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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: https://ukconstitutionallaw.org/))