Regency Acts

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 made general provision for a regent, and also established the office of Counsellor of State, several of whom would act on the monarch's behalf when the monarch was temporarily absent from the realm. This Act forms the main law relating to regency in the United Kingdom today.

An example of a pre-1937 Regency Act was the Act of 1811 which allowed George, Prince of Wales to act as regent while his father, King George III, was incapacitated. George ruled as the Prince Regent until his father's death, when he ascended the throne as King George IV.

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 or absent from the country. Nor was there a general provision for a regent to rule on behalf of an heir apparent or heir presumptive who succeeded to the throne as a minor. Before the Glorious Revolution, it was up to the sovereign to decide who would be regent in any event, although this decision was often implemented by legislation. For example, section XI of the Treason Act 1554 made King Philip, husband and co-ruler of Queen Mary I, regent in the event that Mary died and her heir was male and under 18, or an unmarried female under 15.

The passing of the Bill of Rights 1689 by the Parliament of England confirmed in law that Parliament, not the sovereign, decided the order of succession. By the Act of Settlement 1701, Parliament passed the line of succession to Electress Sophia of Hanover; this 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 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.

Regency Act 1728

The first 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). The Act specified that Queen Caroline would act as regent in the absence of her husband King George II. The Act was necessary because George II was also Elector of Hanover and was returning to his homeland for a visit.

Minority of Successor to Crown Act 1751

In 1751, Frederick, Prince of Wales, the eldest son and heir apparent of King George II, died. This left Frederick's eldest son, Prince George, as the new heir apparent. But George was only 12 at the time of his father's death. If the King were to die before Prince George turned 18, the throne would pass to a minor.

Consequently, Parliament made a provision for a regent by passing the Minority of Successor to Crown Act 1751 (24 Geo. 2 c. 24).^{[lower-alpha 1]} This Act provided that George's mother, Augusta, Dowager Princess of Wales, would act as regent. The Act also specified that a Council of Regency be put in place to rule alongside Princess Augusta. The Council of Regency was to act as a brake on the regent's power; some acts of the Royal prerogative, such as declarations of war or the signing of peace treaties, would require a majority vote of the council. The provisions of this act actually never came into force, since Prince George had already come of age at the time of the death of his grandfather.

Minority of Heir to the Crown Act 1765

In 1760, King George III ascended the throne, with his brother Prince Edward, Duke of York and Albany, as heir presumptive. However, the new King soon married and had several children. By 1765, the King had three infant children in the order of succession. Parliament again passed a Regency Act to provide for a regent in the event of the King's death.

The Minority of Heir to the Crown Act 1765 (5 Geo. 3 c. 27)^{[lower-alpha 2]} provided that either the King's wife, Queen Charlotte, or his mother, Augusta, Dowager Princess of Wales, would act as regent. This Act also required the formation of a Council of Regency. As with the previous act, the provision of this act actually never came into force, since the eldest son of George III was already 57 when his father died.

Regency Bill 1789

The Regency Bill of 1789 was a proposed Act of Parliament to provide that King George III's eldest son George, Prince of Wales, would act as regent due to the King's incapacity through mental illness. With no legislation already in place, there was no legal basis for providing a regent, and the King was in no fit state to give Royal Assent to the Act. Parliament decided to have the Lord Chancellor (Lord Thurlow) approve the bill by fixing the Great Seal of the Realm to give Royal Assent. However, the King recovered in time before the bill could be passed. Prince Frederick, Duke of York and Albany, and others thought the Act illegal; but following his recovery, the King declared that the government had acted correctly.

The King's continuing mental problems throughout the rest of his life confirmed the need for a suitable Regency Act to be in place. However, the King was hostile to the passing of such an Act while he was of sound mind.

