The Emperor of Japan, Prince Philip and the ‘a’ word

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 19371953, 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.

The Easter Act 1928: a date with history

The Easter Act 1928 sets the date of Easter as the first Sunday after the second Saturday in April. However, the commencement order to bring it into force has never been passed. Kasim Khorasanee considers the age-old dispute over the date of Easter – and its place in the debate over the role of Christianity in British life.

Easter, the celebration of the resurrection of Jesus Christ, is perhaps the most important date in the Christian calendar. However, disagreement over when to mark it dates back to the earliest years of Christianity. Originally celebrated to coincide with Passover on the 14th day of Nisan in the Jewish calendar, dispute arose when certain churches moved to celebrate it on the following Sunday.

The separation from the Jewish calendar was endorsed by the First Council of Nicea in 325 A.D. In 1582 A.D. a further split occurred when the Roman Catholic and Protestant churches adopted the Gregorian calendar to improve the accuracy of the Easter date. The Orthodox churches maintained the older calculations relying on the Julian calendar. This distinction between the churches remains to this day and is reflected in other important dates, such as the celebration of Christmas.

The League of Nations and passage of the Easter Act 1928

The lunar calculations underlying the timing of Easter cause it to ‘float’ relative to the calendar date. For this reason the Protestant and Roman Catholic celebration of Easter can fall any time between 22 March and 25 April. This variation was identified as ripe for reform by the ‘Advisory and Technical Committee for Communications and Transit’ of the League of Nations. (Other issues on the Committee’s agenda included deciding whether a year should have twelve or thirteen months!) Representatives of the Roman Catholic, Orthodox, and Anglican churches joined the committee, and a report issued in 1926 endorsed stabilising the date of Easter on the Sunday after the second Saturday in April. This proposal, supported by the Archbishop of Canterbury, was carried into UK law in the form of the Easter Act 1928.

However, commencement of the Easter Act was left subject to the passage of a statutory instrument through the affirmative procedure. This procedure requires both chambers of parliament to vote on a commencement order to bring the Easter Act into force. The Easter Act also specified that before bringing any such vote, ‘…regard shall be had to any opinion officially expressed by any Church or other Christian body.’ At present the Easter Act remains on the statute books, awaiting a commencement order to bring it into force.

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The Queen at 90: the changing role of the monarchy, and future challenges

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To mark the celebrations of the Queen’s 90th birthday the Constitution Unit has published a new report that discusses the formal powers of the monarchy, and its wider role and functions. The report concludes by looking ahead to what further changes can be expected in the coming decades. It is summarised here by its authors, Robert Hazell and Bob Morris.

This week the Constitution Unit has published a report to mark the celebrations for the Queen’s 90th birthday, which discusses the formal powers of the monarchy, and its wider role and functions. The report also helps to set the scene for two new projects on the monarchy: the first, led by Bob Morris, is on the next accession and coronation, and the second, led by Robert Hazell, is to be a comparative study of the other monarchies of western Europe.

The changing role of the monarchy

0806161The report records how much the constitutional powers of the monarch have changed during the Queen’s reign, and her lifetime. All the important prerogative powers remaining in the hands of the monarch have been removed or severely restricted. The most important of the personal prerogatives are the power to appoint the Prime Minister; to summon and dissolve parliament; and to give royal assent to bills. We found that in exercising each of these powers, the monarch no longer has any effective discretion:

  • The constitutional conventions about the appointment of the Prime Minister have been codified in the Cabinet Manual, which explains that it is for the parties in parliament to determine who is best placed to command the confidence of the House of Commons, and communicate that clearly to the sovereign.
  • The prerogative power of dissolution was abolished by the Fixed-term Parliaments Act 2011. Parliament is now dissolved automatically after five years, or earlier if two thirds of MPs vote for an early election, or the government loses a no confidence motion. The power for the Prime Minister to ask the Queen for an early election has gone.
  • Royal assent to a bill has not been refused since 1707. It would only be withheld now (as then) on the advice of ministers.  That might happen with a minority government which could not otherwise prevent the passage of legislation against its wishes.

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Scotland, Wales and Ireland point to how governments should be formed in hung parliaments

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Nicola Sturgeon and Carwyn Jones have this week been re-elected as First Ministers of Scotland and Wales, whilst two week ago Enda Kenny was re-elected as Irish Taoiseach. In each case the newly elected parliament elected the head of the new government. In a new report Petra Schleiter, Valerie Belu and Robert Hazell argue that a similar procedure should be adopted at Westminster, where currently the Queen decides who should be Prime Minister before parliament meets. Robert Hazell explains why.

This week has seen the re-election of Nicola Sturgeon and Carwyn Jones as First Ministers in Scotland and in Wales, following the devolved elections on 5 May. Two weeks ago we witnessed the re-election of Enda Kenny as Taoiseach in Ireland, ten weeks after the Irish election on 26 February. What these three countries have in common is not just that the same leader has been re-elected, but that in their recent elections Scotland, Wales and the Republic of Ireland all saw the return of a hung parliament in which no party gained an overall majority. In these circumstances it does not fall to the Queen to decide who shall be First Minister, or in Ireland to the President; under their constitutions it falls to the newly elected parliament, whose first business (after election of a presiding officer) is to elect the head of the new government.  That is what happened in Ireland on 6 May, in Scotland on 17 May and in Wales on 18 May.

