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Jeff King: Can Royal Assent to a Bill Be Withheld If So Advised by Ministers?

An article in the Sunday Times by Professor Richard Ekins and Sir Stephen Laws QC advised that the Monarch could withhold Royal Assent to a bill passed if advised to do so by ministers.  Robert Craig  has also argued for that position in a blog post, making clear why in his view that is the democratically legitimate position.  Professors Mark Elliott and Thomas Poole both refute these views, but recognize a prima facie tension between a constitutional convention that the Monarch follow ministerial advice on the one hand, and a convention that the Monarch almost automatically give Royal Assent to duly passed bills on the other.  Poole assumes for the sake of argument that they might be in conflict, and argues that were it so, the convention on Royal Assent would prevail.  I agree with him so far as that argument goes. (Professor Poole also alludes to the view that I detail further below as probably the better view). Mark Elliott recognizes the tension but says it would be a mistake to see an actual conflict between the conventions.  He argues that the convention on following ministerial advice simply does not apply to the exercise of Royal Assent, for ‘There is absolutely no uncertainty when it comes to granting royal assent, and so Ministerial advice is beside the point.’  I agree with Professor Elliott’s conclusion but want to illustrate it in a way that addresses more fully some of the arguments to the contrary.  I argue that the key distinction here is that the convention on ministerial advice does not apply to the Crown’s legislative function when the Monarch acts as Crown-in-Parliament. It is reserved for most of her executive functions regarding matters outside the legislative process, chiefly for those functions exercised in what is often called Crown-in-Council. Let’s take the most obvious starting point. Every Act of the UK Parliament commences with the following preamble:

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

The role of ministers is conspicuously absent in this formula.  Note that the Commons and Lords not only provide ‘consent’ but also ‘advice’ in the matter, and she acts by the authority of that composite Parliament. Anne Twomey has written a magisterial book covering the law and practice in Westminister systems around the Commonwealth: The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018). She confirms that as a matter of practice in the UK, Royal Assent is given by the Queen signing letters patent prepared by the Clerk of the Crown and no advice is given by ministers. (p. 627; see also the Royal Assent Act 1967).  She recognizes that there is a paucity of any precedents on the question of whether consent can be refused on the advice of ministers.  But there is some UK practice of a less dramatic kind. At pp. 628-29, Twomey  recounts an occurrence that is highly material to the present question in the UK:

The British position was clarified within the British Government when preparing a response in 1972 to a letter by a British subject contending that the Queen should refuse assent to the European Communities Bill 1972. The subject, Mr McWhirter, argued that the grant of royal assent would be in violation of the Queen’s Coronation Oath as the bill would fetter the powers of Parliament. The first draft of a response to this complaint stated that it is an ‘established constitutional 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.’ This was later corrected, upon the advice of the Lord Chancellor’s Office, on the ground that ministerial advice is not tendered in relation to the grant of royal assent.  The letter, as altered to state the correct position, provided 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’.

This is the closest we have to an official pronouncement on exactly this subject, opined on by the then Lord Chancellor, confirmed by letter from the Monarch.  In another case recounted by Twomey, the Governor General of New Zealand was advised in 1877 by then Prime Minister George Grey to refuse assent to a Bill that had passed through the New Zealand parliament prior to Grey taking office. The Governor refused this advice, arguing that the Bill must be opposed in parliament and not by way of advice to him to refuse assent.  When Prime Minister Grey complained to the UK Secretary of State for the Colonies about the issue, arguing that the Governor was constitutionally obligated to follow ministerial advice, the Secretary of State backed the Governor and rejected the Prime Minister’s contention. (pp. 646-647) Professor Twomey’s book is relied on by Robert Craig for the view that the Queen must withhold Royal Assent on ministerial advice.  But her own view is different, and in my view comes across differently in her book. In her discussion of the issue of ministerial advice to refuse assent, she concludes her own analysis of the issue by questioning the salience of the very distinction between responsible or representative government that Craig relies on in his argument:

