Tag Archives: Regency

The Queen’s Platinum Jubilee: what does the future hold for the monarchy? 

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The Platinum Jubilee was a time for celebration, but it also provoked many questions about the future of the monarchy, and what it might look like under the next monarch. In this post, Robert Hazell and Bob Morris attempt to answer those questions, relying on their detailed knowledge of modern European monarchies.

The Platinum Jubilee was an occasion for celebration and relaxation rather than profound reflection about the monarchy and its future. But for Robert Hazell and Bob Morris it was an exceptionally busy weekend, as they responded to a deluge of media requests from around the world. These clustered around the same set of questions:

  • How can a hereditary monarchy be part of a modern democracy?
  • Will public support for the monarchy outlive support for the Queen?
  • What kind of King will Prince Charles be? What changes might he want to introduce?
  • What is the future of the monarchy in the realms, the 14 other countries around the world where the Queen is also head of state?

This post offers more detailed answers to these questions than allowed by brief media interviews. It does so through a comparative and constitutional law lens, based upon our co-edited book, The Role of Monarchy in Modern Democracy: European Monarchy

How can a hereditary monarchy be part of a modern democracy?

The first question is easily answered: there is no contradiction between monarchy and democracy, with some of the most advanced democracies in the world also being monarchies. Denmark, Norway, Sweden, the Netherlands and New Zealand are countries which regularly feature at the top of the annual Democracy Index compiled by the Economist Intelligence Unit: all are monarchies. They have survived as monarchies because the monarch no longer has any political power; the monarch reigns, but does not rule. Constitutional monarchs act on the advice of the elected government; if they fail to do that or otherwise step out of line, they risk losing their thrones. That was the lesson brutally learned by Edward VIII in the abdication crisis of 1936, but he was not the only European monarch forced to abdicate. The same fate befell King Leopold III of the Belgians in 1950, Grand Duchess Marie-Adélaïde of Luxembourg in 1919, and King Juan Carlos of Spain in 2014, when opinion polls showed that two-thirds of Spaniards felt he should abdicate.

Will public support for the monarchy outlive support for the Queen?

Monarchy as a system of government depends on the consent of the people as well as the government. If the people withdraw their support from monarchy as an institution, it is finished. That is how monarchy came to an end in referendums in Italy after the Second World War and in Greece in 1973-74. In all, there were 18 referendums held on the future of the monarchy in 10 different European countries during the last century. Not all led to the country becoming a republic: referendums have reaffirmed continuation of the monarchy in Denmark and Norway, and restoration of the monarchy in Spain.

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

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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.

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

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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.

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The UK Monarchy: Moving to a regency that dare not speak its name?

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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).