King Charles’s cancer: could we be heading for a soft Regency?

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The King’s cancer diagnosis has prompted much press speculation about the prospect of Prince William taking on additional responsibilities during his father’s illness and, possibly, a Regency. Robert Hazell answers some of the most pressing questions about what might happen next.

The announcement from the Palace that the King has cancer prompted a flurry of media requests to the Constitution Unit about what might happen next, constitutionally speaking. What follows are answers to some of the most important constitutional questions raised by the news of the King’s cancer diagnosis, such as, how many Counsellors of State are there? (Spoiler: the Palace don’t seem to know), how is a Regency declared, how might Prince Harry become Regent, and when did we last have a Regency?

What does the announcement mean in practice?

The King will continue to fulfil his essential constitutional functions like granting royal assent to laws, appointing ministers and other senior officials, and holding his weekly audience with the Prime Minister. His absence from public appearances will mean more royal visits being undertaken by other senior royals: Princess Anne, Queen Camilla, Prince William, Prince Edward and his wife Sophie.

We are a long way from triggering the provisions of the Regency Acts. These provide for other royals to act on behalf of the monarch in the event of his incapacity, or absence abroad. In the event of temporary incapacity, two or more Counsellors of State are appointed on a short term basis; whereas permanent incapacity leads to the appointment of a Regent.

Is there a half-way house, a soft Regency?

What if King Charles became seriously infirm, but not so incapacitated that he is incapable of performing the royal functions: could there be a soft Regency? This would leave certain core functions with the sovereign, and delegate everything else. The King alone would signify royal assent to Bills; and the King would continue to make statutory appointments. Much else could be delegated to other members of the royal family, above all Prince William, who could become a sort of de facto Regent.

As Prince Charles did during the reign of Queen Elizabeth II, Prince William could preside at the state opening of parliament and take the lead on Remembrance Sunday and for Trooping the Colour. He already takes investitures. He could take over the diplomatic business of receiving incoming and outgoing ambassadors, and state visits, as Prince Charles did when attending the Commonwealth heads of government meeting in Rwanda in 2022. This had been happening for a while in the latter years of the late Queen’s reign: in 2013 it was the Prince of Wales rather than the Queen who held an audience with the incoming and outgoing heads of MI5.

Are there enough working royals to share the load?

Five years ago there were 15 working royals carrying out public duties. Following the death of Queen Elizabeth, the departure of Prince Harry and Meghan, the disgrace of Prince Andrew, and retirement of Princess Alexandra, the numbers have shrunk to 10. With the Duke of Kent (88), and the Duke (79) and Duchess (77) of Gloucester becoming increasingly elderly, the numbers may soon shrink to seven.

Before his accession King Charles said that he wanted to see a slimmed down royal family; that has happened naturally, and perhaps more than he expected. Last year Princess Anne commented, ‘Well, I think the ‘slimmed down’ was said in a day when there were a few more people around. It doesn’t sound like a good idea from where I’m standing, I would say’. She said this as the hardest working royal, in terms of public appearances: Princess Anne carried out 457 engagements in 2023, just ahead of King Charles, who carried out 425.

What if the King is temporarily incapacitated?

The Regency Act 1937 created the office of Counsellor of State to cover short term absences. If the King cannot undertake his official duties on a temporary basis due to illness, two or more Counsellors of State can be appointed by Letters Patent to act in his place. An example was when Prince Charles (as he then was) and Prince William were asked by Queen Elizabeth to preside at the state opening of parliament in 2022: formally they were appointed as Counsellors of State to enable them to do so. 

Taking its cue from the royal.uk website, the media has widely misreported the number of Counsellors of State as being Queen Camilla and the next four people in the line of succession over the age of 21: Prince William, Prince Harry, Prince Andrew and Princess Beatrice. This omits Princess Anne and Prince Edward, who were also empowered to act as Counsellors of State by the Counsellors of State Act 2022 (which was analysed by Craig Prescott on this blog). They were added to the list since Prince Harry and Prince Andrew are no longer working royals, and Princess Beatrice has never been one. From the formal pool of seven potential Counsellors of State, there are only four who are likely to be chosen: Queen Camilla, Prince William, Princess Anne and Prince Edward.

Counsellors of State are authorised by their Letters Patent to carry out specific functions. These normally include most of the official duties of the Sovereign, for example, attending Privy Council meetings, signing routine documents and receiving the credentials of new ambassadors. However, certain core constitutional functions may not be delegated:

What happens if the King becomes seriously incapacitated?

The Regency Act 1937 also established in law a procedure for determining the incapacity of the sovereign due to infirmity of mind or body. When a declaration of incapacity is made under the Regency Act, a regency is established and the royal functions are transferred from the sovereign to the next in line of succession, namely Prince William the Prince of Wales.

The people who can make a declaration of incapacity are the Sovereign’s spouse, the Lord Chancellor, Lord Chief Justice, Master of the Rolls, and Speaker of the House of Commons. As of February 2024, these are Queen Camilla, Alex Chalk MP, Baroness (Sue) Carr of Walton-on-the-Hill, Geoffrey Vos and Lindsay Hoyle MP. Any declaration of incapacity needs to be signed by three or more of them. Declarations need to be supported by evidence, including medical evidence.

The declaration of incapacity needs to be made to the Privy Council and communicated to the governments of the realms, the 14 other countries where the British monarch is also head of state.

Would William automatically become Regent?

The new Regent must take the oaths required by the Regency Act and cannot discharge any of the royal functions until the oaths have been taken before the Privy Council. In brief the oaths are to bear true allegiance to King Charles; to govern according to law; to consult and maintain the safety and dignity of the King, and the welfare of his people; and to maintain in England and in Scotland the settlement of the Protestant religion as established by law.

What if William loses capacity?

If Prince William himself were to lose capacity, a declaration of incapacity can also be made with respect to the Regent. If the Regent becomes incapable of discharging the royal functions, the same group of signatories are empowered to make a declaration of incapacity, following the same procedure. So long as Prince George, the person next in line of succession, remains under the age of 18, Prince Harry (as the next adult in the line of succession) would become Regent until Prince George reaches the age of majority.

When did we last have a Regency?

In the reign of King George III, when his mental illness returned following the death of his youngest daughter. His eldest son, George the Prince of Wales (later George IV), became Regent for ten years, from 1811 to 1820. There was no standing legislation at the time for the creation of a Regency; the Prince Regent was appointed by an Act of Parliament titled The Care of the King during his Illness etc Act 1811. Because of the King’s incapacity, he could not grant royal assent. Resolutions of both Houses of Parliament directed the Lord Chancellor to prepare letters patent appointing Lords Commissioners to grant royal assent, and to affix the Great Seal to them even without the signature of the monarch.

About the author

Professor Robert Hazell was the founder and first Director of the Constitution Unit. He is the co-editor of The Role of Monarchy in Modern Democracy.