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Nick Barber: Can Royal Assent Be Refused on the Advice of the Prime Minister?

Nick1There is a very good article in the most recent edition of the Law Quarterly Review.  It is by Rodney Brazier, and is concerned with the nature and mechanics of royal assent.  It is a fascinating read, and, as with all Brazier’s work, characterised by a dry wit.  There is, however, one claim, made almost in passing, that I think is mistaken.  Brazier addresses the question of when, if ever, a monarch could properly refuse to give assent to legislation.  He rightly concludes that it is almost impossible to imagine situations in which assent should be refused, but leaves open the possibility that it might be appropriate for the Monarch to refuse assent if advised to do so by her Ministers.  In suggesting that royal assent could be refused on ministerial advice Brazier is not alone.  The assertion has also been made by Geoffrey Marshall in Constitutional Conventions, and Adam Tomkins in Public Law – and may, for all I know, have been made by others, too.   On the other hand, Anne Twomey (in an article in Public Law in 2006) argued that the issue remains open, and gives a number of examples, mostly from Australia, which suggest the Monarch need not accept the advice of her Ministers to refuse assent.  So which position is correct?  If the Prime Minister (or the Cabinet, collectively) advised the Queen to refuse to give her assent to legislation, what, constitutionally, should she do?

Before I set about answering this question it might be worth explaining why I think it is important.  It sounds like a piece of constitutional arcana: the chances of the issue arising seem remote, given that the Prime Minister is Prime Minister because he or she normally has the support of the Commons.  But it could become very important very quickly.  The days when one party dominated the Commons seem, for now, to be over.  It is easy to imagine a minority government facing legislation they disliked, or to imagine MPs stuck in an unwanted coalition becoming increasingly willing to defy the party whips.  The Fixed-term Parliaments Act makes it less likely that such a vote would trigger the resignation of the government, but the Prime Minister might still seek to use the royal veto to stop the bill becoming law.  The issue might also become important if there was an attempt to codify the constitution.  If the convention was included in our new, written Constitution, how should it be expressed?  Would the Constitution effectively give the power to the Prime Minister to veto legislation?     But finally, as well as potentially important, the question is also interesting: it turns on the interpretation of a convention, and forces us to consider what criteria a successful interpretation would meet.

Interpreting conventions is a tricky business. Sir Ivor Jennings famously asserted that there were three elements to a convention: there were precedents, the actors involved must believe themselves to be bound by a rule, and there must be good reasons for the rule.  Geoffrey Marshall advanced a similar understanding of conventions, but did so more pithily: conventions are, wrote Marshall  ‘…the rules that the political actors ought to feel obligated by, if they have considered the precedents and reasons correctly’ (at p. 12, and also here at p. 39).

I have explored the nature of conventions at great length in The Constitutional State.  For our present purposes, though, the question turns on the role that a reason plays in our understanding of a convention.  It is only once we have identified a reason for the convention that we can start to interpret it.

Now, some hard-nosed political scientists would argue that interpretation is impossible, partly because they would reject the inclusion of a requirement of a ‘reason’ within the definition of a convention.  All we – we as academics – can do is describe the actions and beliefs of those within the political community.  It is not for us to seek to resolve uncertainties around the rule by trying to interpret it.  There is certainly some merit to this position.  After all, one of the core features of a rule is that it has an existence separate from the reasons that may underpin it.  A rule can exist, and continue to shape behaviour, even if the reasons for it have disappeared or, indeed, never existed in the first place.  It would seem unnecessarily confusing if, when providing an account of the British constitution, we refused to recognise a convention that those acting within the system followed just because we could not see a reason for their adherence to the rule.

Does this mean that consideration of the reasons for a convention fall beyond the capacities of those seeking to understand the constitution?  First, the line between the descriptive and the evaluative is notoriously hard to draw.  Even the driest account of a constitution needs to pick and choose to a certain extent.  A description of the British constitution that resolutely refused to select between competing interpretations of its rules would be worthless – radically undermined by the inclusion of crazy understandings of the constitution.  And it would also be incomplete.  A good description of a convention should try to identify why the rule is valuable.  Part of this can be done by looking at why those following the convention think it is valuable – if they have given any thought to the matter – but the further question of whether they were correct in their beliefs would remain open.  A good account of a convention would also address this issue.