Care of King During his Illness, etc. Act 1811

In late 1810, King George III was once again overcome by mental illness, following the death of his youngest daughter, Princess Amelia. Parliament agreed to follow the precedent of 1789: without the King's consent, the Lord Chancellor affixed the Great Seal of the Realm to letters patent naming Lords Commissioners. Such letters patent were irregular, because they did not bear the Royal Sign Manual, and only Letters Patent signed by the Sovereign himself can provide for the appointment of Lords Commissioners or for the granting of Royal Assent. However, because the King was already incapacitated de facto, resolutions by both Houses of Parliament approved the action, directing the Lord Chancellor to prepare the Letters Patent and to affix the Great Seal to them even without the signature of the monarch. The Lords Commissioners thus appointed, in the name of the King, signified the granting of the Royal Assent to a bill which became the Care of King During his Illness, etc. Act 1811 (51 Geo. 3 c. 1). Under this Act, the King was suspended from the personal discharge of the royal functions, and George, Prince of Wales discharged those functions in the name and on behalf of the King from 1811 until 1820, when the King died and the Prince of Wales succeeded to the throne. Parliament restricted some of the powers of the Prince Regent (as the Prince of Wales became known). The constraints expired one year after the passage of the Act.

The importance of this Regency Act was that it did not require a Council of Regency, as required by previous legislation. One reason for this was that the Prince Regent was heir apparent to the throne in any case, and would assume full powers upon his father's death.

Regency Act 1830

In 1830 the throne passed to George IV's younger brother (George III's third-eldest son), King William IV. But William IV had no legitimate children, and given the age of his wife, Queen Adelaide, he was unlikely to have any in the future. The heiress presumptive to the throne was his niece, Princess Victoria of Kent, who was only eleven.

As Victoria's father was dead, and Parliament mistrusted the younger sons of George III, the Act (1 Will. 4 c. 2) placed any potential regency caused by the King's death before Victoria had reached 18, in her mother, the Duchess of Kent. However, if Queen Adelaide gave birth to a child, that child was to become king or queen instead of Victoria, and Adelaide would become regent. If such a birth occurred after the King's death, his child was to immediately succeed Victoria, in Victoria's lifetime, as king or queen. The Act prohibited either monarch from marrying during the regency without the Regent's consent, and made it high treason to marry the monarch without such consent, or to assist in or be concerned in the marriage. The Act also prohibited the regent from giving royal assent to a bill to change the line of succession to the throne, or to repeal or alter the Act of Uniformity 1662 or the Scottish Protestant Religion and Presbyterian Church Act 1707.^[1]

However, since Victoria became queen aged 18, and Queen Adelaide had no more children, a regency was unnecessary and the Act never came into force.

Lords Justices Act 1837

In 1837 Princess Victoria of Kent succeeded her uncle to become Queen Victoria. She became monarch aged 18, while she was still unmarried and without children. The next in the line of succession was her uncle, King Ernest Augustus I of Hanover, who succeeded King William IV in the Kingdom of Hanover as Salic Law prevented Victoria becoming Queen of Hanover. Thus Ernest August departed the United Kingdom to take up his role in Hanover. This meant that until the Queen married and had legitimate children, the heir presumptive to the throne and his children would reside abroad. Although they would almost certainly return to the United Kingdom in the event of Victoria dying without an heir, it would take some weeks for this to happen using nineteenth century transport.

To provide for the continuation of government in such an instance, Parliament passed the Lords Justices Act 1837 (7 Will. 4. & 1 Vict. c. 72, long title: An Act to provide for the Appointment of Lords Justices in the Case of the next Successor to the Crown being out of the Realm at the Time of the Demise of Her Majesty). This Act did not provide for a specific regent to be appointed, as it was expected that the new monarch would arrive in the country within a reasonable time. Thus the Act provided only for Lords Justices, including such people as the Archbishop of Canterbury and the Lord Chief Justice, to take up some of the monarch's duties. Unlike the powers granted to prospective regents in previous legislation, the powers of the Lords Justice were more limited; for example, they could not dissolve Parliament or create peerages.

