Reigns in Spain and the ‘A’ word (again) in the UK

Robert Morris explains why the abdication of the Spanish King is unlikely to lead to a similar move by Queen Elizabeth II.

The recent announcement of the abdication of King Juan Carlos of Spain in favour of his heir, Felipe, has renewed discussion about abdication in the UK. Indeed, the abdicating King – anxious no doubt to make the best of a not very happy job – is reported as saying: ‘I don’t want my son to grow old waiting like Prince Charles’. Despite substantial demonstrations in favour of a republic, the abdication seems to be proceeding.

Will it happen here? Will Elizabeth II make way for her heir, Prince Charles? The present consensus is that it will not. This is hardly news. But there are two new twists offered on the usual account that it will not happen because the Queen believes she has to serve for the whole of her life.

Religion makes abdication impossible

The first twist is the suggestion by the Daily Telegraph that abdication is actually impossible because, unlike the Spaniards, the Queen has been consecrated in the religious ceremony of the coronation and the British monarchy is therefore ‘a sacerdotal system’. This was not the case with her uncle, Edward VIII, because he left the throne before becoming an anointed ruler as the result of a coronation ceremony. He was, however, undoubtedly King – a fact of law in no way dependent on coronation. This fact may be taken to emphasise that in UK law the sovereign occupies first and foremost a secular public office.

Is that office, nonetheless, also ‘sacerdotal’? The online OED gives two principal meanings of sacerdotal:

1)    Of or belonging to the priests or priesthood; of or relating to a priest; befitting or characteristic of a priest; priestly.

2)    Holding the office of a priest.

None of these meanings describes any of the UK sovereign’s roles or functions. The sovereign may be the ‘Supreme Governor’ of the Church of England but that does not confer any priestly function. Indeed, the Thirty-Nine Articles are perfectly clear on the point; ‘…we give not to our Princes the ministering either of God’s Word, or of the Sacraments…’ [Article 37] The sovereign does not therefore occupy a sacerdotal office in any personal sense and nor, accordingly, can the British monarchy be perceived as a sacerdotal system even by religious believers.

Similarly, although the present sovereign apparently feels an obligation to serve until death, there is no explicit undertaking to this effect required of the sovereign in the coronation service let alone otherwise in law. Insofar as there is any understanding to this effect it is said to rest on an implied commitment by the Queen herself in her coronation broadcast: ‘Throughout all my life and with all my heart I shall strive to be worthy of your trust’. That language falls short of the ironbound commitment attributed to it, and it could not be proof against fresh appreciation of relevant fact or the – no doubt amicably negotiated – will of Parliament.

None of this is to say that abdication is easy or without political and constitutional implications. In Professor Bogdanor’s view: ‘As soon as the monarchy becomes a matter of choice, its usefulness is greatly lessened. For the prime advantage of monarchy is that it makes the position of the head of state automatic and unquestioned, so that it cannot be tarnished by the sticky fingers of politicians. Were abdication possible, the prime minister of the day could put pressure on a monarch who asked inconvenient questions to resign.’ On the other hand, there is probably a sense in which the form and continuation of the UK monarchy is more contingent than it may appear: as Matthew Parris wrote ‘…we are more Elizabethists than monarchists…Though a British king or queen never votes and is never voted for, he or she stands daily for election’.

Regency when the sovereign remains healthy?

The second twist is a suggestion from Robert Johnson, Royal Editor of the Evening Standard. He has proposed that we should resort to a provision in the Regency Act 1937 about the circumstances in which a regent can be appointed. This concerns not physical or mental incapacity but a rather gnomic provision permitting regency where ‘the Sovereign is for some definite cause not available for the performance of’ royal functions. ‘Perhaps it is vague enough’, Robert Johnson speculates ‘to allow the monarch to pass the baton to her heir and effectively retire – thus effecting the smoothest of successions with the minimum of fuss’.

This provision was not in the Bill originally introduced into the Commons but the result of amendment in the Lords. On Second Reading, peers raised a number of hypothetical situations where the sovereign, though fit, might just not be available. Richard I, for example, had been imprisoned (with the Great Seal) on his return from the Crusades, and – analogously – only in 1914 British subjects caught in Germany on the declaration of war risked internment though still entirely fit. In the same way, a sovereign abroad might have been taken ill, recovered but be forbidden for a while to travel. (Later, the position following shipwreck was instanced.) At first, the government tried to fend amendment off on the basis that the examples were too far-fetched, but capitulated in the form of the present catch-all provision. [Hansard, Lords, 10 February, cols 88-99; 16 February, 150-169; and 18 February 1937, col 226.]

On the basis of these discussions alone, it would seem that a wish effectively to retire was not what the legislature intended to encompass. Even if the words are taken simply as they stand, it would take some wrestling with ‘definite cause’ to produce a legally defensible outcome which covered what was in fact retirement. In the end, it would have to be faced that there cannot be any back door route into regency where sovereigns retain their faculties and there are no colourable circumstances that could be brought within the ‘definite cause’ provision.

Conclusion

The Spanish abdication does not, any more than papal and other recent European abdications, make a British abdication more immediately likely. At present, it looks as though the Regency Act does not offer a quick fix for retirement in any circumstances where sovereigns retain their faculties. On the other hand, it has to be said that a pre-World War II act designed to provide a continuing solution short of abdication is foundering on unforeseen facts of enhanced longevity. There was a time when archbishops of Canterbury never retired but this practice (including for bishops) – despite their real sacerdotal properties – has long since been replaced by a more clement rule.

If we are to avoid one gerontocrat being succeeded by another, the time would seem ripe to think again and do what the British are said to be good at – that is, inventing tradition. Any significant change would be unprecedented but would not have to involve exile – the fate in effect for Edward VIII. Once the ground rules were worked out, the royal family and the nation could – as we always do – get used to it remarkably quickly.

About Bob Morris
Honorary Senior Research Fellow, Constitution Unit. Former career civil servant at the Home Office.

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