A second explanation for why we – that is, those who read a blog of this type – should try to identify a good reason for a convention is that we are part of the constitutional community that contains the rule.  The political pressure that secures obedience to convention comes from our community. Our understanding of the convention may, then, affect how those in power understand the rule.  It would be hubristic to suppose Her Majesty is an avid reader of this blog, but we can be fairly certain that her office will have filed a copy of Professor Brazier’s article in some drawer, waiting for the day when there is a dispute over the exercise of royal assent.  Whilst the conclusions of an anthropologist, studying the rain-dance of an Amazon tribe, will not affect the practice she studies, the conclusions of a constitutional lawyer on the meaning of a convention may well help shape how those following a convention understand the rule.  This influence brings responsibility: we have an obligation to our community to identify bad or pointless conventions and, also, to explain why good conventions are worth having.

The correct understanding of the convention of royal assent requires us, as Ronald Dworkin would say, to put the rule in its best light.  If we are able to identify a good reason for the rule we can – sometimes – then resolve ambiguities or uncertainties around the rule by reference to this reason.  What, then, is the reason for the convention on royal assent?

Those who argue that the Queen should accept the advice of her Ministers do not explain at any length why they adopt this interpretation of the convention.  Perhaps the best explanation of their understanding is that they group the convention on royal assent along with the rest of the conventions surrounding the prerogative powers.  Practically all of the Queen’s prerogative powers are now exercised on the advice of Ministers, normally the Prime Minister.  The prerogative can be used to appoint ministers, declare war, annex territory, sign treaties, and many other things besides.  That the Queen no longer has any discretion about the exercise of these powers is important because it upholds democratic government.  Ministers are accountable to Parliament and, ultimately, to the electorate, for the ways they use these powers.  In the words of Walter Bagehot , a republic has insinuated itself beneath the folds of a monarchy.

But does this reason justify the inclusion of royal assent within the group of prerogative powers that are exercised on ministerial advice?  It is hard to see that it does.  Now the convention is operating against democratic values, rather than upholding them.  Rather than supporting parliamentary government, it would undermine it.  The point of the convention on royal assent is to uphold the primacy of the democratic element of the constitution in the making of law.  But just as it would be undemocratic to allow one person – the Monarch – to veto legislation, so too it would be undemocratic to give this power to the Prime Minister.  In short, when presented with a bill that has passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers.  There is no room for discretion.   On its best interpretation, this is what the convention requires: if the Monarch were to accept the advice of her Prime Minister on this issue, she would be acting unconstitutionally.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘ Can Royal Assent Be Refused on the Advice of the Prime Minister?’   UK Const. L. Blog (25th September 2013) (available at

21 comments on “Nick Barber: Can Royal Assent Be Refused on the Advice of the Prime Minister?

  1. Ollie Capehorn
    September 25, 2013

    This was a very interesting read, but the last paragraph (that the convention would be operating against democratic values) made me think.

    What if the Prime Minister sought to use this power to veto a law that ran contrary to democratic values, or undermined a parliamentary government (say, for example, the ‘Suffrage based on wealth Bill’ or the amended Fixed-term Parliaments Act, increasing the term from 5 to 50 years)? Would the monarch not be in breach of her duty as a constitutional safety net to not accept the Prime Minister’s petition in these instances?

  2. Hugo Cyr
    September 25, 2013

    Barber’s analysis is spot on for the Canadian context where the franchise, freedom of expression and term-limits of 5 years are entrenched in the Charter of Rights and Freedoms.

  3. Prof. Adam Tomkins
    September 25, 2013

    Interesting stuff, Nick, but how does your conclusion square with the ruling of the Upper Tribunal in the Evans v Information Cmr [2012] UKUT 313 (AAC) case which Rodney Brazier and I appeared in? The Tribunal rightly accepted Rodney’s evidence (which, so far as I recall, was not contested by any party) that “the cardinal convention” is that the Monarch acts on ministerial advice: see the discussion at paras 76 ff of the decision. The Tribunal’s subsequent discussion of the “tripartite” convention, that the Monarch has the right to be consulted, to encourage and to warn, reinforces the conclusion, it seems to me, that the correct answer to your question is that a Monarch formally advised by her Prime Minister to refuse royal assent to a Bill would be acting constitutionally in doing so. The PM would then be liable to account to the Commons for his advice. You may also like to note that the Tribunal discusses the “good constitutional reason” element of conventions at paras 106 ff of its decision in Evans.