The critical question is whether a vice-regal officer is still obliged to act upon the advice of ministers to refuse assent if those ministers appear to have lost the confidence of the House or at least failed to hold its confidence in relation to the particular bill. The principle of responsible government is a two-way street – while the head of state must act upon the advice of responsible ministers, ministers must maintain their status as responsible to Parliament in order to be entitled to give that advice. The whole raison d’être of responsible government is to give primacy to Parliament by ensuring executive accountability to it. It would seem illogical, therefore, for the principles of responsible government to be relied upon to override the will of Parliament.

Twomey also quotes a 2013 blog post by Nick Barber at length, which argues that Royal Assent should not be withheld in such a situation but follow by automatic operation of convention. That concludes her discussion of that particular issue. Indeed, she has written again recently in a blog post in Australia confirming that in her view, ministerial advice to refuse Royal Assent should be ignored and would be politically foolish. It is at any rate in those discussions that Twomey has, as did Nick Barber in 2013, addressed the argument that the refusal of royal assent would be democratically appropriate on the theory that we have a responsible rather than representative government. That argument, as I understand it, assumes that the Commons can only be taken to express a formal lack of confidence in a Government by passing a motion of non-confidence. But there is no reason to take that view, for, as Twomey observes, it can and historically has been found in relation to particular bills as well.  The Fixed Term Parliaments Act 2011 expressly enhances the power of the Commons to disagree with the Government without asking it to resign – and it has used these kinds of powers in this regard on numerous occasions in the present Parliament.  The Wright Reforms to the House were also premised on the assumption that the House’s powers against the Government should be strengthened in ways more diverse than the blunt tool of non-confidence: see Rebuilding the House (First Report, Session 2008-9, HC 1117). In short: there are several ways in which the House of Commons can express a lack of confidence in a particular measure, Bill, or general conduct of business. The disapplication of Standing Orders and the passage of a Bill contrary to the Government’s wishes are cases in point. To be fair, Twomey does acknowledge academic views that support the view that the Queen should heed ministerial advice: ‘The predominant academic view, which is strongly influenced by an aversion to the prospect of the exercise of any reserve power, is that the Sovereign and her vice-regal representatives must act upon the advice of responsible ministers.’ (pp. 622-623) In a recent letter to the Times, a significant number of senior constitutional lawyers took the opposite view (one that in fact aligns with Twomey’s own view). That suggests that the view Twomey refers to is predominant in the printed scholarly sources to which she quite properly refers.  That is a far cry from what is the dominant view among present scholars, most of whom never imagined such an issue called for an explicit view.  At any rate, the ground stated for the view Twomey discusses as predominant is what needs to be noted here. It is fear of the ‘reserve power’, i.e. the power of the Monarch to withhold royal assent without ministerial advice. Precisely that kind of power has been affirmed by scholars like Rodney Brazier, and countenanced by Geoffrey Marshall.  And that is not a remote concern.  Much of Twomey’s analysis considers situations where the reserve power could be exercised without ministerial advice, including in cases where the Monarch or her representatives would come to their own independent view of whether the Bill satisfies legality and validity requirements (pp. 652ff) or subverts the principles of representative democracy or human rights (pp. 664-672). Brazier has been cited often for the claim that Royal Assent can be withheld on ministerial advice. But will those advocating the Queen’s power to withhold Assent now also subscribe to Brazier’s view that the Queen has the power to act as the ‘ultimate guardian of the constitution’ and refuse assent to a Bill she considers, on his theory at any rate, to be ‘a permanent subversion of the democratic basis of the constitution’?  Whether or not we live in a parliamentary democracy turns on the answer given by people in authority to that question. The view of the signatories of the letter to the Times seems clearly to be ‘no’ – insofar as the letter states that the Queen’s role in relation to a passed bill is ‘purely ceremonial’ and that, in common with the statement on the website of Parliament, Royal Assent is a ‘formality.’ Much of the debate has thus been concerned with whether the Monarch could refuse royal assent even where ministers advise her to grant it. The case for following advice there is democratic. But in my view it is superfluous.  The advice of both Houses of Parliament provides the necessary and sufficient democratic authority.   The legally salient distinction here is the Queen’s legislative function as Crown-in-Parliament, and its difference from her executive functions often descried as Crown-in-Council.  This does not deny that the Sovereign as ‘Crown’ follows advice in matters connected to calling, dissolving, or proroguing Parliament, or in respect of certain appointments (e.g. of peers to the House of Lords).  But those are not her role in the legislative process. Royal Assent is an instance of a prerogative power to which ministerial advice does not apply but to which other constitutional conventions apply.  It is in this respect much like the convention that governs the appointment of a new Prime Minister following an election. There is no ministerial advice to be given, at least to the extent that such would draw the Queen into party politics: see the Cabinet Office, Cabinet Manual, October 2011, p. 15. Rather, the convention is that she appoints the person who is in the best position to receive the majority of support of the House of Commons.   Here, as with the convention of Royal Assent in respect of her legislative function, the constitutional convention goes with the grain of a representative democracy and governs her use of the prerogative power entirely independently of Government views. My claim is therefore that there is no convention that ministerial advice be accepted in relation to exercise of Royal Assent, for the Queen follows, as the preamble to all enactments states, the advice of the two Houses of Parliament and not the advice of the Government.   The proffering of ministerial advice may in some kinds of cases be permissible. It has been made in various cases elsewhere in the Commonwealth and in some places is explicitly incorporated into the legislative process.  In the UK, however, the Monarch is not bound to accept that advice. It is a separate question, in fact, and not explored seriously here, whether in circumstances such as the present, it would be unreasonable and hence unlawful for ministers to advise the Queen to withhold consent. To do so would draw her into a political dispute, it would imply wrongly that she is bound to follow ministerial advice, and it would lead to a constitutional change in the settled practice being led not only without parliamentary support (as is required in the Miller case) but exactly contrary to the expressed wishes of the two Houses of Parliament.  In my view,  furthermore, ministerial advice forms no part of the legislative process in the UK and hence is not protected from judicial scrutiny by Article 9 of the Bill of Rights 1689. Whether any legal dispute arising under these or other terms would be regarded as justiciable by the courts is yet a further matter, also for another day – one that hopefully never comes.

