Constitutional Law Group January 26, 2013 UK Parliament

Tom Adams: Royal Consent and Hidden Power

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 21^st 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)

21Comments

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1

Caroline Brook Boysen on January 26, 2013 at 9:51 am
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Glad to learn of this little known fact/distinction. To my mind, the fact that there is a matter of Consent regarding royal interests, along with the more widely known Assent, renders the royal family more of a threat – and a potentially sinister one – than I had imagined. It would be good if this matter were more widely known.
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Constitutional Law Group on January 26, 2013 at 9:59 am
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This is a very interesting issue. One puzzle it raises is over the nature of conventions. It is claimed that this requirement of ‘Royal Consent’ to some bills is an established convention – yet I would bet that few who act within the constitution have ever heard of it. Worse still, I would bet that most constitutional actors (politicians, academics, citizens) would regard the halting of a bill after a request by the Monarch as unconstitutional.

Conventions are social rules of the constitution, rules that bind because political actors within the system accept them as creating constitutional obligations. In contrast to law, which is a formalised system of rules, a ‘convention’ that everyone has forgotten ceases to be part of the system. Can it really be the case that ‘royal consent’ is a convention, when just about everyone acting in the system would regard it as embodying an assertion of a power that runs against the general and clear convention the Queen not interfere in the production of legislation by Parliament?

The supposed convention of Royal Consent may rest on a confusion between laws and conventions. A constitutional law can remain part of the system even if all or most of those in the system have forgotten about it – even if they think that the law runs against the broad principles of the constitution. Silly and offensive laws – like the rule that gives preference to male heirs over female heirs in the line of succession, or the rule that bars the Monarch from marrying Catholics – remain laws and continue to bind because they are part of the legal order. Conventions, in contrast, depend on the continuing acceptance of the political community. They can exist past their sell-by date (when the reason for the rule has disappeared) but it is nonsensical to talk of a rule being a ‘convention’ when it would be generally regarded as unconstitutional by actors within the system, just because at some point in the remote past people thought they were bound by it.

I would suggest – cautiously – that ‘royal consent’ is just a mistake. It embodies a decision by a very small group of state officials – taken largely in secret – to constrain the normal functioning of the legislature. It is unconstitutional for the Queen, even on the advice of her Ministers, to interfere with Parliament’s law-making function. It is also unconstitutional for officers of Parliament to assist in the exercise of this supposed veto power. And it may even be unconstitutional for Members of Parliament to acquiesce in such an abuse.

Nick Barber
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  albert burgess on August 25, 2013 at 10:23 am
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  The statement the Royal assent has not been refused since the reign of Queen Anne is simply not true, Queen Victoria refused the assent to a bill on homosexuality until all references to lesbianism were removed as she did not believe women would do those things. King Edward VII REFUSED the assent outright to what became the 1911 Parliament Act ordering the prime minister Asquith to go to the country on the grounds the bill was unconstitutional and removed a protection from his subjects. Asquith and his ministers went around the country lying about the Lords who thought it beneath them to reply. Asquith won the election and put the bill through, the King in his speech at the opening of parliament said that the only reason he was doing this was at the instruction of his ministers. A clear indication that this was against his wishes.
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Paul Scott on January 26, 2013 at 10:37 am
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Thank you for this – it’s very interesting. It’s worth noting that in Rodney Brazier’s ‘Legislating about the Monarchy’ in the CLJ in 2007, footnote 36 suggests that Dalyell refused on principle to ask for the Queen’s consent, rather than a request being refused. This is supported by a contemporaneous news report, (at http://news.bbc.co.uk/1/hi/uk_politics/320514.stm) which quotes Dalyell as saying “I am not going crawling to the Queen. This has nothing to do with her.” I am inclined to agree with Dalyell, but the distinction between consent not being sought and consent being refused seems to have been lost somewhere along the line.

