The great abdication kerfuffle
Вставка
- Опубліковано 11 вер 2024
- This video (sparked by a media kerfuffle claiming the King was about to abdicate - which wasn't true) looks at the question of whether the abdication of a British monarch can occur without legislation. It discusses the precedents and in particular the legal and constitutional issues concerning the abdication of King Edward VIII and the effectiveness of his abdication in the Dominions. It explains why some of those issues wouldn't arise in relation to a (most unlikely) abdication of King Charles III and that the simpler procedure of an abdication on his own motion without ministerial advice or legislation would probably be sufficient.
Your constitutional commentary and education is exceptional. Thank you.
Thanks. Glad you find it useful.
Very interesting. I suspect a Regency here in 🇬🇧 in likely however, say within 10 years or so. Presumably the office of governor-general would remain unaffected in those circumstances.
Regency is a bit complicated in the Realms. Check out my earlier video from 7 February on this:
ua-cam.com/video/6QUYO1Z81Nk/v-deo.html
If you really want to know more, see my article 'Regency in the Realms - Dealing with an Incapacitated or under-age Monarch' in (2016) 27(3) Public Law Review 198, or the freely available version on SSRN: papers.ssrn.com/sol3/papers.cfm?abstract_id=2893920.
I just ran across your channel by accident. I can see it will rapidly become a favourite. I've been fascinated by the constitution ever since I read 'Laws and Flaws: Lapses of the Legislators' by Edward Iwi when I Was a boy some 65 years ago.
Terrific! Glad you enjoy it - there's plenty of material there, and so much more to say.
If the throne passes to the King pursuant to the provisions of the Act of Settlement, I'm unclear on how the King could simply decide not to abide by the legislation and for that decision to be sufficient. In the absence of a statutory mechanism providing for abdication, wouldn't the law remain in effect until a further legislative act essentially changed the line of succession? Or is inheriting the throne more akin to a 'right' that can be waived, rather than an 'obligation' that can't be set aside without some further legislative amendment?
It seems to me that the safest route, for the removal of doubt, would be to amend the Act of Settlement, with similar legislation passed in each of the King's realms. I imagine, both to put an abdication beyond legal doubt, and for the optics of each Realm asserting their separate and sovereign status, this would be the most likely approach in the unlikely event that the King decided to abdicate.
Yes it's a shame that after Perth they didn't introduce a legal right in all realms for the monarch to abdicate. Presumably the Queen didn't request it because she didn't want to pursue it herself or be seen as open to the idea, and/or was unwilling to make abdicstions more common in future
The practical reality is that if the king has been murdered, run away, or otherwise no longer available or prepared to be the King, then some formalesque proceedings will be found to accommodate that.
I agree that Charles would never abdicate, despite that it would have been much better for the institution for him to never be King in the first place, and pass on the baton at the time. He is plainly as steeped in the British traditions as anyone could be.
I don't think it has anything to do with him being a tradition follower, more likely due to the fact he is inherently self-serving and whatever he does, no one will ever forget Diana. He should never have inherited. On that we agree. Charles was always going to show himself up.
Thank you for another very interesting video!
I notice that you did not mention that South Africa has not been a rhealm since 1961.
The Irish Free State is also no longer a dominion/realm. There has been quite a lot of change over the years, with some departures and others becoming independent realms. Can't mention all these things in a video or it would go on forever!
Thank you, that was interesting, though I don't agree that the Act of Settlement allows a monarch either to abdicate or to be passed over as successor to themself. Debatably, it (and amending legislation such as the various Succession to the Crown Acts that followed the Perth Agreement) say that such and such a person is the monarch, with no choice in the matter.
I'd just like to add that for the King to abdicate because of age or ill health is not only of arguable legal possibility (perhaps requiring enabling legislation), but also _unnecessary_ . The provisions of the Regency Act (1937) allow the King to declare himself "not available for a definite cause" or even infirm in mind of body, whereupon his duties and responsibilities as monarch would be transferred to a regent (in the current situation, the Prince of Wales). That is, the law makes a provision for the King to retire in ill health or infirmity that does not require an abdication.
Yes, I dealt with the regency law in a previous video - but it does give rise to some problems regarding the realms. As for 'choice', an heir can always cause himself or herself to be disqualified by converting to Catholicism, for example.
@@constitutionalclarion1901 Could the monarch abdicate by converting to Catholicism?
@@brettevill9055 That would certainly trigger a constitutional crisis.