Regency Act 1840

By 1840, Queen Victoria had married her cousin, HSH Prince Albert of Saxe-Coburg-Gotha and soon gave birth to The Princess Victoria. It was expected that the Queen would have many other children; however, they would be in minority for at least the next 18 years, and Parliament again would have to provide for a regent in the event of Victoria's death. The previous Lords Justices Act 1837 would not apply to the Queen's children, as they resided in the UK. Parliament therefore passed the Regency Act 1840 (3 & 4 Vict. c. 52) which provided for Prince Albert to rule as regent until the eldest child reached the age of 18. The Act did not require a Regency Council to operate alongside Prince Albert, potentially giving him more power than earlier proposed regents. The Act was fairly controversial at the time, as the British people were suspicious of Prince Albert and he was generally unpopular in Parliament. However Victoria lived until 1901 and, in any case, Albert predeceased her, so he did not become regent.

The Act would have prohibited the monarch from marrying during the regency without written consent from the Regent and both houses of Parliament, and made it high treason to marry the monarch without such consent, or to assist in or be concerned in the marriage. The Act also prohibited the regent from giving royal assent to a bill to change the line of succession to the throne, or a bill to repeal or alter the Act of Uniformity 1662 or the Scottish Protestant Religion and Presbyterian Church Act 1707.^[2]

Regency Act 1910

In 1910 Queen Victoria's grandson, King George V, succeeded to the throne. However, his children were all under the age of 18. Therefore, Parliament passed a new Regency Act (10 Edw. 7 & 1 Geo. 5 c. 26) in 1910, that named the King's consort, Queen Mary, as regent. No regency council was provided for, following the Regency Act 1840. Once again, the provisions of this Act never came into operation, as the Prince of Wales was well over 18 by the time George V died.

Acts currently in force governing the establishment of a Regency

The Acts currently in force governing the cases in which a Regency shall come into existence and when a Regency shall cease, the determination of who shall be Regent and the powers of such Regent are the Regency Act 1937, the Regency Act 1943, and the Regency Act 1953, jointly referred to as the "Regency Acts 1937 to 1953".

Regency Act 1937

In 1936, George VI (George V's second son) had become King, with his eldest daughter, Princess Elizabeth, as heiress presumptive. However, Elizabeth was under the age of 18, leading to the need for a new Regency Act.

Rather than pass a specific Regency Act relating to the death or incapacity of George VI only, Parliament passed the Regency Act 1937 (1 Edw. 8 & 1 Geo. 6 c. 16), which provided for the incapacity or minority of all future monarchs. It also repealed the Lords Justices Act 1837, and established in statute the office of Counsellor of State, to be appointed during the monarch's absence abroad, or temporary illness not amounting to complete incapacity.

The Act required that the regent should be the next person in the line of succession who was:

• over the age of 21,
• a British subject domiciled in the United Kingdom, and
• capable of succeeding to the Crown under the terms of the Act of Settlement 1701.

The Counsellors of State were to consist of:

• the consort of the monarch and
• the next four people in the line of succession over the age of 21.

Thus, at the time of the passing of the Act, Prince Henry, Duke of Gloucester would have become Regent in the event that King George VI died while The Princess Elizabeth was still a minor. The current prospective regent under the Act would be Charles, Prince of Wales.

Section 4 of the Act prohibits the regent from giving royal assent to a bill to change the line of succession to the British throne or to repeal or alter the Scottish Protestant Religion and Presbyterian Church Act 1707.

Regency Act 1943

This Act (6 & 7 Geo. 6 c. 42) modified the Regency Act 1937 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.

