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The Regency Acts are Acts of the Parliament of the United Kingdom passed at various times, to provide a regent if the reigning monarch were to be 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 is the main regency act in force 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 to the throne 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 II of Spain, the king consort of 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 in the Act 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.[citation needed] Since then several regency acts have been passed.
Regency Act 1728
The first Act passed by the British Parliament 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, Duke of Edinburgh, 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 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) 1. This Act provided that George's mother, Princess 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.
Minority of Heir to the Crown Act 1765
In 1760, King George III ascended the throne, with his brother the Duke of York 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) 2 provided that either the King's wife, Queen Charlotte, or his mother, Princess Augusta, Dowager Princess of Wales, would act as regent. This act also required the formation of a Council of Regency.
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 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. The Duke of York 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 1788; without the King's consent, the Lord Chancellor affixed the Great Seal of the Realm to letters patent naming Lords Commissioners. The Lords Commissioners, 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). 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 to the throne in any case, and would assume full powers upon his father's death.
Regency Act 1830
By 1830, the throne had passed to George III's third-eldest son, William IV. But William IV had no legitimate children, and given the age of his wife, Queen Adelaide, was unlikely to have any in the future. The heiress presumptive to the throne was his niece, Princess Victoria of Kent, who was only twelve.
As Victoria's father was dead, and Parliament mistrusted the younger sons of George III, the Act (1 Will IV 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 succeed Victoria as king or queen.
The Act also prohibited the Queen from marrying during the regency without the Regent's consent, and made it high treason to marry her, or to assist in or be concerned in marrying her.
However since Victoria became queen aged 18, a regency was unnecessary and the Act never came into force.
Lord 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 Ernst 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 to the throne and his children would reside abroad. Although they would almost certainly return to the UK 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 be 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.
Regency Act 1910
By 1910, Queen Victoria's grandson, King George V was monarch. However, his children were all under the age of 18. Therefore Parliament passed a new Regency Act (10 Edw. VII & 1. Geo. V c. 26) in 1910, that named the King's consort, Queen Mary as regent. No regency council was provided for, as in the previous Regency Act of 1840.
Regency Act 1937
By 1937, King George V's second son, George VI, was King, and his eldest daughter, The Princess Elizabeth, was the heiress presumptive. However, Princess 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. VIII & 1 Geo. VI c. 1), which provided for the incapacity or minority of all future monarchs. It also repealed the Lords Justices Act 1837, and provided a new office, Counsellor of State, to be appointed during the monarch's absence abroad, or temporary illness.
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 Act, Prince Henry, Duke of Gloucester would have been appointed regent in the event of The Princess Elizabeth succeeding to the throne on the death of her father. 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. VI 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
In 1952, King George VI died and his daughter, The Princess Elizabeth, Duchess of Edinburgh, succeeded to the throne as 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, despite the fact that a regency was already provided for, Parliament made a new law saying that her husband, The Duke of Edinburgh, if living, would act as regent in case of an underage succession to the Crown by one of their children. If a regency was necessary during the current Queen's reign, the Duke of Edinburgh would act as regent only if the Queen had no eligible children or grandchildren.
The new Act (2 & 3 Eliz. II c. 1) also removed the perceived anomaly that a person aged 18 could become monarch in their own right or a counsellor of state, but could not act as a regent until 21. (In fact, this had been intended in 1937. The attorney-general had said when the 1937 bill was in committee that "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.")[1]
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.
Power to make the Declaration of Incapacity
According to the Regency Acts 1937–53, 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.
According to the Regency Act 1937, if "the following persons or any three or more of them, that is to say, the wife or husband 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, declare in writing that they are satisfied by evidence which shall include the evidence of physicians that the Sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or that they are satisfied by evidence that the Sovereign is for some definite cause not available for the performance of those functions, then, until it is declared in like manner that His Majesty has so far recovered His health as to warrant His resumption of the royal functions or has become available for the performance thereof, as the case may be, those functions shall be performed in the name and on behalf of the Sovereign by a Regent." Any such declaration must be made to the Privy Council.
Thus, the persons capable of making a declaration of incapacity 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. The declaration needs to be signed by three or more of them. The current holders of these positions are, respectively, The Duke of Edinburgh, Jack Straw, John Bercow, Lord Judge, and Lord Neuberger.
Current position
Currently, under the provisions of the Regency Act 1937, Charles, Prince of Wales would act as regent in the event of the incapacity of Elizabeth II. The next six individuals in the line of succession would be eligible to succeed or be regents in their own right. As of 6 July 2008[update], the first person under the age of 18 is Viscount Severn (eighth in line to the throne). If he were to succeed to the throne prior to his 18th birthday on 17 December, 2025, his aunt, Princess Anne, would be regent under the 1937 Act; if Anne were no longer alive, the regent would be Anne's son Peter Phillips. Following Severn is his elder sister, Lady Louise Windsor, who would not be able to rule until she turns 18 years old in 2021.
References
External links
- Official text of Regency Act 1937 (c. 16) as amended and in force today within the United Kingdom, from the UK Statute Law Database
- Official text of Regency Act 1943 (c. 42) as amended and in force today within the United Kingdom, from the UK Statute Law Database
- Official text of Regency Act 1953 (c. 1) as amended and in force today within the United Kingdom, from the UK Statute Law Database
- Heraldica.org website on Regency
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