Bob Morris

The recent consolidation of the Queen’s and the Prince of Wales press offices under the Prince’s former press secretary and a YouGov poll(i) apparently showing warmer feelings towards the Prince’s deputising increasingly for his mother draw attention again to the gradual anticipatory transfer of functions between the Queen and her heir. How constitutionally is all this to be understood?

Abdication – the ‘A’ word

We are firmly told there isn’t going to be one. The Queen swore to serve all her days and she continues to mean it. Some other – lesser? – monarchies use abdication to pass on the throne to mature heirs with yet many years still in front of them(ii) and before the abdicator is senescent. That way the crown may still be held for decades and the appearance of continuity – thought to be one of monarchy’s advantages – preserved.

In such cases, abdication has been a response to generational arithmetic which, if its course is not revisited, could with modern longevity result in a succession of gerontocrats.(iii) Thus without an ‘A’ event and, just taking an example almost at random, it is possible to imagine a monarch plausibly likely to survive until a few years past their centenary to be succeeded by an octogenarian ruling for a decade or so to be succeeded in turn by a mere sexagenarian pushing 70 themselves succeeded by a similar aged heir.

Vernon Bogdanor is not moved by the arithmetic argument: ‘…the notion of abdications strikes at the heart of the British monarchy. For it implies that monarchy is a vocation that one can choose or abandon at will.//As soon as the monarchy becomes a matter of choice, its usefulness is greatly lessened’.(iv) But the first point naturally raises the question whether monarchy is not in the end a public office like any other public office. If so, then the view of the office holder would normally be subordinate to the interests of good government – and not entirely without regard either to the demands upon the incumbent in their old age. The second point – utility – raises just what, constitutionally, monarchy nowadays does – a point dealt with further below.

Regency

The law is clear: there can be a regency only when it can be authoritatively certified that one is necessary because of the mental or bodily infirmity of the sovereign (or for some other definite cause). The Regent has to be able to satisfy all the normal requirements for succession (Including not being a Roman Catholic but being in communion with the Church of England) and swear the relevant oaths. Prohibited from assenting to Bills changing the succession or reneging on the constitutional guarantee to the Church of Scotland, the Regent otherwise assumes all the sovereign’s functions.

Happily, the statutory criteria for a regency cannot at present be satisfied. There may come such a day but, without mental infirmity for example, bodily infirmity would have to be quite extreme to render the sovereign ‘incapable for the time being of performing the royal functions’ – the key statutory test. At what point, for example, would the sovereign become incapable of signifying assent – what sufficient minimal physical gesture, and as assessed by whom – to statutes, orders in council, church and other appointments recommended by ministers?

Short of becoming regent, an heir has no ‘hard’ constitutional position except to represent the sovereign for purposes that do not require the exercise of powers only the sovereign can exercise.(v) In a modern ‘welfare’ monarchy, this leaves quite a lot of room in the case of general ‘public duties’. For example, there is no reason why the heir could not read the sovereign’s speech at fresh Parliamentary sessions. Similarly, the heir could represent the sovereign at a range of public events varying from the annual review of the household regiments to attending the annual assembly of the Church of Scotland or leading on inward and outward state visits. The heir has already substituted for the sovereign at the biennial Commonwealth Heads of Government Meeting.

Present position

What seems to be happening is a movement to co-reigning where the sovereign is closely and explicitly shadowed by the heir but as the junior partner. The talk of an imminent ‘soft’ regency that is sometimes heard seems misplaced because no transfer of constitutional power is involved. There are ancient precedents for co-reigning monarchs but in very different circumstances: the aim seems mostly to have been to signify a preferred succession in turbulent times rather to arrange any real, immediate transfer of authority. Nonetheless, what is on hand does seem to be more a species of co-working than any other recognisable model.

Does any of this matter?

Were the sovereign still also the chief executive, then wooliness would be best avoided. Situations where there could be doubt whether an ageing sovereign could be relied upon to rein in a reckless heir’s dabbling in military matters or plundering the treasury cannot now arise. This is because the monarch is no longer the chief executive of the state: the modern head of state function in the UK is nowadays best understood as the hereditary president of a de facto republic.

The former key constitutional functions of granting Parliamentary dissolutions and selecting prime ministers no longer exist: the first was removed by the Fixed-term Parliaments Act 2011 (which substituted a statutory procedure) and the second by agreed procedures for government formation set out in a Cabinet Office Manual. The royal assent to Bills has long been a routine formality and, it has recently been argued, is ripe for statutory regulation.(vi) Otherwise no constitutional or executive function is exercised except on the advice of responsible ministers. Nonetheless, as Vernon Bogdanor points out, there are certainly important monarchical functions left, chief among them being the relationship with the prime minister, head of state in fifteen other Commonwealth ‘realms’ and headship of the Commonwealth itself. In addition, the crown is one of the few institutions operating throughout the UK. Though the longer term range of the role must be in doubt, the sovereign remains also involved in forms of UK-wide civil religion.(vii) The ‘welfare’ monarchy may beneficially continue to draw attention to causes that otherwise might struggle to obtain recognition. Helping an ageing sovereign more closely has advantages for both the sovereign and the heir, and co-working prepare the way more acceptably for accession – even to the point perhaps of smoothing passage to headship of the Commonwealth for accession to which there are, as yet, no agreed rules.

It seems, therefore, that the nation can expect a period of experimentation with co-working where, perhaps opportunistically, roles are transferred in relation primarily to public duties. One outcome should be a better prepared heir. Another – when that heir succeeds – might be a fresh look at the merits of resort in the long run to abdication as a part of succession planning.

Footnotes
(i) ‘Feet up, Ma’am, Let Charles do the work, Sunday Times 26 January 2014.
(ii) Thirty-two years each in the case of Queens Juliana and Beatrix of the Netherlands.
(iii) See Robert Hazell’s post – ‘Shouldn’t we allow our monarchs to abdicate, like the Dutch’ – 19 February 2013.
(iv) Daily Telegraph 20 January 2014.
(v) Brazier R. (1995) ‘The constitutional position of the Prince of Wales’, Public Law, 401-416, discusses the then minimal substance, a discussion taken further in Evans v Information Commissioner [2012] UKUT 313 (AAC). See also Perry A. (2013) ‘Constitutional Conventions and the Prince of Wales’, Modern Law Review, 1119-1128.
(vi) Brazier R. (2013) ‘Royal Assent to legislation’, Law Quarterly Review, 184-204.
(vii) For a recent discussion, see Bonney N. (2013) Monarchy, Religion and the State: Civil religion in the United Kingdom, Canada, Australia and the Commonwealth (Manchester, Manchester UP).