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The requirement of Royal Assent for bills which have passed through our democratic institutions is well known. Those amongst us who favour the constitutional monarch remind others that it is a power only in the symbolic sense: assent has not been refused since the reign of Queen Anne. And those amongst us who prefer our politics not to be confused with genetics comfort ourselves – although sometimes this comfort is not enough – with the reminder that it is a power only in the symbolic sense: assent has not been refused since the reign of Queen Anne.
One point upon which republicans and monarchists might agree is that it is right that both the existence and occasions of exercise of this power are publically known. They might also agree that this is an instance of an important general principle. For, if we are even to begin to engage in sensible debate about the relation between monarchy and constitutional democracy in the 21st Century we must have a good understanding of the extent of the Monarch’s powers – symbolic and real – over the content of our politics. A discussion which takes place in the dark is unlikely to shed much light.
It is with this principle in mind that we should consider the details which have emerged in the past two weeks concerning a quite different political power vested in the Monarch. It is, according to documents recently made public, an established convention in relation to those bills which affect the ‘personal interests’ of the Queen, or the Prince of Wales that the consent of the relevant party is required before such bills are introduced to Parliament. This is the requirement of Royal Consent, as distinct from the requirement of Royal Assent.
The scope of the requirement is broad and includes, in the case of the Monarch, all bills which affect the prerogative, hereditary revenues, personal property as well as other personal interests of the Queen. The jurisdiction of the Prince is associated with the Duchy of Cornwall. It is narrower in certain respects than that of the Queen, but is considerable nonetheless. The Prince’s approval has been requested in relation to draft bills on matters as diverse as gambling and the Olympics. He has been asked to consent to at least 12 bills in the last two sessions of Parliament. Quite apart from its scope it is worth emphasising that the content of the power is absolutely damning: it is not simply that the relevant bill fails to become law if consent is not given, although this is implied. It is that the bill cannot even be properly debated by our elected politicians.
Royal Consent has not been given to bills on at least three occasions since 1990. The most notable refusal was in relation to the Military Action Against Iraq (Parliamentary Approval) Bill which sought, four years before war was eventually declared, to transfer the power to authorize military strikes in Iraq from the Monarch to Parliament. Debate stalled after the first hearing and, because Royal Consent was not given, the bill was dropped before its second hearing. It is worth noting that aspects of the media mis-described the situation as one in which the bill was not granted Royal Assent.
Indeed, one of the most extraordinary aspects of the whole scenario is that the government has done its best to keep the details hidden: it has aggressively fought a freedom of information request filed by John Kirkhope, a legal scholar, concerning the requirement. First ordered by the Information Commissioner to reveal the details of the 30 page internal guidance concerning Royal Consent, the Cabinet Office appealed to the information tribunal and lost there too. This, then, is an aspect of our political landscape the knowledge of which it is thought better that we do not have.
Is there anything to be said in favour of the constitutional situation? Buckingham Palace has made clear that on all occasions where consent has been refused by the Queen that this has been on the advice of the government. The Prince’s spokesperson, by way of contrast, has refused to comment on whether he has ever declined to consent and if so under what conditions. But even if we are to assume that he too has never refused to consent absent government advice there remain two very good reasons why this knowledge should not placate us.
First, the fact that actual exercises of refusal to consent have taken place on the advice of government does not entail that the requirement has not conferred considerable power on the Royal Family. The extent of the influence which is granted by a political power should be measured not just in terms of its actual use, but also in terms of its potentiality. Even if consent has not actually been refused with regard to a particular bill, the fact that the relevant parties have the capacity to refuse bestows on them significant political influence. Daniel Greenberg, a former Parliamentary Counsel, said the following: “It is something of a nuclear-button option that everybody knows [The Prince of Wales] is not likely to push. But like the nuclear deterrent, the fact that it is there influences negotiations.”
The second point is this: even if we are to assume that the power associated with the consent requirement lies de-facto with the government it remains objectionable, for it amounts to a selective veto over Private Members’ Bills. Consider again the situation surrounding the Military Action Against Iraq (Parliamentary Approval) Bill, a private bill introduced by Tam Dalyell. Here the requirement of consent in relation to the prerogative was used by Tony Blair’s administration so as to ensure that Parliament did not debate the propriety of war power remaining with government. This constitutional anomaly merely cements the already considerable power of government within our constitutional system.
There are times at which debates between monarchists and republicans have been accused of generating too much heat and too little light. This case is different. We are just starting to get light on the situation. We would do well to accompany it with some heat.
Tom Adams is a Hauser Global Fellow at New York University.
Suggested citation: T. Adams ‘Royal Consent and Hidden Power’ UK Const. L. Blog (26th January 2013) (available at http://ukconstitutionallaw.org)