Jeff King is a Professor of Law at the Faculty of Laws, University College London.  He thanks Anne Twomey for comments and Robert Craig, Gavin Phillipson, Tom Hickman QC and Tom Poole for previous discussions.

(Suggested citation:  J. King, ‘Can Royal Assent to a Bill be Witheld If So Advised by Ministers?’ U.K. Const. L. Blog (5th Apr. 2019) (available at:

10 comments on “Jeff King: Can Royal Assent to a Bill Be Withheld If So Advised by Ministers?

  1. Gary Phillips
    April 5, 2019

    Neither the view of the Lord Chancellor’s office expressed in 1972 nor Twomey’s book pays proper regard to the doctrine of the royal seals (see Maitland Constitutional History of England Cambridge 1908 p202).

    Leaving aside the situation where the Queen gives Royal Assent sitting on Her throne in her Parliament (which the present Queen has never done in the United Kingdom), Royal Assent is given under the Royal Assent Act 1967 superseding the Royal Assent by Commission Act 1541. Both of these Acts require Assent to be given by letters patent under the Great Seal.

    By section 2 of the Great Seal Act 1884 (with the exception of certain documents which customarily passed the Great Seal under the Lord Chancellor’s direction):-

    “A warrant under Her Majesty’s Royal Sign Manual, countersigned by the Lord Chancellor, or by one of Her Majesty’s Principal Secretaries of State, or by the Lord High Treasurer, or two of the Commissioners of Her Majesty’s Treasury, shall be a necessary and sufficient authority for passing any instrument under the Great Seal of the United Kingdom”

    Note the people who can authorise the passing of the Great Seal; the Lord Chancellor, Secretaries of State, the Prime Minister (as First Lord of the Treasury), the Chancellor of the Exchequer (as Second Lord) and the government whips who are the Junior Lords of the Treasury.

