Regency Acts - WikiHQ

The Regency Acts are acts of the Parliament of the United Kingdom passed at various times, to provide a regent in the event of the reigning monarch being incapacitated or a minor (under the age of 18). Prior to 1937, Regency Acts were passed only when necessary to deal with a specific situation. In 1937, the Regency Act 1937 (1 Edw. 8. & 1 Geo. 6. c. 16) made general provision for a regent, and established the office of Counsellor of State, a number of whom would act on the monarch's behalf when the monarch was temporarily absent from the realm or experiencing an illness that did not amount to legal incapacity. This act, as modified by the Regency Acts of 1943 and 1953, forms the main law relating to regency in the United Kingdom today.

An example of a pre-1937 Regency Act was the Care of King During his Illness, etc. Act 1811 which allowed Prince George (later King George IV) to act as regent while his father, King George III, was incapacitated.

History

Prior to 1937, there was no permanent, general provision in British law for a regent to be appointed if the British monarch were incapacitated, a minor or absent from the country. Before the Glorious Revolution, it was up to the sovereign to decide who would be regent in any event although the decision was often implemented by legislation. For example, section XI of the Treason Act 1554 (1 & 2 Ph. & M. c. 10) made King Philip, the husband and co-ruler of Queen Mary I, regent if Mary died and her heir was male and under 18 or an unmarried female under 15.

By the Act of Settlement 1701, Parliament passed the line of succession to Electress Sophia of Hanover. That decision was confirmed and extended to all of Great Britain by the Acts of Union 1707. With the doctrine of parliamentary supremacy firmly established in British law, it became possible for the British Parliament to pass legislation to determine who would act as regent during the absence, incapacity or minority of the ruling monarch. Since then, several Regency Acts have been passed.

File:The Rt. Honble. Thomas Ld. Parker Barn. of Macclesfield and Ld. High Chancelor of Great Britain etc NYPL Hades-286750-1253707) crop.jpg| Sir Thomas Parker<br />August–September 1714

File:King George II of England.png| Prince George (future George II)

The act required privy counsellors and other officers in the event of Anne's death, to proclaim as her successor the next Protestant in the line of succession to the throne, and it was made high treason to fail to do so. If the next Protestant successor was abroad at the death of Anne, seven great Officers of State named in the act and others whom the heir apparent thought fit to appoint, called "Lords Justices", would form a regency. The heir would name these others through a secret instrument that would be sent to England in three copies and delivered to the Hanoverian Resident, the Archbishop of Canterbury and the Lord Chancellor. The Lords Justices were to have the power to give royal assent to bills except that they would be guilty of treason if they amended the Act of Uniformity 1662 (14 Cha. 2. c. 4).

Two years later, after the union of Scotland and England, the new Parliament of Great Britain passed the Succession to the Crown Act 1707 (6 Ann. c. 41) to reaffirm the above procedure and modify it slightly. Under the act, if the monarch died while the heir to the throne was overseas, the government would be run until the new monarch returned by between seven and fourteen "Lords Justices". Seven of the Lords Justices were named in the act, and the next monarch could appoint seven others, who would be named in writing, with three copies to be sent to the Privy Council in England.

The act made it treason for any unauthorised person to open them or to neglect to deliver them to the Privy Council. The Lords Justices were to have the power to give royal assent to bills, except that they would be guilty of treason if they amended the Act of Uniformity 1662 or the Protestant Religion and Presbyterian Church Act 1707.

Upon Anne's death in 1714, the new king, George I, was in his home realm of Hanover. In accordance with the Succession to the Crown Act, Thomas Parker, Lord Chief Justice, became head of the regency. He served for a little over a month.

Regency Act 1728

The second act passed by the Parliament of Great Britain to deal exclusively with a regency was in 1728, the Regency During the King's Absence Act 1728 (2 Geo. 2. c. 27). It specified that Queen Caroline would act as regent in the absence of her husband, King George II rather than their son Frederick, Prince of Wales, whom he despised. The act was necessary because George II was also the elector of Hanover and was returning to his homeland for a visit.