I think William wants to be King suddenly and wants his dad to abdicate. King Charles is going to improve his health from here on and hopefully he can get to enjoy being King for a change. Hope so anyway.❤
Thank you Professor Twomey, might I ask, have you ever discussed the laws of succession to the British crown, requiring a child to have been born of the body, meaning the naturally conceived & carried to term by the wife of the husband. It’s an aspect of law few know of and when the topic arose a few years ago most had no idea. If you haven’t, when you have the time would you please consider doing a video on that?
Thanks. No, I haven't looked into that angle yet. Mostly its the legitimacy aspect that catches people out. You would be amazed by how many people contact me to claim they are the true monarch because of some affair a monarch had decades or centuries ago. They get very upset if you say it doesn't count if the child is born outside marriage!
Thank you very much for your presentation. You made it very easy to understand and I enjoyed it.
You missed out the abdication of an absolute monarch in modern times, the abdication of pope Benedikt XVI. in 2013. The catholic church had simply to accept his abdication and Franciscus had been elected in usual course as the new pope. Any non-constitutional monarch may simply maintain that god advised him to abdicate and therefore everybody else in his state has no choice but to accept it. In other words: An absolute monarch could abdicate because he could do whatever he likes to do.
I am waiting for a "common" constitutional monarch to make a claim on human rights e.g. to abdicate or (more likely) to marry a partner of his own choice. Some monarchs in Europe need to gain approval of parliament or government for their future husband or wife. I think every constitutional monarch enjoys human rights as most European countries enshrined them more or less in their own constitutions and as they signed for in international treaties. In result every constitutional monarch can abdicate because nobody must do forced labour.
When Elizabeth II. stopped to be head of state of Fiji we have no special problems because it is similar to loose control over another country in the course of a military defeat. She saw that her case did have no chance to prevail there so he accepted the inevitable to avoid damage to her tenure as a constitutional monarch.
Just my 2 cents.
Popes, of course, operate under different constitutional arrangements. But it does expose the fundamental premise that unless you have a system of slavery, you can't force a person to perform a job. If they refuse to do so, and the job needs to be done, then you have to find someone else to do it.
I don’t see how an instrument of abdication could bring about a demise of the Crown, for the purposes of the Act of Settlement, absent legislation or some common law rule that allowed it. Otherwise, the only way to effect a voluntary demise of the Crown would be for the King literally to commit suicide.
Some people do take that view, which is why some jurisdictions in Australia legislated to make it clear that abdication did result in a demise of the throne. But it is also the case that statutes are not usually interpreted in such a way as to compel a person to perform personal services. Hence, it is likely that a court would interpret the relevant legislation as providing for a demise of the Crown if a person refused to perform the role (eg fled the country) or formally abdicated.
Until the first minute had elapsed, I thought you had come into possession of a DeLorean.
I fear not. Although when I first checked online to see whether rumours of abdication were circulating, I saw a post by someone saying that Nostradamus had predicted that King Charles' reign would end in 2024! That really was a 'back to the future' moment, because I thought Nostradamus had been pretty much abandoned as a phenomenon in the 1980s.
Yes Nostradamus!! Predicting a Queen dying when she is 96 enough said. I also don't think Prince Harry was very impressed with the idea he was going to be King!!! (According to the same gentleman). I enjoyed your video very much.❤
Given each Australian state may be a separate realm, would the monarch need to abdicate from the crown of each state?
No one really knows. I guess the monarch would just abdicate in relation to all his or her realms, without specifically naming them, just to be sure.
In the event of abdication, does the Crown pass automatically to the next in line (as if the sovereign had died) or does there need to be some sort of active acceptance on the part of the new sovereign? In the example of the Edward VIII abdication, if the then Prince Albert did not want to succeed Edward VIII or was found unsuitable by Ministers to do so (as is sometimes claimed), would he have become King George VI regardless upon the signing of Edward VIII's abdication and have then needed to then abdicate himself (and presumably on behalf of the then Princess Elizabeth and Princess Margaret) after a reign of seconds/minutes so that the then Duke of Kent could become King? From memory William III and Mary II were formally offered and accepted the Crown by Parliament but that is not a particularly relevant example to the House of Windsor in 1936 or 2024.
In the case of Edward VIII, there was legislation concerning the effect of the abdication. Section 1 of His Majesty's Declaration of Abdication Act 1936 states that the abdication is to take effect immediately upon royal assent being given to this Act, and that this will have the effect that 'His Majesty shall cease to be King and there shall be a demise of the Crown, and accordingly the member of the Royal Family then next in succession to the Throne shall succeed thereto'. The legislation could also have altered the succession to pass it to someone else if Parliament had so chosen, but it did not.
