King Charles III's cancer diagnosis raises an important question: What if he is unable to fulfill his constitutional obligations? Buckingham Palace has announced that despite the illness, it will continue its official procedures and hold its weekly meetings with the Prime Minister during his treatment. But what if he falls seriously ill?
There are three options: State Councilor, Regency, and Abdication.
First, King Charles may delegate some or most of his royal duties to councilors of state, as is the case when he travels abroad. The two Councilors of State can jointly exercise royal powers such as passing laws, receiving ambassadors and convening meetings of the Privy Council.
Councilors of State are the sovereign's wife (Queen Camilla) and the four adults next in line to the throne (in this case, Prince William, Prince Harry, Prince Andrew, and Princess Beatrice).
However, outside the UK Prince Harry is excluded, and in practice Prince Andrew and Princess Beatrice are not called to perform as they are not “working royals”.
Only Queen Camilla and Prince William will survive this. But in 2022, a law was passed in the United Kingdom to add Princess Anne and Prince Edward to the list.
The Councilors of State can perform most of the functions of the Sovereign when he is ill, but cannot dissolve Parliament without an order. Nor can they create peerages or exercise powers in relation to the other 14 states that recognize the King as their head of state. Namely: Antigua and Barbuda, Australia, Bahamas, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New Guinea, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Solomon Islands and Tuvalu.
The question whether councilors can appoint the Prime Minister remains a matter of debate.
The second option is regency. This occurs when the king is “temporarily incapable of performing royal functions, due to illness of mind or body.” The Sovereign does not control the timing or duration of the regency, but is initiated by a proclamation by three or more of the following: the Sovereign's spouse, the Lord Chancellor, the Speaker of the House of Commons, the Lord President of the High Court of England and the Court of Appeal. Chief Justice of.
The UK Regency Act requires Prince William to be regent, as he is the next adult in line to inherit the crown. Under this law, the Regent has the same powers as the King in relation to the United Kingdom, but cannot change the order of succession to the Crown. Nor does it confer executive powers in relation to the States.
The last option for an incompetent king is resignation.
When King Edward VIII abdicated in 1936, he signed the Instrument of Abdication into law, which was agreed to by the various states. This is not possible today, as the United Kingdom can no longer make laws in relation to states such as Australia.
Does this mean that if King Charles abdicates then Australia's King will have to abdicate separately? Or will section 2 of the Constitution, which defines sovereignty in terms of Queen Victoria's “heirs and successors in the sovereignty of the United Kingdom”, apply?
The constitutional confusion that would arise from addressing the role of the monarch in its 14 kingdoms beyond the United Kingdom is such that abdication would likely be avoided.
Results for other countries
If King Charles were incapacitated and Councilors of State or a Regent were appointed, would that cause any real problems in Australia?
The only significant powers the King has in relation to Australia are the appointment and dismissal of the Governor-General and state governors. The tenure of the Governor General is expected to end in the middle of this year. If King Charles was then seriously ill and unable to appoint a new Governor-General, no one could do so, as neither a councilor of state nor a regent could do so.
Instead, the current Governor General, David Hurley, may choose to remain in office, as there is no formal end to his term until he is replaced.
Alternatively, he may resign and his post may be temporarily filled by the Governor of the state as Administrator, a common practice when there is a vacancy in the office. However, if a regency lasted for a long time – perhaps years – it could become untenable.
The second view is that, if there is a regency, there is no power to remove the Governor General. Therefore, if a constitutional crisis arises in these circumstances, the Governor General will know that he can act without the risk of being removed by the Prime Minister. This unbalances the constitutional pressures deliberately built into the system, giving more power to the Governor General and weakening the position of the Prime Minister.
The problem can be addressed in the same way as the rules of succession to the throne were changed in 2015 to eliminate gender discrimination. It would involve each state asking the Commonwealth to make legislation recognizing the authority of a Regent to exercise sovereign powers in relation to Australia.
Although it is not necessary to solve this problem, under the constitutional system, it would be wise to solve it before real difficulties arise.
This article has been published in 'The Conversation'.