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10 OPINION maltatoday | WEDNESDAY • 7 FEBRUARY 2024 Anne Twomey is Professor emerita, University of Sydney • theconversation.com Anne Twomey KING Charles III's cancer di- agnosis will turn minds to the question of what happens if he becomes unable to fulfil his constitutional duties. Buck- ingham 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 be- comes seriously ill? There are three options: counsellors of state, regency and abdication. Counsellors of state First, King Charles can dele- gate some or most of his roy- al functions to counsellors of state, as happens most com- monly when he is travelling overseas. Two counsellors of state act jointly in exercising royal powers such as assenting to laws, receiving ambassa- dors 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. However, Prince Harry is ex- cluded while he is outside the United Kingdom, and in prac- tice Prince Andrew and Prin- cess Beatrice are not called on to act as they are not "working royals". As this left only Queen Camilla and Prince William to perform the role, a law was passed in the UK in 2022 to add Princess Anne and Prince Edward to the list. Counsellors of state may car- ry out most of the sovereign's functions while he is ill, but they cannot dissolve parlia- ment, except on his instruc- tion, and they cannot create peers. Whether they can ap- point a prime minister remains a matter of debate. Most sig- nificantly, they cannot exer- cise powers with respect to the King's other realms, such as Australia. Regency The second option is a regen- cy. This occurs if the King "is by reason of infirmity of mind or body incapable for the time being of performing the royal functions". The sovereign does not control when or for how long a regency occurs. Instead, it is initiated by a declaration of three or more of: the sover- eign's spouse, the lord chancel- lor, the speaker of the House of Commons, the lord chief jus- tice of England and the master of the rolls. The UK's Regency Act re- quires Prince William to be re- gent, as he is the next adult in line of succession to the crown. The regent has the powers of the King with respect to the United Kingdom, but cannot change the order of succession to the crown. The Regency Act does not give the regent powers in re- lation to realms such as Aus- tralia and New Zealand. New Zealand resolved the problem by inserting a section into its Constitution Act which pro- vides that whoever is made re- gent under the law of the UK may perform the royal func- tions of the sovereign with respect to New Zealand. Aus- tralia, however, has done noth- ing in this regard, so a British regent would have no powers with respect to Australia. Abdication The final option for an in- capacitated monarch is abdi- cation. This leads to difficult questions about how an abdi- cation would operate in rela- tion to each of the realms. When King Edward VIII abdi- cated in 1936, it was achieved by both a signed instrument of abdication and the enact- ment of legislation to which the various realms, including Australia, assented. This is not possible today, as the UK can no longer legislate with respect to Australia. 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 wheth- er 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. Because of the potential con- stitutional messiness of deal- ing with the King's role in his 14 realms beyond the United Kingdom, it is likely abdication would be avoided. Consequences for Australia If King Charles were incapac- itated and counsellors of state or a regent were appointed, would this cause any real prob- lem in Australia? The King's only remaining substantial powers with re- spect to Australia are the ap- pointment and removal of the governor-general and the state What happens if King Charles can no longer perform his duties? Charles, joined by the Queen and a member of the clergy, attended a Sunday service at St Mary Magdalene Church in Sandringham, Norfolk