You would think that if he was to step aside for the day to day role, it would be just a regency situation and there is no need to abdicate. Sounds like the Australian media is jumping at shadows again.
Yes, I agree. Regency is far more likely (which I told the media folk who contacted me), although it does raise particular problems in relation to the realms, which I explained on an earlier Clarion video.
I think a lot of the MSM are at the moment and with good reason - no information coming out.
Morganatic Marriage? Wallace Simpson to David. Please explore
I'm genuinely curious as to what would happen if a referendum were held in Australia and the populous states voted yes and the rest voted no. Would Australia break apart then, or would it become a weird diarchy with both a King and President as co Heads of State...
A referendum in Australia at the national level only passes if it receives the overall support of a majority of voters as well as a majority of voters in a majority of States (i.e. 4 out of 6 States). If it does not satisfy both majorities, the referendum fails.
As for a republic, under the 1999 republic referendum, the then Queen would have been removed as head of state at the national level, but would have remained Queen in relation to each of the Australian States at the State level of government (represented by a State Governor) until such time as the State, under its own Constitution, terminated the link. In some States that would have required a referendum, but in others it could have been done by a vote of the State Parliament. (I was the person in NSW who was in charge of undertaking the legal aspects of this, had the 1999 referendum succeeded, so I know quite a lot about it.)
The Queen would only have had a role in relation to State matters, not Commonwealth matters. Her role was largely confined by the Australia Act 1986 to the appointment and removal of the State Governor on the State Premier's advice.
What would happen then if the State Governor went rogue? By that I mean if he/she was a royalist and they decided to be obstructive.
Can a State unilaterally declare it's independence?
@@kylephillips6027 Probably not, at least not legally. The preamble to the Act establishing the Constitution asserts that the Commonwealth is "indissoluble" and no mechanism otherwise exists for independence of a State. In any case, WA voted to secede in a 1933 referendum which ultimately was not carried out.
I thought I had already commented! and then checked and was like"huh i thought i had already " anways i was just thinking of the fiji coup when you uploaded this because I was in a library and came across some books about the queen.
I think the palaces instience on secrecy screws them there.The Queen abdicitng in protest of racism and some of her other actions such as in grenada would make the monarchy look good if more well know IMO.
you know better then me[and probably everyone who doesnt work or has never worked for the monarchy and a good dealof them too ] of course and im probably wrong but I disagree on the abdication process you outlined needing to name all the realms.
The new tuvlau consitution enacted in 2023 states that "the royal majesty of the united kingdom " is there head of state and so in tuvalu him abdicting as king of the UK would automatically make Willam King of Tuvulu. As well it is my understanding some of the realms in 2011 preferred to simply state that as there monarch is automatically the same person as the monarch of the UK they didnt need to do anything. althrough i think this was probably also a political decision.
Thank you for the excellent video as always!
Yes, the laws in some of the Realms automatically designate whoever is the sovereign of the UK as the head of state of the Realm. But nonetheless, it would be wise to avoid all ambiguity and make clear that any abdication applied equally to each of the Realms in accordance with its own laws.
@constitutionalclarion1901 that makes sense.
could I suggest a topic please?
Go ahead. I have a list of future topics already, but am happy to add to it if it is something within my expertise and looks like it will have broad interest to others.
@constitutionalclarion1901 thank you ! could you do a video on if Can australian states secede? reason I ask is because Canada and America both had recent controversies over the equivalent. American mainstream view is absolutely not without some form of consitutional amendment or revolution, while the Canadian supreme court says it can be done if negotiated. As a fellow federalist english speaking country, I was curious about what the situation Is in Australia and figure it's probably been attempted one way or another
Smashing!
If it's necessary that abdication would require legislation (and constitutional legislation at that) to make it effectual in all the realms, as a West Indian, what's the likelihood that the other realms in the West Indies who don't need a referendum to become republics would take the opportunity to abolish their Crowns given it'd be the same amount of effort legislating the abdication vs becoming a republic?
Not all the realms require legislation. Some just recognise whoever is the monarch of the UK as their head of state, so it depends. A good guide is those that legislated to change the rules of succession back around 2013-15 so that males no longer took precedence over females in the line of succession (and some provisions re marriage).
In any case, legislation to give effect to a republic can be complex and controversial, as it raises questions about how the head of state is chosen, who chooses the head of state and what powers they should have. It is much easier making a change to the royal succession if you don't have to address such other matters.