Minority of Successor to Crown Act 1750

The Regency Act 1943 (6 & 7 Geo. 6. c. 42) modified the Regency Act 1937 (1 Edw. 8. & 1 Geo. 6. c. 16) so that counsellors of state who were absent during the Sovereign's absence would not be listed among the appointments. It also declared that the heir-apparent or presumptive to the throne (first in the line of succession) only had to be 18 to be a counsellor; this would allow then-Princess Elizabeth to begin serving as a counsellor shortly after the passage of the act (her 18th birthday being 21 April 1944).

Regency Act 1953

In 1952 King George VI died and was succeeded by his elder daughter, Queen Elizabeth II. With her eldest son and heir apparent, Prince Charles, Duke of Cornwall, under the age of 18, the Regency Act 1937 would provide for the next person over the age of 21 in the line of succession, the Queen's sister Princess Margaret, to act as regent. However, although a regency was already provided for, Parliament made a new law creating a provision specific to the scenario of the succession to the throne of a son or daughter of Queen Elizabeth II and her husband, Prince Philip, Duke of Edinburgh, while still under the age of 18 years. That provision, which ceased to have any relevance in law once the children of Elizabeth and Philip reached adulthood, was to the effect that Prince Philip, if living, would act as regent in case of an underage succession to the Crown by one of the children born of his marriage to Queen Elizabeth II. Similarly, Prince Philip would become the Queen's regent if she became incapacitated and they had no children or grandchildren able to be her regent.

This did not remove Princess Margaret as a potential regent, but simply gave Prince Philip priority over her. At the bill's second reading, David Maxwell-Fyfe, the Home Secretary, explained:

The act also allowed the Queen's mother, Queen Elizabeth the Queen Mother, to become a Counsellor of State again, a position she had lost on the death of her husband King George VI.

Most of the provisions of the Regency Act 1953 (2 & 3 Eliz. 2. c. 1) ceased to be applicable as the Queen's children came of age, except in the unlikely event that the Queen's children all passed away before her grandchildren became of age. The sole provision of the 1953 Act that is still relevant is section 2, which reduced to 18 the age at which the heir-apparent or heir-presumptive to the throne could become Regent. This was done to remove the perceived anomaly that a person aged 18 could become a counsellor of state and could, upon accession to the throne, personally discharge the royal functions, but could not act as a regent until 21. In fact, this had been intended in 1937. In 1937, when the bill was still in committee, the attorney-general Donald Somervell had said:

<blockquote>There might well arise a case where the heir to the Throne was under 18 years of age and where it would be necessary to have a Regent, but that such Regent would only be a few months older. It would then be rather absurd to appoint as Regent someone only six months older than the King. Consequently ... there should be a minimum difference of three years.</blockquote>

Counsellors of State Act 2022

The Counsellors of State Act 2022 (c. 47) appointed Anne, Princess Royal and Prince Edward, Earl of Wessex (now Duke of Edinburgh) as additional Counsellors of State for their lifetimes, a position each had previously held but subsequently lost when Prince William and Prince Harry respectively reached the age of eligibility. This was reported as intended to avoid the possible necessity of Prince Andrew, Duke of York (now Andrew Mountbatten-Windsor), beset by scandals, acting as a Counsellor of State.

Situations in which the royal functions are transferred to a regent

According to the Regency Acts 1937 to 1953, presently in force, there is provision for the establishment of a regency either on account of the minority of the monarch or of the absolute incapacity of the monarch to discharge the royal functions.

Regency in the case of the minority of the sovereign

According to the Regency Acts in force, if the monarch is under the age of 18 years when he or she succeeds to the throne, a regency is automatically established, and, until the monarch attains the age of 18 years, the royal functions are discharged by the regent in the name and on behalf of the monarch.