In a report published this week, which I have written with Professor Petra Schleiter and Valerie Belu of Oxford University, we suggest that is what should also happen in future at Westminster. Instead of the Queen having to decide who should be Prime Minister before parliament meets, the first business of a newly elected House of Commons should be to select the Prime Minister, who would then be formally appointed by the Queen.

This may seem unnecessary after elections when a single party wins an overall majority, and it is obvious who is going to be Prime Minister: as happened in the UK in 2015. In those cases the election of the leader of the majority party to head the new government would be a formality.  The value of asking the House of Commons to choose the Prime Minister is when it is not obvious who can command confidence in the newly elected parliament. That is always going to be the case in a hung parliament, especially if it is closely hung. We risk forgetting how narrowly we escaped from having such a parliament after the 2015 general election. In the weeks before the election the polls suggested a very close result, with some forecasting a dead heat between the two major parties. Although the Cabinet Manual says it is for the political parties to work out who can command confidence in the new parliament, there is a risk of confusion and uncertainty if there is a standoff, with both main parties claiming to be able to form a government. The only reliable way to determine who can command confidence in such a situation is a nomination vote in the House of Commons. That would be a quicker and cleaner solution than the traditional vote on the Queen’s Speech as the first test of confidence in a new government.

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‘Living with Difference’: The Butler-Sloss Commission’s report reflects the interests of its members rather than the public interest

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The Commission on Religion and Belief in Public Life published its report, ‘Living with Difference: Community, Diversity and the Common Good’, on 7 December. Bob Morris discusses the report, arguing that its recommendations reflect the nature of the Commission’s membership rather than an open-minded commitment to the interests of public life and policy.

The issue

Britain is experiencing considerable change in its religious landscape. Two quite different phenomena are taking place simultaneously: on the one hand, about half the population is prepared to say that it belongs to no religion, and on the other hand recent decades have seen the growth of the number of non-Christian religions present in what was formerly an almost wholly Christian country. In other words, Britain is experiencing both secularisation and pluralisation at the same time. As a result the question arises of how the country should adjust to the new situation. . In such discussions, religious bodies have displayed anxieties particularly about the place of religion in a more secularised ‘public sphere’.

What follows explains the nature of the Commission on Religion and Belief in British Public Life set up by the Woolf Institute to look at the issues, summarises its main recommendations, records some initial public reactions, and tries to assess – primarily from a constitutional point of view – what it might all be taken to mean.

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The Queen’s Sorpasso

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9 September 2015 marks the day Elizabeth II becomes the UK’s longest reigning monarch. Bob Morris takes this milestone as an opportunity to reflect on the evolution of the monarchy in relation to the constitution in recent years.

Today Queen Elizabeth II’s term exceeds Victoria’s and she becomes the nation’s longest reigning monarch. The institution she heads is not subject to any current serious challenge. Indeed, it is now probably as popular as it has ever been.

Milestones like this prompt reflection and the following attempts to consider what the present reign tells us about the monarchy and the constitution.

Resisting republicanism

To state the obvious first, the monarchy has survived. That should be regarded as an achievement in itself and not assumed to be a constitutional given. The very concept of monarchy is hardly attuned to the spirit of the times – increasingly egalitarian, democratic, undeferential, worldly, multicultural, secular. Some maintain that monarchy represents a vanished feudal worldview of fixed hierarchy, deference, social immobility and religious uniformity.

Despite these claims there is, apart from small sections of the chattering classes, no serious pressure to abolish the monarchy and replace it with a republic. With the possible exception of Australia, this appears to be the position too in the other former ‘settler’ dominions of Canada and New Zealand. Nor does a concerted move against the monarchy seem likely in the twelve other Commonwealth ‘realms’ of which the Queen is head of state. Polling support in the UK for a republic has only ever once – and in evanescent special conditions – just exceeded 20 per cent. Republicanism has yet to establish any real political traction.

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The Succession to the Crown Act 2013 has landed

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On Friday 26 March 2015 the 2013 Succession to the Crown Act was finally brought into force. Bob Morris offers an overview of the Act and explains why it has taken so long to come into effect.

At practically the last gasp of the now dissolved Parliament, the bringing into force of the Succession to the Crown Act was announced by the Deputy Prime Minister Nick Clegg in his capacity as Lord President, on Friday 26 March 2015 [Hansard, Lords, HLWS483].

Many people may well have concluded that all this had been accomplished when the Act was passed in 2013. Some may even have thought that it had all been settled when the Prime Minister secured agreement to proceed on 28 October 2011 at the Commonwealth Heads of Government Meeting (CHOGM) at Perth, Australia. It may be a mark of how little general interest there was in the final consummation that the first publications to greet it were the Hello and Elle magazines.

However, the latest development is not insignificant. What follows seeks to:

  • Recapitulate what the Act is about
  • Explain why it has taken so long to come into force
  • Discuss how the changes are to be understood

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