Information about the legal provisions which apply if the King loses the capacity to work.
- What happens if the King becomes so ill that he can no longer work?
- Who decides if the King is incapable?
- How is a regency publicised?
- Would William automatically become Regent?
- Can a regency be ended?
- What if William himself loses capacity?
- Is there a half-way house, a soft Regency?
- What functions would a soft Regent perform?
- What if the King is only temporarily incapacitated?
The Regency Act 1937 established in law a procedure for determining the incapacity of the sovereign due to infirmity of mind or body. When a declaration of incapacity is under the Regency Act, a regency is established and the royal functions are transferred from the sovereign to the next in line of succession, namely Prince William the Prince of Wales.
The people who can make a declaration of incapacity are the Sovereign’s spouse, the Lord Chancellor, Lord Chief Justice, Master of the Rolls, and Speaker of the House of Commons (in September 2022 these were Brandon Lewis MP, Lord Burnett, Sir Geoffrey Vos and Sir Lindsay Hoyle MP). Any declaration of incapacity needs to be signed by three or more of them. Declarations need to be supported by evidence including medical evidence.
The declaration of incapacity needs to be made to the Privy Council and communicated to the governments of the realms, the 14 other countries where the British monarch is also head of state.
The new Regent must take the oaths required by the Regency Act, and cannot discharge any of the royal functions until the oaths have been taken before the Privy Council. The oaths are as follows:
I swear that I will be faithful and bear true allegiance to King Charles III 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 King Charles III 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.
If the sovereign recovers capacity, the regency can be ended by a declaration of cessation of incapacity. The procedure is the same as for a declaration of incapacity, with the same signatories, the same requirement of medical evidence, and the declaration being made to the Privy Council.
A declaration of incapacity can also be made with respect to the Regent. If the Regent becomes incapable of discharging the royal functions, the same group of signatories are empowered to make a declaration of incapacity.
The requirements are also the same: the incapacity of the regent must be attested by evidence; the declaration needs to be signed by at least three of the signatories; and it needs to be lodged with the Privy Council. So long as Prince George, the person next in line of succession, remains under the age of 18, Prince Harry (as the next adult in the line of succession) would become Regent until Prince George reaches the age of majority.
What if King Charles is seriously infirm, but not so incapacitated that he is incapable of performing the royal functions: could there be a soft Regency? This would leave certain core functions with the sovereign, and delegate everything else. The King alone would signify royal assent to Bills; and the King would continue – on advice – to make statutory appointments. Much else could be delegated to other members of the royal family, above all Prince William who could become a sort of de facto regent.
As Prince Charles did during the reign of Queen Elizabeth II, Prince William could preside at the state opening of Parliament; lead on Remembrance Sunday; and Trooping the Colour. He already takes investitures. He could take over the diplomatic business of receiving incoming and outgoing ambassadors, and state visits, as Prince Charles did when attending the Commonwealth heads of government meeting in Rwanda in 2022. This had been happening for a while in the latter years of the late Queen’s reign: in 2013 it was the Prince of Wales rather than the Queen who held an audience with the incoming and outgoing heads of MI5.
The Regency Act 1937 also created the office of Counsellor of State to cover short term absences where a regency would be unnecessary. If the King cannot undertake his official duties on a temporary basis due to illness, two or more Counsellors of State are appointed by Letters Patent to act in his place.
The Counsellors of State are the next four people in the line of succession over the age of 21: Prince William, Prince Harry, Prince Andrew and Princess Beatrice.
Counsellors of State are authorised to carry out most of the official duties of the Sovereign, for example, attending Privy Council meetings, signing routine documents and receiving the credentials of new ambassadors. However, certain core constitutional functions may not be delegated:
- Commonwealth matters
- The dissolving of Parliament, except on the King’s express instruction
- The creation of peers
- Appointing a Prime Minister.