    That means that at least one government minister takes personal responsibility for the Queen giving Royal Assent on each and every occasion. If none of the Queen’s ministers will countersign the warrant to affix the Great Seal, the only possibilities for gaining Royal Assent are for the Queen to change her ministers or possibly for the Queen to take a trip to the House of Lords.

    • Rich Greenhill
      April 8, 2019

      An interesting point. I hope you’ll forgive me if I include a few stumbled-upon references and peripheral information that might be helpful to casual readers interested in this old chestnut.

      Certainly the Clerk of the Crown has dual loyalties as both a servant of the Crown in ancient office and permanent secretary to the Lord Chancellor in the Ministry of Justice.

      However, section 2(1) of the Great Seal Act 1884, cited above, continues:

      “, according to the tenor of such warrant; Provided 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.”

      No doubt Secretaries of State and HM Treasury do not customarily involve themselves in Royal Assent formalities, though the Secretary of State has pre-eminence in treaty-making and other prerogatives. Whether the Lord Chancellor is actively involved in seeking Royal Assent is a question of custom and modern practice which could of course be answered by the government.

      In the absence of such an answer, so far as I can see the indications are that the Clerk of the Crown operates through the above proviso – “under the [general] authority…of the Lord Chancellor…as heretofore” – rather than in response to the Lord Chancellor’s particular direction or warrant for each Royal Assent.

      In support of this, Anson* states that there are (only) four “modes in which authority is given for affixing the Great Seal”:

      – a fiat (where the Lord Chancellor, Attorney-General or Speaker issue a warrant on their own authority without involving the sovereign)

      – an Order in Council (signed by the Clerk of the Council, for proclamations)

      – a sign manual warrant (where The Queen signs only a prior warrant), and

      – a sign manual warrant preceded by an Order in Council.

      Anson adds, in a footnote:

      “In the case of Letters Patent empowering Commissioners…to give the royal assent to Bills, the sign manual warrant is a part of the document, or rather the King’s signature, as well as the Great Seal, is affixed to the Letters Patent.”

      The implication is that, by virtue of prior custom (and the saved effect of the Royal Assent by Commission Act 1541 s. 5† which required the King to sign with his own hand) no ministerial warrant or countersignature is required for Royal Assent.

      This is demonstrated by a specimen Royal Assent,‡ showing:

      – at the top of the first page The Queen’s signature or sign-manual,

      – on the second page the Wafer Great Seal and printed surname of the Clerk of the Crown in Chancery authenticating the document,** and

      – on the third page the schedule listing the Acts.

      No ministerial signature is present and the wording of the Letters Patent†† makes no reference to ministerial involvement.

      None of which is conclusive but may be suggestive that neither The Queen nor the Clerk of the Crown look to ministers for advice on Royal Assent, though no doubt timing and coordination are matters on which government and parliamentary clerks routinely but informally liaise.

      * W R Anson, The Law and Custom of the Constitution, vol 2 part 1 (4th ed, 1935, by A B Keith), chap I sect iv § 5 (B) p 68
      † 33 Hen 8 c 21 (s 5) This might appear to be contradicted by references elsewhere to Crown Office fees for “royal assent” (eg 1881) but on careful consideration the surrounding items are ecclesiastical and it seems therefore that these are references to the sovereign’s assent to the appointment of bishops, not to legislation. Also of interest on procedural informalities when bills are inserted or deleted from Letters Patent even after the Queen’s signature (though sadly silent on the Lord Chancellor’s personal involvement): Francis Bennion on Modern Royal Assent Procedure at Westminster “a striking illustration of the extent to which Royal Assent has become a mere formality” (p 6).
      ‡ Royal Commission of Assent to the Life Peerages Act 1958
      ** In accordance with what are now rules 2 and 5 of the Crown Office (Preparation and Authentication of Documents Rules) Order 1988
      †† As now prescribed by the Crown Office (Forms and Proclamations Rules) Order 1992

      • Gary Phillips
        April 9, 2019

        Thank you for your post. I think you are probably right that Royal Assent passes the Great Seal under the proviso to section 2(1) of the 1884 Act.