Regency Act 1953

Most of the provisions of the Regency Act 1953 (2 & 3 Eliz. 2 c. 1) ceased to be applicable as children came of age. The sole provision of the 1953 Act that is still relevant is section 2, which removed 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.^{[lower-alpha 3]}

In 1952 King George VI died and was succeeded by his daughter, Queen Elizabeth II. With her eldest son and heir apparent, Prince Charles, 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 all 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. Furthermore, if a regency was necessary during Elizabeth II's reign, the Duke of Edinburgh would act as regent if the Queen had no eligible children or grandchildren.

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.

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 Sovereign 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 of mind or body or of unavailability for a definite cause

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.

Power to make the declaration of incapacity and the declaration of cessation of incapacity

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 consort of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and the Master of the Rolls. As of 2016 these positions were held by, respectively, the Duke of Edinburgh, Elizabeth Truss, John Bercow, Lord Thomas of Cwmgiedd, and Lord Dyson.

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, the same group of people who can make a declaration of incapacity regarding the sovereign (the wife or husband of the monarch, 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:

I swear that I will be faithful and bear true allegiance to [here insert the name of the Sovereign] his heirs and successors according to law. So help me God.

I swear that I will truly and faithfully execute the office of Regent, and that I will govern according to law, and will, in all things, to the utmost of my power and ability, consult and maintain the safety, honour, and dignity of [here insert the name of the Sovereign] and the welfare of his people. So help me God.

I swear that I will inviolably maintain and preserve in England and in Scotland the Settlement of the true Protestant religion as established by law in England and as established in Scotland by the laws made in Scotland in prosecution of the Claim of Right, and particularly by an Act intituled “An Act for Securing the Protestant Religion and Presbyterian Church Government” and by the Acts passed in the Parliament of both Kingdoms for Union of the two Kingdoms, together with the Government, Worship, Discipline, Rights, and Privileges of the Church of Scotland. So help me God.

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,^[4] if the monarch is under the age of eighteen years and unmarried, then his mother, if living, shall have the guardianship of his 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 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.

Current position

Regency

As of 2016, under the provisions of the Regency Acts in force, Prince Charles, Prince of Wales, would act as regent in the event of the incapacity of his mother Queen Elizabeth II. The next person in the line of succession, the Prince of Wales' elder son Prince William, Duke of Cambridge, would also be able to succeed without necessitating a regency and would be eligible to be regent for his grandmother or his father.

As of 2016, the first person under the age of 18 in line of succession to the throne is Prince George of Cambridge. The child, who is the grandson of the Prince of Wales, is third in line to the throne after his grandfather and father. If the prince were to succeed to the throne before his 18th birthday on 22 July 2031, his uncle, Prince Harry (the Prince of Wales' younger son) would serve as regent, as George's younger sister Charlotte (currently 4th in line) would also be a minor. In the event that Prince Harry would be unable to serve as regent, the next in line would be his uncle (Prince George's great uncle) the Prince Andrew, Duke of York followed by the Duke of York's elder daughter Princess Beatrice of York.

Legal guardianship

Currently, if Elizabeth II were to be declared incapable of discharging the royal functions, the legal guardianship of the incapacitated monarch would be vested in her husband Prince Philip, Duke of Edinburgh. If, however, the Duke of Edinburgh were to predecease his wife or be otherwise unable to carry out the duties of legal guardian, the guardianship of the Sovereign would then be vested in the sitting Regent.

Prince George of Cambridge, should he ascend to the throne prior to his 18th birthday, is the first person in the present line of succession that would require Regency and Legal Guardianship, until the termination of his minority. According to the Regency Acts as currently in force, should this occur, Prince George's legal guardianship would be vested in his mother, Catherine, Duchess of Cambridge. If she were to be unable to carry out the duties of legal guardian, the guardianship of Prince George would then revert to the sitting Regent.

See also

• Letters Patent, 1947, for the position in Canada.

Notes

References

External links

• Text of the Regency Act 1937 (c. 16) as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk
• Text of the Regency Act 1943 (c. 42) as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk
• Text of the Regency Act 1953 (c. 1) as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk
• Heraldica.org website on Regency