On the more general point, I am inclined to agree with what I take to be the thrust of Nick Barber’s comment above. Parliament should not allows its own processes to be abused by the executive: if the executive is minded to abuse Parliament’s courtesy in seeking the Queen’s and the Princes’ consent in order to exercise some sort of backdoor veto, then Parliament should resolve not to seek such consent in future.
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  albert burgess on February 12, 2014 at 4:57 pm
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  To by pass the Queen who by Common Law higher law is the supreme governor of England, is to imagine Her Majesty’s death as a fully Sovereign Queen of England. That is the major crime of high treason contrary to the 1351 Treason Act still fully on the statute books and the Common Law of England.
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John D on January 28, 2013 at 9:15 am
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Who elected Elizabeth or Charles to make these decisions on behalf of the UK-wide electorate?
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  albert burgess on February 12, 2014 at 5:07 pm
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  We did! English Kings are part hereditary part elected, up until the reign of James II a Knight in full armour would ride into Westminster Abbey just prior to the Coronation and throwing a gauntlet on the ground would call out. “Are there any foul and base traitors here who contest this princes right to be Crowned King, step outside and we will dispute it” This practice died because William III was elected by the estates of England and the inheritance was laid down by the estates at the same time.
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Aileen McHarg on January 28, 2013 at 11:26 am
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Thanks to all for these illuminating comments. As I understand Brazier’s article, though, this requirement of Royal Consent is not merely a matter of convention, but rather a matter of the law and custom of Parliament. Brazier says (citing Erskine May) that a Bill passed without Royal Consent would be null and void. In turn, it piggybacks on the prerogative power of the Monarch to refuse the Royal Assent to legislation (Brazier explains the adoption of the requirement of prior Royal Consent as being to prevent a later refusal of Royal Assent to a Bill which adversely affected the Crown’s interests). By convention, however, he says, the power to refuse Royal Consent is only exercised on the advice of ministers.

There are a number of issues here. 1. As Paul says, if this is a matter of the law and custom of Parliament, Parliament could resolve to abandon the rule (presuming the government permitted it to do so). 2. While the rule persists, though, is the government nevertheless acting unconstitutionally by advising the Queen/PoW to refuse Royal Consent? Here I would agree with Nick. While there may be recent precedents for refusal, most informed commentators would think that it would fail the Jennings test of there being a good constitutional reason for the rule. If it is unconstitutional to refuse the Royal Assent, it must also be unconstitutional to refuse prior Royal Consent. 3. However, is it unconstitutional to refuse Royal Assent? This does rather muddy the waters regarding the nature of the convention surrounding Royal Assent. Is the correct version of the convention that Assent is never refused or (as with other prerogative powers) that the Assent power is only exercised on the advice of ministers?

My final comment on this is that it is a gift to anyone lecturing, as I was last week, on the advantages and disadvantages of an uncodified constitution. It is hard to think of a better example of the lack of transparency and potential for abuse in our current arrangements.
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  albert burgess on February 12, 2014 at 5:16 pm
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  The assent is not a matter of parliamentary law or convention it is a matter of the common law arrangements of the King, whilst it may be convention not to use the assent or its refusal without the agreement of parliament it is true convention does not equal law. As far as Jennings, Dicey, and more recently Bogdanor they are all guilty of miss understanding the constitution of England. Which places very few limitations on the King and those limitations appear in Magna Charta 1215
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John D on January 28, 2013 at 2:07 pm
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Perhaps parliamentarians should pass an Act detailing the circumstances under which Royal Assent can be withheld? The Act could also include a provision such as that in the event of both houses re-passing the legislation with at least two-thirds majorities that the Head of State must either sign the Bill into an Act or that the requisite majorities make it no longer necessary to obtain Royal Assent to convert a Bill into an Act? This does also now raise the question as to the legitimacy of a hereditary head of state as against a democratically elected one, don’t you think? If we had an elected head of state, the idea of that person being required to provide their consent on matters which affect them personally would be rightly seen as a conflict of interest. Is this not the case in the present circumstances?
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TIM TREUHERZ on January 28, 2013 at 3:59 pm
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The actual guidance from the Office of Parliamentary Counsel (‘Queen’s or Prince’s Consent’) s at

http://www.cabinetoffice.gov.uk/resource-library/guidance-office-parliamentary-counsel

How can this be a ‘mistake’ as Nick Barber suggests? How can this be ‘unconstitutional’, when it is described in guidance from OPC and is inErskine May? Indeed is the word ‘unconstitutional’ valid if the constitution is what works?

Is it perhaps better to regard the issue of consent as the exercise by the Queen and the Prince of Wales as the exercise of prerogative powers rather than the working of a convention? For if such powers are ‘the special pre-eminence which the monarch has over and above all other persons ’ (para 2.4, of the OPC document citing Halsbury’s laws’), then surely the power to give or refuse consent to legislation – which ordinary citizens do not possess – demonstrates such special pre-eminence.

Moreover, if the prerogative powers are ‘the residue of the monarch’s legal authority’ which has survived into modern times without being superseded by statute law or otherwise eroded.’ (para 2.6, citing A-G v de Keyser’s Royal Hotel), then surely this is just such a power. Perhaps the power of consent should be included in the list at para 2.7.

