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In the unlikely event that it were impossible to determine who is the rightful heir to the British monarchy and the crown went into abeyance, what would happen with the requirement for royal assent? Could Parliament pass laws without assent, would it become impossible to pass bills, or would something else happen?

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Parliament would be able to legislate to choose a claimant, even if there were some irregularity about royal assent. The chain of events could be:

  1. For some bizarre reason there is a genuine doubt over who is the monarch.
  2. Both houses of Parliament pass a bill saying who it ought to be.
  3. The Lord Chancellor, using the Great Seal, seals a document appointing Lords Commissioners for giving the royal assent. Ordinarily this would be after pro forma approval by the monarch and under his or her signature. But the LC is going to do it anyway (perhaps after a Parliamentary resolution giving approval).
  4. Royal assent is given and the bill is now an Act. Procedural issues in Parliament cannot be challenged in court (Bill of Rights 1689) and anything that is officially printed as an Act must be received as such (Documentary Evidence Act 1882). The chosen person is now King or Queen.
  5. Parliament passes another bill saying that happened in steps 2-4 was completely fine and legal, just to make sure. This is given royal assent in the normal way. The Lord Chancellor is now completely immunized if what he did was wrong - and so are the staff of HMSO who printed the first Act.

It feels a bit like a rabbit is being pulled out of a hat... but precedentially speaking, this actually works. All of the steps have been done before, although not recently.

That said, from a Realpolitik point of view, it is all just a bit of theatre intended to cloak the incoming regime in legitimacy. Ultimately, what matters is who is actually accepted, and the legalities follow the event. As John Harington put it (Epigrams, 1618):

Treason doth never prosper, what’s the reason?
For if it prosper, none dare call it Treason.

Still, if such a thing were to happen, these are the kinds of steps which might follow in order to regularize the legal situation.

Side note on abeyance

Formally, the Crown itself cannot fall into "abeyance" because that legal status only applies to certain lower peerage dignities. In English peerage law,

Abeyance [...] can only occur in the descent of a peerage limited in fee simple or in tail general

Francis Palmer, Peerage Law in England (London: Steven and Sons, 1907), p100

The Crown is not a peerage and its descent is governed by statute law, e.g. the Act of Settlement 1701 and the Succession to the Crown Act 2013. A peerage is granted by the Crown and that is why there is a reserve power for the Crown itself to terminate an abeyance if one arises. In Scotland, where the inheritance rules are different, "there is no doctrine of abeyance, and none of the English rules applying to peerages in abeyance apply to Scottish peerages" (Stair Memorial Encyclopaedia volume 16, "Scottish peerage claims").

The nature of the current statutes makes it unlikely that there would be any cause for uncertainty over who is in fact the monarch. The family is well-documented and you just follow the statutory instructions. But let us imagine that for whatever reason, there is some weird series of events where we aren't sure if Queen Alice or King Bob is the correct monarch.

Regency?

Current legislation provides for a regency if the monarch "is for some definite cause not available" for performing the royal functions (Regency Act 1937 s.2(1)). The regent is the next available person in the line of succession. But in a situation where the succession is itself uncertain, this law does not help to resolve it. Supposing that one of the candidates is the monarch - they are both "available", and even if that condition can be finessed there is no outcome other than following the line of succession which is (by assumption) in doubt.

The Great Seal loophole

The best guidance is actually from the illness of George III, who was periodically unable to act as king. Importantly, any Act establishing a regency would need his own assent, which he was not able to give. It could be delivered in his place by Lords Commissioners, but only if they were appointed by the king's letters patent, which again he could not approve. A 1788 plan from William Pitt the Younger, the Prime Minister, was for the Lord Chancellor to apply the Great Seal without royal approval in order to jumpstart the rest of the process. This was actually done in 1811. As described by Sir John Scott when Solicitor-General in 1789,

The Great Seal once put to it gives it all the authority of law, so that no inquiry can be instituted as to the mode in which it has been passed. If letters patent are sealed with the Great Seal without the King's warrant having been previously granted - however criminal may be the conduct of the person who has so acted, they are of full force, and bind the King himself as much as if signed by the King's own hand.