    To my mind, Evans replaces (or, at the least, supplements) Lord Widgery’s judgment in the Crossman Diaries case as the leading authority on the constitutional relation of convention to law, at least in the context of conventions pertaining to the Monarchy.

    • Constitutional Law Group
      September 25, 2013

      Hello Adam.

      The full quote from that paragraph reads:

      “The cardinal convention is the name given by Professor Brazier to what he described as the most important convention of the British constitution. It requires the monarch to act on, and use prerogative powers consistently with, ministerial advice. Such advice is usually given by the Prime Minister on behalf of the government. There are certain exceptional circumstances where the cardinal convention does not apply, but they do not arise in this case.”

      The question of royal assent falls into those exceptional circumstances, acknowledged, but left unspecified by, the court.

      Of course, even if the court had royal assent in mind when making its pronouncement, its decision still would not amount to an authoritative interpretation of the convention. Conventions are found in the practices and attitudes of the political community. A judge’s interpretation of a convention may be influential, but it is not legally binding on actors within the constitution. In rare cases – like Evans – it may be that the judge’s interpretation of the convention has legal implications, but only because it engages some other legal right.

      If, which was not the case, a judge of the Upper Tribunal had, in passing, voiced an opinion about the correct interpretation of royal assent that differed from the account I gave in the post, that interpretation would not bind the Monarch. (I notice that royal assent is mentioned in the judgment, but only to report your reporting of Vernon Bogdanor’s comment on it.) It would be a serious constitutional mistake to confuse the role of judges when interpreting laws and their rare role when interpreting conventions.

      There may also be other, rare, situations where the Monarch should decline to follow the advice given by the Prime Minister – though I am less confident of these than of the example of royal assent. A Prime Minister who is about to step down might seek to advise the Monarch on his successor. But if the Monarch knew that there was another MP who commanded the support of the majority of the Commons, she should (must) ignore this advice.

      Nick Barber

      • Law & Religion UK (@FCranmer)
        September 26, 2013

        I’m not sure that the assertion in Evans that “A Prime Minister who is about to step down might seek to advise the Monarch on his successor. But if the Monarch knew that there was another MP who commanded the support of the majority of the Commons, she should (must) ignore this advice” is necessarily correct. The alternative view is that the Monarch should (must) act on ministerial advice and it would then be for the House of Commons, in a vote of confidence, to support the Monarch’s choice or not.

        Or am I missing something?

  4. Constitutional Law Group
    September 26, 2013


    The final paragraph of my reply to Adam is me, rather than Evans. It is unclear what the convention requires here. O. Hood Phillip’s text on the constitution writes that a retiring Prime Minister is probably not entitled to advise (in the strong sense) the Monarch as to the appointment of his successor. My guess would be that the Monarch has to invite the MP she thinks commands the support of the largest number of MPs in the Commons to become PM. The out-going PM is entitled to make recommendations (as are we all), and – normally – it will be obvious whom his successor should be.

  5. Aquila
    September 27, 2013

    The question is who has the ultimate control over legislation. A traditional analysis is that all governmental power is entrusted by the people to the queen in her political capacity to exercise on their behalf. The Crown only legislates with the consent of the people, as represented in Parliament, and the Lords and exercises all other executive powers on the advice of and by her ministers, who are the proper judge of where the general public interest lies. Whether or not to legislate is however her decision on the advice of her ministers, and the government therefore has the ultimate control over the legislative timetable and passage of legislation and can withdraw government bills, at least, at any time up until Parliament acts, which of course requires royal consent. If the government does not consider that it is in the public interest that Parliament should act on any other bill, it is not obvious why they should not be able to prevent royal assent, even if the House of Commons and the Lords were content with the legislation. If it were otherwise the House of Commons and Lords would be usurping the role of government. An interesting question is what she should do and on who’s advice she should act, if there was a question as to whether the voting process in the House of Commons or Lords had been corrupted by improper motives or fraud and whether in those circumstances her decision could be reviewed, and if so by whom.

  6. Martin Holterman
    October 5, 2013

    Just for a bit of comparison from another constitutional monarchy: Even though the Dutch constitution does not say, it is interpreted as allowing the royal assent to be refused. This is always done on the advice of the government. It hasn’t happened in my lifetime, I think, but the textbooks say it happened five times in the last century. The correct response in such a case is for parliament to vote the government out of office and replace it with another, or for the government to dissolve parliament. (In practice, quite likely both would happen.)