That said, not everyone would agree with the assertion later in the same paragraph that prerogative powers ‘are exercisable for the public good’.

Perhaps the time has come to acknowledge that the Prince of Wales has powers analogous to prerogative powers As to the powers of the monarch, the power to consent to legislation is perhaps just part of the classic textbook description of the monarch’s powers (wasn’t this Begehot?) as the right to be consulted, the right to encourage and the right to warn. Maybe its just that the right to be consulted means rather more than many observers thought it did.

What is the real meaning of the assertion that consent is only ever refused on government advice? If the palace lets it be known that it has concerns about a particular proposal, then a compliant government that is prepared to forego that proposal would simply advise the monarch to refuse consent. The initiative came from the palace; the decision to refuse consent would be based on ministerial advice.
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Adam Tucker on January 29, 2013 at 10:12 am
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What a timely and provocative post. Thanks Tom.

Unfortunately, I don’t think we are dealing with law, convention or a mistake here.

The constitution affords Parliament considerable scope to manage its own affairs and regulate its own procedures. The product of that self regulation, “the law and custom of parliament” is neither law nor convention. It seems like this could be a rather unfortunate exercise of those self-regulatory powers.

Whilst the cabinet office document standing alone could well have been a mistake, and would carry no authority as a source of these rules, it does look like a pretty accurate summary of the underlying procedures. That document is not exactly a model of how to cite your authorities so there’s some reconstruction needed, but for starters Erskine May certainly says the question can’t be put without consent. (I wonder how many editions it’s been in there for?)

So it seems that Parliament has equipped itself with procedures which fetter its own legislative functions through deference to the Queen and Prince of Wales. The examples given in the document are pretty convincing that these fetters operate in real life.

It looks indefensible to me – not just the existence of this power but also its cynical use by the government to thwart inconvenient private members bills.

Reform is presumably possible through Parliament’s (slightly opaque) internal mechanisms. A statute – which would need consent! – would be better.
13

Andrew Le Sueur on January 29, 2013 at 12:35 pm
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This would be a good subject for a short inquiry for the House of Lords Constitution Committee! By the way, in addition to the Parliamentary Counsel guidance mentioned above, the Cabinet Office “Guide to Making Legislation” also deals with royal consent (see ch.17 http://www.cabinetoffice.gov.uk/sites/default/files/resources/Guide-to-Making-Legislation_0.pdf).
14

Andy on March 22, 2013 at 3:26 pm
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It’s all good and right wanting to expose the potential threat of a king or Queen who lets not forget is bound by a coronation oath and has no powers outside of that oath, lex perogativa is part of the common law, which permits Royal prerogative to be used only for the salus populi. But what we have to remember is not only the tyranny of past monarchs, but the potential tyranny by parliament majority. The House of Commons represent the opinion of the people by legal fiction only, it can never perform the function assigned to it by the constitution. Therefore the Queen has a function to prevent the tyranny of parliament as do also Her Majesty’s courts. The proper name for parliament is Her Majesty’s Parliament, it being a third party to Queen and people who are both under a fundamental compact, all oaths of allegiance are sworn to the Queen as a condition of the fundamental compact, this oath must be taken by those returned to the House of Commons. By this the constitution is enforcing the rule of law above the rule of Monarch and the rule of parliament. It is the function of Her Majesty’s office being both her Ministers(servants) of State and officers of justice to uphold the common law above statute, this is known as the supremacy of law. We all know certain political people are in objection to this because they would like to set up a political tyranny. But it can simply be stated that those who operate contrary to our constitution as it is properly recognised by the law of England, (both Monarch and parliament are made by the law) are committing the common law offence of sedition at least and the common law offence of treason in all probability.
Also more modern notions of disturbing international peace and war crimes could be charged against those who conveniently for political reasons misinform or conspire to pervert our countries proper constitution, which is entrenched in, as far as Great Britain is concerned an international treaty which was ratified by the English and Scottish parliaments in 1707. Under English law which is entrenched in this treaty, a King or Queen can be deposed for misgovernment with the agreement of public opinion. And parliaments only duty is to give the general publics de facto consent to taxation and to enforce the ancient rights and liberties of the people which are above parliament. This notion of “unlimited power” by the United Kingdom parliament is total perversion and a dangerous threat to world peace. All the history books, which are a part of our constitution clearly show that her Majesty’s courts of common law(now subverted) can overturn a statute even if both Commons and King have agreed. All judges are infact sworn to do so if a statute attempts to destroy the common law, not to do so is an act of perjury by a judge. Clearly those who seek the rule of faction above the rule of law will attempt to repute this. But to repute this is to repute history itself, parliament can not bind its successors, but common law does bind parliament and the treaty of union does bind the United Kingdom parliament. In the past common law judges have checked both Royal prerogative and majorities in Parliament, this is a fact of law and record. Ultimately the common law belongs to and is owned by the general public as is the very country, King John tried to give away the country, that ended in civil war and the Magna Carta, this signifies the supremacy of law, not King or parliament. The general public even only hold the law in trust for future generations. If people do not want to be a part of our free country they should think about leaving for somewhere more evil and despotic and not set up a faction (unknown to the law) to seek power in an unlimited parliament (unknown to the law). What is convention? when it comes up against the law, it is nothing.
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TIM TREUHERZ on June 4, 2013 at 2:48 pm
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Clause 3 of the Rights of the Sovereign and the Duchy of Cornwall Bill – Removal of Queen ’s and Prince’s Consent – states‘ Nothing in any rule of law, or the law, or practice of Parliament shall require a Parliament to seek the consent of the Monarch, the Prince of Wales or the Prince Regent to the consideration of public bills which pass through Parliament.’
This Private Members Bill, proposed by Lord Berkeley, had its first reading on May 13. No date has been set for se ond reading. Presumably this particular provision – and indeed the rest of the Bill – will not become law without the Queens consent it seeks to abolish. Which is a significant obstacle. I would welcome any comments on this.
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daznez (@daznez) on June 27, 2013 at 10:35 pm
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i only have one question – why isn’t it totally clear exactly what powers each has and who can veto what?
if there weren’t behind the scenes influence and shenanigans going on it would be totally transparent exactly how laws are made,
everyone would know and there would be little confusion.