        You raise the question of the Lord Chancellor’s active involvement in the Royal Assent process.

        May I refer you to the Crown Office’s General Guidance for Warrant’s and Patents p1.


        These are single documents. The Queen signs the Commission itself. Commissions are used, for example, for Royal Assent (to Acts of Parliament), to give The Queen’s approbation to the Commons’ choice of Speaker, and to appoint deputy Speakers in the House of Lords. Commissions are submitted direct to The Queen by the Lord Chancellor. They are Wafer Great Sealed but they are not recorded on the Patent Roll.”

        This document was made available in response to an FOI request in 2012

        This effectively restates the point I was making. An individual Minister is taking responsibility for each grant of Royal Assent.

      • Richard Greenhill
        April 9, 2019

        Thank you, Gary, for the further procedural information. So the Lord Chancellor does have a customary direct albeit informal role. If we can also apply the reference on page 6 of the internal guidance, made in the context of Counsellors of State, then the Lord Chancellor’s covering letter to The Queen is itself sent under cover of a letter from the Lord Chancellor’s permanent secretary (Clerk of the Crown) to The Queen’s private secretary. It remains unclear what happens if the Lord Chancellor is out of town, but the ordinary practice evidently provides a determined Lord Chancellor with means to subvert Assent – unless the Clerk pre-emptively subverts by writing directly! On the other hand, returning to Jeff’s marvellous blogpost, nothing in the words of enactment or the Royal Assent documentation suggests that ministerial advice or approval is sought or given. (I see that last night’s Royal Assent was certified to the Speaker by the Deputy Clerk of the Crown with the permanent secretary presumably being kept busy enough running the MoJ.)

  2. Modicum
    April 6, 2019

    “The Fixed Term Parliaments Act 2011 expressly enhances the power of the Commons to disagree with the Government without asking it to resign”

    This seems to be a popular view. But I would have to disagree.

    The sole topic of the 2011 Act is the circumstances in which a general election is triggered.

    It does not purport to change anything about the circumstances in which a government or prime minister is required to resign.

    The Act merely provides that if a motion of no confidence is passed (using certain specific wording) then there must be a general election unless, within 14 days, a motion of confidence is passed.

    Beyond that the Act is entirely silent on the subject of confidence motions, prime ministerial resignations, and government formation.

    The Act does not state that, going forward, the House can *only* withdraw its confidence in the government by passing a motion of no confidence in a particular form of words. And there is no express provision in the Act that would abolish the longstanding convention that a government defeat on the budget or another major government policy is equivalent to a vote of no confidence.

    You might argue that the Act has *implicitly* changed the old conventions. I would also disagree with that proposition, but the point is open to debate.

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  6. Robert Craig
    April 10, 2019

    In his blog post above, Professor Jeff King has responded to two recent posts I have written on this blog, the first on royal assent and the second on the distinction between responsible and representative government.

    The bulk of King’s response criticises my reading of a chapter on royal assent in The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018) by Professor Anne Twomey in the first blog (which King did not link to).

    King claims that Twomey’s view ‘comes across differently’ to my portrayal of it. This post specifically denies this claim to the extent that it suggests I misread or misrepresented Twomeys view. I am strongly of the view that King did not mean to imply that my reading *deliberately* misrepresented Twomey’s arguments but nonetheless, clarity on this point is essential. In truth, Twomey’s chapter is marked by a rigorous neutrality from which she rarely deviates. Her thorough and fair exposition of the arguments of both sides allows for alternative readings of her views on the current law.

