Two recent announcements – the Japanese government’s agreement to the Emperor’s wish to abdicate and Prince Philip’s retirement from public life, both on grounds of advancing age – highlight the fact that there is no continuing provision for abdication in UK law. Bob Morris considers the implications of this and suggests that there may be a case for change.

The Japanese government has agreed to the request of the current Emperor of Japan, Akihito, to abdicate on grounds of age and growing infirmity – he is now 84 years old. Prince Philip, 96 this year, announced on 4 May that he would be withdrawing from public life later this year on grounds not dissimilar to those of the Emperor. What are the implications, if any, for the United Kingdom monarchy?

Abdication – background

The problem for Japan is that Japanese law does not allow for abdication. The last abdication took place 200 years ago and there are no precedents for how a retired Emperor should be styled or otherwise accommodated in the political system. Moreover, revisiting the succession rules was likely also to come up against their continuing ban on female succession when male only succession has prevailed for 2,600 years. A Commission study of the issues reported on 14 April recommending a one-off law for Akihito alone – he would be given the title of ‘Grand Emperor’ – rather than a continuing provision. The gender issue, even though there is a shortage of male heirs, was ducked.

In continental Europe the experience is more varied. Dutch Queens from Queen Wilhelmina in 1948 have abdicated at around 70 – Queen Beatrix most recently at 75 in 2013 – in ways which permit their heirs to grow their families in relative freedom and privacy before taking on full public duties in maturity. (The current King Willem-Alexander succeeded at age 46.) There have been abdications in Spain, Belgium and Luxembourg. Particularly notable was the retirement of Pope Benedict in 2013. There have not been age-based abdications in Scandinavia where, so far, only two sovereigns (Norwegian kings) have exceeded 90 on death.

The position in the UK

There is no continuing provision for abdication in UK law. Further, the circumstances of the last abdication – that of Edward VIII in 1936 – continue to be of painful memory in the House of Windsor. As is well known, Queen Elizabeth II has repeatedly declared her intention of serving for the whole of her life. Now herself 91, the fact of her husband’s ‘retirement‘ at nearly 96 raises the question what sort of withdrawal (partial or otherwise) might be appropriate for her when she reaches a similar age retaining her faculties but experiencing at least the physical frailties of advanced old age.

The present law offers two possible routes: regency and abdication. However, neither route is entirely straightforward. It has also to be borne in mind at all times that the UK sovereign is simultaneously head of state in fifteen other Commonwealth countries, known as the ‘realms’. For both routes the appointment of a regent or succession of an heir in such exceptional circumstances would require acceptance in each of the fifteen realms in order to ensure that they all have the same sovereign. A number of the realms would need to legislate – a particular difficulty in federal systems such as Canada and Australia.

It is possible, of course, that abdication particularly might encourage some realms to become republics. However, as Buckingham Palace has previously made clear, that is and always has been a matter for the realms concerned. Its avoidance cannot, therefore, be an object of UK policy or the prospect therefore of an impediment to responding to a personal need.

Under the Regency Acts 1937–1953, a regent may be appointed – other than in the case of a minority – only where it is certified that, including on the evidence of physicians, ‘the sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions’. The declaration of incapacity must be supported by medical evidence and signed by three or more of the consort of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice and the Master of the Rolls. The bar has deliberately been set very high. Granted what is visible about their condition, neither the Emperor nor Prince Philip could pass the test. It is also the essence of the concept of regency that it should be a temporary not a permanent expedient.

This leaves only abdication as it is presently understood for the departure of a reigning sovereign on grounds of frailty of age rather than actual incapacity. In other words, existing UK law makes no provision for the circumstances of the Emperor and Prince Philip: the real issue is not abdication but simply retirement. It is only because of greater personal longevity that retirement has emerged to confront a legal environment which has assumed monarchs would die in office. The Dutch monarchy has dealt with the issue by in effect recognising a kind of therapeutic abdication as acceptable.

If the Queen achieves the age of her mother (101), the Prince of Wales (68) might not succeed until aged almost 80; and if he lived to a similar age, his heir, the Duke of Cambridge (now 34) not until 68. It is very doubtful whether permitting such a gerontocratic succession can be in the public let alone the private and personal interests of the people involved. It is partly in the face of this arithmetic that some have favoured ‘skipping’ a generation in the succession. But this would be a miserable reward for the Prince of Wales who has been diligent in his public duties and imaginative in his instigation and support for charities – effort for which his father has been rightly praised.

We remain some way off the Dutch solution in the UK. Not only is there the awkward memory of 1936, but we alone of European monarchies still also anoint our sovereigns to signify the conferment of God’s grace upon their reign. While other monarchies, for example in Scandinavia, require their sovereigns to be members of the state churches, none still anoints. In the Netherlands there is not even a constitutional requirement to belong to a particular religious denomination – a fact that may have made therapeutic abdication easier to contemplate.

The UK may be different from others in religious practices but it is not clear that those practices necessarily require lifelong service. The UK sovereign becomes monarch immediately on accession and the functions are not conferred by coronation and anointment. Nor does the UK sovereign by virtue of headship of the Church of England occupy any sacerdotal office. In other words, the UK sovereign occupies what is essentially a public office – august no doubt but still a public office. When even the most senior judges (and bishops) have to retire at age 70, it is not clear – even without the example of Pope Benedict – why retirement (however formally described) should not be permitted to the sovereign. No doubt there are still those who in their minds invest the office with some sacral significance or believe that permitting retirement would somehow demean the office and its significance: the Dutch example suggests the contrary.

Conclusion

In the purely legal sense, the UK monarchy is stuck in a position which permits insufficient flexibility to recognise degrees of personal frailty short of incapacity as grounds for permitting withdrawal from monarchical duties. The monarchy has so far responded by sharing out the Queen’s more routine functions amongst her closer family. While that may do much to alleviate the burden, it is a good way short of actual retirement. It has to be asked whether the present law is sufficiently responsive to the cost exacted from a sovereign who has discharged crowded public duties for so long and in so exemplary a fashion. No-one could conceivably take the view that honourable retirement should be withheld should the sovereign wish it.

Prince Philip’s retirement suggests the need for some positive and clement thought for his spouse as she comes to match his present age. In response to growing longevity, abdication appears to becoming more common even in religious circles. For some time now, Archbishops of Canterbury have not been expected to hold their office until death. Even in the Papal monarchical theocracy there is the example of Pope Benedict’s retirement which suggests that religious scruples should not stand in the way of human needs.

Part of the difficulty is the Queen’s own extraordinary dedication and lifelong commitment to public service, which makes it difficult to initiate any public debate about the possibility of abdication without seeming presumptuous and disrespectful. But perhaps Emperor Akihito should be seen as offering a way forward for all monarchies?

About the author

Dr Bob Morris is a former Home Office career civil servant and a member of honorary staff at the Constitution Unit. At the Unit, Bob has been involved with a variety of interests, and has latterly tended to lead on royal issues.