andy, i agreed with almost everything in your remarkable post up until the part about us not living in an evil, despotic country.
i take it you are paying no attention to the government’s attempts to destroy the welfare state, sell off the nhs (and student loans now,
they are going to be packaged and bundled and sold off as equity credit inertia gumball swaps or something similarly goldman sachsian,)
nor their arming lung-eating al-qaeda linked rebels in syria? all whilst giving the queen and mp’s a pay rise, doing nothing
to curb bankers continued plunder of our wealth and investing nothing in our future.

britain and america are the terrorists that the rest of the world are afraid of. we have become the invading nazis
and have never stopped building empire, and only the people of these countries can do anything about it.
but not while you refuse to recognise the very real danger that faces us and our children’s children.

it is no longer a lone voice in the wilderness, now it is millions, soon to be billions.
deadline day for the old world order – 05.11.13 expect all of us.

peace & love & unity.
17

أبو الفأس القصاب on February 10, 2014 at 6:45 pm
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Hello, everyone. Does anyone know exactly whether the monarch is legally obliged to perform his or her prerogatives only on the government’s advice?
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  Caroline Brook boysen leclercq on February 12, 2014 at 1:56 pm
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  I believe the monarch can, in fact, withold consent and has more power than we imagine, but it has not been used for so long everyone has forgotten. It hasn’t perhaps helped that the Windsors are not the sharpest knives in the drawer and are perhaps disinclined to act from this point of view (fear of misunderstanding) as well as losing out on popularity (upon which they depend). Knotty subject. Caroline Brook Boysen.
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  albert burgess on February 12, 2014 at 4:49 pm
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  There is nothing in the English Constitution or the Common Law arrangements for the King to require the King to rule under the thumb of government. The King is the supreme governor of England answerable not to Parliament but only to God and the English people. Government claim the 1689 Bill of Rights transferred authority from the King to the elected House, it does no such thing the only restrictions on the Kings freedom of action can be traced directly to the limitations King Alfred the Great imposed upon himself when he wrote the legal codes of Alfred (the Dome) meaning doom.
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News: The House of Commons Political and Constitutional Reform Committee Reports on Royal Consent | UK Constitutional Law Association on March 30, 2014 at 3:28 pm
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[…] and Constitutional Reform Committee reported on the practice of Royal Consent. Royal Consent was discussed on this blog in a post by Thomas Carter Adams. The doctrine requires the consent of the Queen, or, in some situations, the Prince of Wales, before […]
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Robert Craig: Why Royal Consent Is Required for the Proposed Article 50 Extension Bill | UK Constitutional Law Association on February 25, 2019 at 11:30 am
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[…] a blog in 2013 on this site, Tom Adam drew attention to a little known procedure in the House of Commons that deals with Royal Consent. It is important […]