In that case, any oaths or declarations required by statute to be taken by the sovereign on or after succeeding to the Crown are postponed until the sovereign's personal assumption of the royal functions, and for the purpose of all such enactments regarding oaths and declarations that the new monarch must make upon accession "the date on which the Sovereign attains the age of eighteen years shall be deemed to be the date of His Accession".

Regency in the case of infirmity or unavailability

Unlike any of the preceding Regency Acts, the Regency Act 1937 (which is still in force) established in law a procedure for determining the incapacity of the sovereign due to infirmity of mind or body or due to the monarch's unavailability for another definite cause.

When a declaration of incapacity is made in accordance with the procedure set out in the Regency Act 1937 a regency is established and the royal functions are transferred from the sovereign to a regent, who discharges them in the name and on behalf of the monarch until a declaration is made in accordance with the said Act to the effect that the monarch's incapacity has ceased.

Declarations of incapacity and capacity

According to section 2 of the Regency Act 1937, the people who can make a declaration of incapacity (or a declaration that the incapacity has ended) are the sovereign's consort, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and Wales, and the Master of the Rolls. these positions are held by, respectively, Queen Camilla, David Lammy, Sir Lindsay Hoyle, Baroness Carr of Walton-on-the-Hill, and Sir Geoffrey Vos.

Any declaration of incapacity or of cessation of incapacity needs to be signed by three or more of them. Declarations based on the monarch's unavailability for a definite cause need to be supported by evidence, and declarations attesting the sovereign's incapacity by reason of infirmity of mind or body need to be supported by evidence including evidence provided by physicians.

A declaration of incapacity or of cessation of incapacity needs to be made to the Privy Council and communicated to the governments of the dominions.

Incapacity of the Regent

Under the Regency Act 1937, a declaration of incapacity can also be made with respect to the regent. Thus, if the person serving as regent becomes incapable of discharging the royal functions, either on account of an infirmity of mind or body, or because the regent has become, for a definite cause, unavailable to perform the said functions, then the spouse of the regent, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls are empowered to make a declaration of incapacity regarding the regent.

The requirements for that declaration of incapacity are the same ones that are valid with regard to a declaration affecting the sovereign: the incapacity of the regent must be attested by evidence; in the case of infirmity that evidence shall include evidence provided by physicians; the declaration needs to be signed by at least three of the people empowered by law; and it needs to be lodged with the Privy Council.

Under section 3, subsection 5, of the Regency Act 1937, when the regent is the object of a declaration of incapacity, he or she ceases to be the regent, as if he or she were dead, and the person next in line capable of discharging the regency becomes regent in his or her place.

When a regent is removed from office by a declaration of incapacity and subsequently the incapacity ceases to exist, the regent can be restored to office by means of a declaration of cessation of incapacity. In that case upon the declaration of cessation of incapacity, a change of regent takes place, with the person who has a lower place in the order of succession ceasing to be the regent, and in his or her stead the person with a higher position in the order of succession, who had only ceased to be regent due to the declaration of incapacity, resuming the office of regent. The requirements for declaration of cessation of incapacity regarding the regent are the same ones that are valid for a declaration of cessation of incapacity regarding the sovereign.

Assumption of office by the Regent: oaths to be taken before the Privy Council

Whenever a regency is established, either on account of incapacity of the sovereign (duly declared in accordance with the procedure prescribed in statute), or on account of the minority of the Sovereign, and also when there is a change of regent, the new "Regent shall, before he acts in or enters upon his office," take the oaths required by the Regency Act 1937; accordingly, a new regent only enters into the execution of his office by taking the oaths, and therefore cannot discharge any of the royal functions before taking them.

The oaths required to be taken by a new Regent upon his assumption of office are as follows:

The said oaths need to be taken and subscribed by the new Regent before the Privy Council, and the Regency Act, 1937 specifies that "the Privy Council are empowered and required to administer those oaths and to enter them in the Council Books".

