King Charles III’s cancer diagnosis will turn minds to the question of what happens if he becomes unable to fulfil his constitutional duties. Buckingham Palace has announced he will continue performing his official paperwork and his weekly meetings with the prime minister throughout his treatment.
But what happens if he becomes seriously ill? There are three options: counsellors of state, regency and abdication.
Counsellors of state
- First, King Charles can delegate some or most of his royal functions to counsellors of state, as happens most commonly when he is travelling overseas.
- Two counsellors of state act jointly in exercising royal powers such as assenting to laws, receiving ambassadors and holding Privy Council meetings.
- The counsellors of state are the spouse of the sovereign and the next four adults in line of succession to the throne – being Queen Camilla, Prince William, Prince Harry, Prince Andrew and Princess Beatrice.
Regency
- The sovereign does not control when or for how long a regency occurs.
- The UK’s Regency Act requires Prince William to be regent, as he is the next adult in line of succession to the crown.
- The Regency Act does not give the regent powers in relation to realms such as Australia and New Zealand.
Abdication
- This leads to difficult questions about how an abdication would operate in relation to each of the realms.
- Abdication would therefore raise difficult questions about whether there needed to be a separate abdication of the King of Australia, to trigger the application of the rules of succession that are now part of Australian law, or whether covering clause 2 of the Constitution, which defines the sovereign by reference to Queen Victoria’s “heirs and successors in the sovereignty of the United Kingdom”, would apply.
Consequences for Australia
- If King Charles were incapacitated and counsellors of state or a regent were appointed, would this cause any real problem in Australia?
- The King’s only remaining substantial powers with respect to Australia are the appointment and removal of the governor-general and the state governors.
- The governor-general’s term is expected to expire in the middle of the year.
- It would involve each state enacting a law requesting the Commonwealth to enact a law that recognised the authority of a regent to exercise the sovereign’s powers with respect to Australia.
Anne Twomey has received grant funding from the Australian Research Council and occasionally does consultancy work for governments, Parliaments and inter-governmental bodies. She has also written books about the constitutional aspects of the Crown.
