. v. Chandler [1971] A.C. 1 at 28.
69 1937 Act, s. 2(1).
70 Ibid.
71 1937 Act, s. 6(1).
72 Mental Health Act 1983, Part II. The Sovereign's person is said to be inviolable, and is immune at common law from civil and criminal actions: could a Sovereign be detained under this legislation.
73 Presumably blindness need not be a bar either.
74 Section 8(2), my italic.
75 The requirement of considering the evidence of physicians did not appear in the Regency Bill as first introduced into Parliament. It was added on a Government motion during its passage.
76 See de Smith, S.A. and Brazier, R., Constitutional and Administrative Law, 8th ed. (London 1998), pp. 72–73Google Scholar.
77 The principle of necessity in constitutional matters was rejected by the Judicial Committee of the Privy Council as applied by the Rhodesian Appellate Division following that colony's unlawful declaration of independence: Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645.
78 1937 Act, s. 6(1).
79 At least, for an absence from the United Kingdom.
80 Sir John Simon at HC Deb. vol. 321 cols. 107-111 (1 March 1937).
81 When someone managed to get into Prince William's 21st birthday party (see note 51 above), and when a newspaper reporter obtained a job as a footman at Buckingham Palace and published information and photographs obtained in it. The following year a protestor managed to reach an outside ledge next to the balcony of Buckingham Palace.
82 Section 20 permits a senior Minister of the Crown to make emergency regulations (in lieu of an Order in Council) if satisfied that it would not be possible, without serious delay, to arrange for an Order in Council under the Act.
83 Robert Blackburn, “The Royal Assent to Legislation and a Monarch's Fundamental Human Rights” [2003] P.L. 205.
84 Ibid., p. 207.
85 A point acknowledged by Blackburn.
86 1937 Act, s. 3(1).
87 The 1937 Act, s. 4(1) refers to the Regent entering “upon his office”.
88 1937 Act, s. 3(2).
89 The first 40 or so are conveniently listed in Whitaker's Almanack.
90 Occasionally a residence requirement had been imposed in earlier regency legislation, e.g. the Regency Act 1910, s. 5 (Queen Mary would have ceased to be Regent if she had ceased to reside in the United Kingdom).
91 1937 Act, s. 3(2).
92 Whether there should remain religious tests for the monarch is a separate question. For the arguments see the Fabian Society, The Future of the Monarchy (London 2003)Google Scholar, chapter 5.
93 1937 Act, s. 3(3), provided that the new Regent is under no other disqualification under s. 3(2).
94 As noted, no declaration is necessary in the case of a monarch's minority: the Regent is put into office by operation of law: 1937 Act, s. 1(1).
95 1937 Act, s. 2(1).
96 That designation refers to no more than the Lord Chancellor's equitable jurisdiction in the Court of Chancery.
97 HL Bill 30 (2003-2004).
98 HC Bill 18 (2004-2005).
99 If the Prince of Wales had succeeded while unmarried the number in the class would have fallen to four.
100 The House of Lords has been recommended to elect a Lord Speaker to succeed to the Lord Chancellor's presiding duties in the House: see Report of the Select Committee on the Speakership of the House of Lords (HL 199 (2002-2003)).
101 1937 Act, s. 2(1).
102 Ibid.
103 The Act does not require evidence to be given under oath.
104 Unlike, say, the Speaker's certificate given under the Parliament Act 1911, s. 3.
105 1937 Act, s. 2(1).
106 Ibid.
107 1937 Act, s. 4(2).
108 Under the 1937 Act, s. 3(2).
109 Ibid., s. 3(4).
110 Ibid., s. 3(5).
111 Ibid.
112 1937 Act, s. 2(2). The words “and the Government of India” which ended that subsection were repealed by the Statute Law (Repeals) Act 1995, s. 1 and Schedule 1.
113 All the notables, incidentally, are likely to be Privy Counsellors.
114 Partially defined in the 1937 Act, s. 8(2).
115 1937 Act, s. 2(1).
116 Some Regency Acts prohibited other matters as well. For example, the Lords Justices Act 1837 (which provided for a panel of notables to act for Queen Victoria's successor if he or she were out of the country at the time of the accession) denied the Lords Justices any power to make peers or to dissolve Parliament. That Act was only repealed 100 years later: Regency Act 1937, s. 7.
117 As a result of the Regency Act 1953.
118 Parliament's life was extended beyond the maximum term during both world wars with all-party agreement.
119 Article I.
120 Article XIX, section 5.
121 Article XIX, section 3.
122 1937 Act, s. 4(1) and Schedule.
123 Accession Declaration Act 1910, s. 1 and Schedule; Coronation Oath Act 1689.
124 In 1811 the Prince Regent took his oaths before 90 or so Privy Counsellors: David, Saul, Prince of Pleasure: The Prince of Wales and the Making of the Regency (London 1998), pp. 318–319Google Scholar.
125 The Regent could well be the heir and successor.
126 1937 Act, s. 4(1) and Schedule.