That was very interesting thank you
On/off topic: If Australia was to divorce from the British Crown, I imagine that the former colonies (in the form of the current states and territories) would become embarrassing vestiges of the former situation (as with the 13 former colonies/states in America) and thus the opportunity of getting rid of a tier of government would or should be taken at the same time as the final rift. I write as a pom who is fascinated by the political situation here - especially due to the seemingly permanent "conservative" coalition which exists even when the combatants are out of office and not in the process of seeking it. ps Covid showed up those colonial borders in sharp relief!
The issue of what happens to the Australian States if Australia becomes a republic at the national level remains a difficult one. Each State has a separate relationship with the monarch. In 1999 the republic referendum only sought to apply at the national level and did not attempt to cut the links between the Australian States and the monarch. However, it was assumed that if the republic referendum was popular enough to pass at the national level (which also requires majority support in a majority of States), most States would voluntarily terminate their links with the Crown. Moreover, it was also assumed that the then Queen would not want to continue on as Queen of Tasmania or Queen of Western Australia, and would pressure any remaining monarchical States to terminate the links out of respect for her wishes. As the referendum failed, none of this was tested. But it remains a relevant issue for next time.
@@constitutionalclarion1901 Thanks, I was not aware of the need for a majority in each state for the republic referendum to pass. ps It is fascinating to see how power structures set up in an almost ad hoc manner become so entrenched despite their seeming obsolescence in the face of changes in technology and culture.
If Charles abdicated, would he have to separately abdicate as King of Australia or would that happen automatically? Would the Australian Parliament have to vote to accept the abdication or to appoint his successor?
Does the Australian Parliament have any role at all, or are we deprived of any choice about who becomes King of Australia?
Would each state and territory have any role in appointing the King in that state?
In your history of living kings of England being deposed, there is one other case, namely that of Henry 6 and Edward 4. In this case it was reversed later and then re-reversed!
Yes, I didn't go through everyone who had been deposed, as there are a few - just those where abdication was at least in question. The other one I thought of was Lady Jane Grey, who claimed and then renounced the throne. Not sure it was a voluntary abdication, though!
What do you think are the chances of the realms become republics on the next succession?
I think it really depends on the politics of the day in the realm and the constitutional mechanism for change. In some realms it is relatively easy, with just a law being passed by Parliament. In other countries, like Australia and Canada, it is a lot more complex because of the federal system and the constitutional method for change. I don't think that much turns on who the monarch is (unless, of course, it was someone regarded as fundamentally offensive by the realm concerned).
@@constitutionalclarion1901 Thank you. While American I must admit I find British and Commonwealth constitutional issues fascinating
@@amcalabrese1 Excellent! There are plenty of videos for you to enjoy and more to come.
Abdication in Britain is seen the same as Lesbianism was - non existent. LOL
Ahhhaaaaa! So if Australia were to have two coup d'état then Charles III, on the Fijian precedence, would abdicate as monarch and head of state for Australia and we could become a republic. That would be much easier than having another referendum don't you think? 🤔🫢🤨😬🤬
That would lead to a civil war.
As a constitutional lawyer, I strongly support the rule of law and oppose revolution. But I'm taking your comment as a light-hearted aside. Even then, however, revolution isn't always enough - see Grenada and Sierra Leone for interesting examples. The real problem re Fiji was the pressure on the Queen to take positive steps to amend the Constitution, and to do so in a way that would have caused outrage in another Commonwealth country - India. It was this looming conflict which was the last straw. If you are interested, I deal with the other examples such as Grenada and Sierra Leone in my book 'The Veiled Sceptre'.
South Africa became a Republic in 1961. Not sure why you'd want to follow Fiji's example instead 😉
Rhodesia is an interesting example. After Ian Smith’s Government declared independence and the Governor-General was, if I remember correctly, placed under house arrest, there was no suggestion that the Queen should abdicate. She continued to maintain the position that she was the only lawful Sovereign of Rhodesia. Eventually, if I remember correctly, Ian Smith’s Government did eventually accept the position and a new Governor-General was sent out and duly assumed the powers of the Sovereign once again, before legally handing over power to a democratically elected President of the new Republic.
@@Mark3ABE Interesting because it was unilateral, yes. However, it *was* short-lived with Rhodesia agreeing to return to colonial status comparatively soon after. Reportedly mainly because of international pressure, as all except Portugal and South Africa withdrew their diplomatic presence there.
Unless you meant Zimbabwean independence?