  7. Constitutional Law Group
    October 7, 2013

    Anthony Bradley comments:

    I fully endorse Nick Barber’s appreciation of the article by Rodney Brazier on this subject in the Law Quarterly Review earlier this year. However, I part company with Nick Barber in wishing to give support to Rodney Brazier’s view that there might be circumstances in which a Prime Minister might properly advise the monarch to withhold the royal assent, and that in such situations it would be proper for the monarch to accede to this. This view is set out (I hope without too many qualifications) in Bradley and Ewing, Constitutional and Administrative Law, 15th edn, at page 21 with the conclusion: “While the Queen may not of her own initiative refuse the royal assent, the position might be different if ministers themselves advised her to do so, although this advice would have to be defended in Parliament and would be highly controversial”.
    In discussing such issues as these, we are in an area where conduct of key state officers is essentially governed by convention, and the difficulty is to imagine a situation in which co-operative action is required of several holders of office but something has occurred that raises a question for those officers as to what they should do: because of the unusual event, officer A does something unusual that is arguably improper on ‘constitutional’ grounds, and places officer B in the difficulty of deciding whether simply to accept what A has done and comply, or, if not, to take action that might conceivably (in a royal assent scenario involving action by other officers in the Royal Household and in Westminster) lead to similar difficulties for officers C, D and so on. Subordinate officers may perform their duty by advising that what is normal should be done, and (if the advice is not taken) gritting their teeth in complying or resigning if it’s all gone too far. All this would be affected by the events leading up to the crisis, and the appraisal by those concerned of whether those events justify some unprecedented action or actions – and of what media and public reaction there may be.
    In the situation under discussion, we have an apparent conflict between two propositions: (1) the monarch performs her public functions on the advice of her ministers; (2) the royal assent has since 1707 always been given to a bill that has in identical terms been approved by both Houses. I am not persuaded that the second statement can be given the binding content that Nick Barber suggests. I wonder whether, even in the 21st century, the sequence of events in 1707 might give a pointer to the kind of unusual event that might justify a departure from the usual course of affairs – but I accept that the difficulty of deciding whether unusual conduct is justified will be intensified if the event is overlaid by partisan political considerations.

  8. neal
    April 3, 2014

    What about the situation where the monarch, in giving royal assent, would be breaking their oath of office, such as what happened when the queen gave royal assent to joining the EU, thereby handing sovereignty to a foreign power?

  9. Tintin
    July 20, 2015


    In 1954, the Clerk of the House of Commons stated:

    “The Queen, in giving her Royal Assent to Acts of Parliament, does not depart in
    any way from the convention that the Queen acts on the advice of her Ministers. The submission to Her Majesty by the Lord Chancellor (a member of the Government) of the list of bills to receive the Royal Assent accompanied by a draft Commission implies that the Queen is advised to give her assent to them and the Government would have to accept full responsibility for advising the Queen to give her assent.”

    Thus the Government could block a bill from becoming an Act. But that would result in negative publicity.

  10. Tintin
    July 21, 2015

    Oh my, Anne Twomey has the exact opposite information from 1972:

    It says: “In 1972 a member of the British public, Mr McWhirter, wrote to the Queen arguing that she should not assent to the European Communities Bill 1972 because it would involve a breach of her Coronation Oath. The United Kingdom Law Officers’ Department suggested that he be advised that ‘it is an established convention that the Royal Assent will not be refused to bills which have been passed by both Houses of Parliament and which Ministers advise should receive assent.’8 The reference to Ministers advising upon assent was later deleted from the draft letter because the Lord Chancellor’s Office, upon undertaking further research, discovered that ministerial advice is not in fact tendered before royal assent is granted.9 Instead the letter to Mr McWhirter stated that ‘it is an established constitutional convention – indeed (it might be said) a custom of the realm – that the Royal Assent is not withheld from Bills which have been passed by both Houses of Parliament.’10”

    Thus there is ambiguity: one piece of information from the legislature (1954) stating that the executive does counsel the Queen, and another from the executive (1972) stating that they don’t!

  11. Tintin
    July 31, 2015

    It really seems absurd from a foreign point of view. A constitutional convention had already been in force for nearly 300 years, it had been described in textbooks of law, it had been taught almost as an axiomatic truth… And then a member of public wrote a letter to Buckingham Palace. Only then did the staff there start examining how the process really works. This is possible only in Britain, I guess. 🙂

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