127 Wheeler-Bennett, King George VI, pp. 810-815.
128 The short title of the Act casts no light on what degree of illness is needed: it refers to “the performance of certain functions … in certain other events” (i.e., other than those requiring a Regency); the preamble merely refers to “certain other events”.
129 Wheeler-Bennett, King George VI, pp. 789, 798.
130 The second operation was more elective than the first and was carried out at a time when few royal functions had to be performed.
131 1937 Act, s. 6(1).
132 A visit in any part of the British Islands outside the United Kingdom, such as to the Channel Islands, would constitute such an absence: Interpretation Act 1978, s. 5 and Schedule 1.
133 1937 Act, s. 6(1).
134 Ibid., s. 6(4).
135 Ibid., s. 6(2), as substituted by the Regency Act 1943, s. 1, Regency Act 1953, s. 3. The mandatory nature of s. 6(2) is reinforced by the 1953 Act, s. 3: it speaks of the persons whom that provision “requires” to be Counsellors of State.
136 1937 Act, s. 6(2).
137 Herbert Morrison, second reading of the Regency Bill 1943, HC Deb. vol. 392 col. 1249 (22 September 1943).
138 The Imperial Conference had agreed in 1930 that in future Counsellors should only be drawn from the royal family: Bogdanor, Monarchy and the Constitution, p. 47.
139 1937 Act, s. 6(2A), as substituted by the Regency Act 1943, s. 1.
140 Wheeler-Bennett, King George VI, p. 812.
141 Whether the law permits one Counsellor to act alone will be considered shortly. Why was Lord Lascelles not exempted in 1944 when he was a prisoner of war in Germany? The King was to visit the Allied armies in Italy, and Lascelles was simply not appointed, apparently because he was no longer domiciled in the UK Lord Jowitt L.C. later acknowledged that he should have been included, as mere absence does not affect domicile: Wheeler-Bennett, King George VI, p. 812.
142 He qualified on his 21st birthday in 2003, and thereby displaced the Princess Royal who had served before.
143 Queen Elizabeth qualified as the wife of the King, and after his death by virtue of the Regency Act 1953, s. 3. From 1953 to 2002, therefore, the pool consisted of six Counsellors of State.
144 1937 Act, s. 3(2).
145 “It might have been designed to cause the least possible effort to a sick man, …” Wheeler-Bennett, King George VI, p. 813.
146 1937 Act, s. 6(1).
147 Ibid.
148 Powers of Attorney Act 1971, s. 1.
149 Re Great Southern Mining Co. (1883) 48 L.T. 11.
150 Unusually the Princess Royal conducted an investiture in 2004.
151 My italics.
152 HC Deb. vol. 520 cols. 960-964, 1148-1149 (12 November 1953).
153 Ibid., cols. 1149-1152.
154 Revocation is the first of three events which discharge Counsellors and which are provided for in the Regency Act 1937.
155 Ibid., s. 6(5).
156 Ibid., s. 6(1).
157 Ibid., s. 6(5).
158 Ibid., s. 4(1).
159 Ibid., s. 2(1).
160 Ibid., s. 6(5).
161 The singular is used in the Regency Act 1943, s. 1.
162 Op. cit., p. 813, note.
163 de Smith and Brazier, Constitutional and Administrative Law, p. 132.
164 Sir David Maxwell-Fyfe at 520 HC Debs. 996 (11 November 1953).
165 Bogdanor, Monarchy and the Constitution, pp. 46-50, 54.
166 Keir, Constitutional History, pp. 222-229.
167 1937 Act, s. 6(1). Such instructions “may be conveyed by telegraph” (ibid.). In 1966 the request and assent for the dissolution of that year were contained in letters exchanged directly between the Prime Minister and the Queen who was on a Caribbean tour: the Counsellors were not involved: Wilson, Harold, The Labour Government 1964-1970: A Personal Record (London 1971), p. 215Google Scholar. Before the 1951 General Election George VI gave express instructions to the Counsellors to prorogue Parliament, although the King completed all the formalities himself for the actual dissolution: Wheeler-Bennett, King George VI, p. 794.
168 1937 Act, s. 6(1).
169 Exceptions to that proposition include peerages for members of the royal family and for former Prime Ministers: Rodney Brazier, Constitutional Practice, 3rd ed. (Oxford 1999), p. 240.
170 1937 Act, s. 6(1).
171 Section 8(2).
172 Quoted in Bogdanor, Monarchy and the Constitution, p. 49.
173 Ibid.
174 Viscount Simon L.C., second reading of the Regency Bill 1943, HL Deb. vol. 129 col. 165 (12 October 1943).
175 Her Government was considering necessary steps for a Regency during Victoria's terminal illness, but her death vitiated the need: Packard, Jerrold M., Farewell in Splendour: The Death of Queen Victoria and Her Age (Stroud 2000), pp. 104–105Google Scholar.
176 Given that such a scheme might fall to be implemented when Prince Charles was King, the appointment of Chief Counsellor or Regent should be possible from a pool of candidates in the line of succession, so that, e.g., Prince William might act for his father as King.