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There 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 http://ukconstitutionallaw.org).