quoted in Debate on the Resolution respecting Letters Patent for opening the Parliament in William Cobbett, Parliamentary History of England, volume 27 col 1155 (London: Hansard, 1816)

Since this was ultimately accepted at the time as something that was legal in an emergency, it probably means that the Lord Chancellor retains the ability. There are some other examples of unauthorized sealings that have been deemed to be legal for the same reason. The Great Seal Act 1884 says that a royal signature "shall be a necessary and sufficient authority for passing any instrument under the Great Seal of the United Kingdom", but also that "any instrument which may now be passed under the Great Seal by the fiat or under the authority or directions of the Lord Chancellor or otherwise without passing through any other office may continue to be passed as heretofore".

So it might even be the case that this is a conventionally acceptable reserve power, and the Royal Assent Act 1967 does not explicitly rule it out. That talks about letters patent signed by the Queen but does nothing to exclude the use of unsigned letters - it was made in order to streamline the notification procedure and does not purport to be a complete code for assent.

The same loophole about the power of the Great Seal is present in the Crown Office Act 1877 for a "wafer seal". This is basically a sticker that can be used instead of the Great Seal according to rules set by a committee of the Privy Council, and (s.5(3)(a)),

It shall not be necessary to the validity of any document to or on which a Wafer Great Seal or Wafer Privy Seal is attached or embossed to prove that the attachment or embossing of such wafer seals respectively was authorised, and no evidence to the contrary shall be received;

The wafer seal is normally used for royal assent commissions in any case - see the 1988 rules which are currently in effect.

But even if the LC is "wrong" to do this, Parliament can retroactively make it acceptable. Equally, if the position of LC were vacant, and the Clerk of the Crown in Chancery (the chief civil servant in his department) used a wafer seal on her own, then as described below Parliament could later deem this to have been legal all along.

A law to regularize a doubtful law

There are several other precedents whereby something irregular can still lead to a normal legislative situation. An important one is the summoning of Parliament following the Glorious Revolution of 1689. James VII and II had de facto abdicated, and a political settlement was reached where the crown would pass to William of Orange and James' daughter Mary as co-monarchs. Primary legislation was needed to bring this about, but there was no Parliament and no proper incumbent king.

What happened was that William summoned "conventions" in England and Scotland, who met in the same manner as if they were Parliaments, and passed various Acts. That included settling the crown on William and Mary jointly. Subsequently, a more "normal" Parliament of England passed the Crown and Parliament Recognition Act, which ordained in relation to the previous convention,

That all and singular the Acts made and enacted in the said Parlyament were and are Laws and Statutes of this Kingdome and as such ought to be reputed taken and obeyed by all the People of this Kingdome.

A similar step happened in the restoration of the monarchy in 1660, with the incoming Parliament passing an act saying that

the Lords and Commons now sitting at Westminster in this present Parliament are the two Houses of Parliament, and soe shalbe, and are hereby Declared Enacted and Adjudged to be to all Intents Constructions and Purposes whatsoever, notwithstanding any want of the Kings Majesties Writt or Writts of Summons or any Defect or Alteration of or in any Writt or Writts of Summons or any other Defect or Default whatsoever; as if this Parliament had beene summoned by Writt or Writts in His Majesties Name according to the usuall Forme, and as if his Majestie had beene present in person at the Assembling, and Commencement of this present Parliament

So, once the political situation has settled down, whichever version of the King-in-Parliament happens to be actually in charge can close the circle and self-declare their legitimacy.

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  • King Bob is ALWAYS the rightful monarch. Commented Feb 22 at 16:22
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By Letters Patent of October 1, 1947, the Governor General has the power to grant Royal Assent, and is normally the person to do this in any case.

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  • I notice however that appointments and commissions are authorized to be made in the monarch's name and on the monarch's behalf. Does that mean that the governor general would be unable to exercise that power while the monarchy was in abeyance?
    – phoog
    Commented Feb 21 at 10:38

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