    Twomey has confirmed to me in correspondence that she thinks both interpretations by me and King may be viewed as correct. This is because she has a policy of scrupulously setting out both sides for the reader to draw their own conclusions. Those conclusions may differ. She makes clear that there is no blanket or automatic rule that the Queen must always grant assent and she cites examples in her book of circumstances when assent may be denied or delayed. She also made clear that her personal view is that in the particular extraordinary circumstances we face, advice to refuse assent should not be given because questions of confidence would arise and the Queen would be placed in an invidious position. Of course, she could not possibly have been expected to predict this particular scenario in her book and she makes clear that she did not express her own view in the book.

    Practice and procedure

    King starts by drawing on Twomey’s exegetical summary of the UK practice in this area. Twomey neither endorses nor disagrees with the procedure she sets out and it is fair to say that the “below-the-line” comments (here is a link) made in response to King’s blog and the arguments by Finnis on this blog suggest that this is an intensely disputed area. The procedural requirements are hardly determined by the one letter from the Lord Chancellor’s office that Twomey quotes. In any event, I did not quote anything on the strictly procedural elements of royal assent from Twomey in my blog on royal assent so this adds nothing to a claim that my blog “comes across differently” to Twomey’s view.

    Responsible versus representative government

    King’s links my alleged misreading directly to the distinction I drew between responsible and representative government in my second post. King is absolutely correct to point out that Twomey disagrees with my view on the effect of the responsibility/representative distinction and he quotes her at length to make his point. However, I did not claim Twomey agreed with my views on responsible government in my second post. In fact I did not mention Twomey at all in that post. I accept that these issues are, however, difficult to disentangle.

    Reserve power of the monarch

    Twomey states that “the predominant academic view, which is *strongly influenced* by an aversion to the prospect of the exercise of any reserve power, is that the Sovereign and her vice-regal representatives must act upon the advice of responsible ministers” (622).

    King claims that the “*ground stated* for the view Twomey discusses as predominant is… fear of the ‘reserve power’, i.e. the power of the Monarch to withhold royal assent without ministerial advice” (emphasis added). Respectfully, King has slightly overstated the case. Whilst concerns over personal exercise may have “strongly influenced” the predominant academic view, Twomey very properly considers the wider implications of that view, including the possibility of ministerial advice to refuse it.

    Clearly then, Twomey nowhere claims that reserve power is the sole “ground stated” for the academic view on exercise of the prerogative power. Indeed, in the pages following the above quotation, she does not discuss personal exercise of the reserve power at all. Her section on potential personal exercise of the power is much later. (633-643). Instead in the following pages she makes a series of broader points that are certainly not limited to the exercise of the reserve power personally. She says that where

    “a new government has been formed which holds the confidence of the House and it objects to a bill passed under the auspices of its defeated predecessor, then there is a stronger argument that its advice to refuse assent to a bill should be accepted, assuming the responsibility of ministers has been established’. (624)

    And, after setting out (without clearly endorsing) Brazier’s view

    “in the case of a hung Parliament, if a bill of significant importance were passed against the wishes of the government, doubts would arise about the responsibility of ministers and whether they were entitled to advise the refusal of royal assent’.(624)

    It is worth noting that Twomey implicitly states here that where responsibility has been established (as seen in the UK in December 2018), advice to refuse royal assent would not be in doubt.

    Elsewhere she says

    “Blanket assertions that assent cannot be refused to a bill passed by the Houses or that the head of state must always act on ministerial advice in relation to the grant of assent to bills are unhelpful and inaccurate”

    Any claim that Twomey unequivocally endorses the view expressed by King, Elliott, Phillipson and others that passage through both Houses leads automatically to royal assent would be precisely the kind of black-and-white view that Twomey expressly denigrates. She may or may not be correct in that, but neither does she wholly endorse the views of the King camp.

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