Guardianship of the sovereign during a regency

Unlike the situations of minor infirmity or of travel abroad that allow for the possible delegation of the royal functions by the monarch to counsellors of state (as authorised by section 6 of the Regency Act 1937), the establishment of a regency carries with it the notion that the sovereign is not fit and able to administer the affairs of his own person, so that he needs a legal guardian. The guardianship of the monarch, however, is not governed by the same ordinary body of laws that regulate the appointment of legal guardians to people in general. Instead of the legal guardian of the sovereign being appointed by a court based on the recommendations of the social services, the guardianship of the monarch is provided for directly by Regency Act 1937, presently in force.

Because the sovereign in his or her private capacity is not subject to the jurisdiction of the courts, the institution of a regency remains the sole method of placing the person of the sovereign under legal guardianship. And, according to the provisions of the Regency Acts in force, the creation of a regency to discharge the royal functions and the legal guardianship of the monarch go hand in hand: the monarch is only subject to legal guardianship when there is a regency, and always when there is a regency the monarch is placed under legal guardianship.

The legal guardianship of the person of the monarch (with the corresponding power to administer the private property of the sovereign) does not necessarily rest with the regent. However, if the none of the prospective guardians provided for in the statute exist, then, also according to the statute, the regent becomes the guardian of the sovereign. Accordingly, during a regency, the regent is the person invested with the royal authority, that discharges the royal functions on behalf of the monarch. The guardian, on the other hand, has the legal custody of the sovereign (who is either a minor or an incapacitated person) and the duty to care for the monarch's personal well-being. The two roles may or may not be combined.

According to section 5 of the Regency Act 1937, if the monarch is under the age of eighteen years and unmarried, then his or her mother, if living, shall have the guardianship of the monarch's person. On the other hand, if the sovereign is married, but is still under the age of eighteen years, or if the sovereign is a married adult, but has been declared incapable for the time being of performing the royal functions, then the wife or husband of the sovereign, if of full age, shall have the guardianship of the person of the monarch. In all other cases except the two situations described above (that is, if the sovereign is unmarried and under the age of eighteen years, but his mother is no longer living; or if the sovereign is married, but the wife or husband is not of full age; or if the sovereign has been declared incapable of performing the royal functions, but does not have a wife or husband), then the regent shall be the legal guardian of the monarch and shall have custody of his or her person, and the property of the sovereign, except any private property which in accordance with the terms of any trust affecting it is to be administered by some other person, shall be administered by the regent.

, the first person under the age of 18 in the line of succession to the throne is William's eldest child Prince George of Wales, who is second in line to the throne after his father. If the prince were to succeed to the throne before his 18th birthday on 22 July 2031, his uncle, Prince Harry, Duke of Sussex (Charles's younger son), would serve as regent (if domiciled in the United Kingdom, as required by the 1937 Act), as George's younger siblings Charlotte and Louis (currently third and fourth in line, respectively) would also be minors. If Prince Harry were to be disqualified from being able to be regent by virtue of his domicile status, a possibility since his 2019 decision to take up residence in the United States, the next in line would be Charles's brother (Prince George's great-uncle) Andrew Mountbatten-Windsor, followed by Andrew's elder daughter Princess Beatrice.

Legal guardianship

If the King were to be declared incapable of discharging the royal functions, the legal guardianship of the incapacitated monarch would be vested in his consort, Queen Camilla. If she were to be unable to carry out the duties of legal guardian, they would then revert to the sitting regent.

Prince George of Wales, should he ascend to the throne prior to his 18th birthday on 22 July 2031, would be the first person in the present line of succession who would require a regency and legal guardianship until he turned 18. According to the Regency Acts as currently in force, should this occur, his legal guardianship would be vested in his mother, Catherine, Princess of Wales. If she were to be unable to carry out the duties of legal guardian, they would then revert to the sitting regent.

Explanatory notes

References

External links

Heraldica.org website on Regency