Constitutional Law Group April 8, 2019 Europe, European Union, UK government, UK Parliament

John Finnis: Royal Assent – A Reply to Mark Elliott

I agree with Mark Elliott in finding my April 1 argument about prorogation and assent astonishing and monstrous, once the argument’s important premises have been omitted, as he has omitted them. And it is left even more objectionable when he has attributed to it a premise, two assumptions, and a goal each far from my thinking and writing. At the root of his misapprehensions is an important mistake about constitutional monarchy.

The premise he attributes to me is that it is wrong for the House to undertake indicative votes, or to set aside Standing Orders to do so. But the operations I was concerned about were something different: to “override Government resistance by contempt rulings, or even by passing in both Houses a Bill for imposing statutory control of our dealings with the EU.” (And though it is generally imprudent for Parliament to micro-manage our dealings with foreign powers, I do not, pace Elliott, see anything constitutionally illegitimate in statutory controls on our dealings with the EU.)

The first assumption Elliott attributes to me is that in these matters, what is normal is normative. To be sure, no one should try to deduce Ought from Is. And everyone should agree that, even when custom and usage are rightly treated, for our common good, as needed for beneficial coordination and therefore normative, there can be appropriate occasions for setting them aside. The Standing Orders and practice of the Commons are not rarely set aside legitimately.

The second assumption attributed to me is that the executive is “the primary constitutional actor” in whose role “Parliament is no more than an unwelcome interloper”. But my works celebrate Parliament’s unconditional supremacy over the executive as a source of judicially enforceable law (which includes also common law subject to, though not derived from, statute), and of statutory boundaries for all executive conduct. And the proper executive, I hold, is that set of ministers whom a majority of the Commons have given their support to without since withdrawing it.

The goal he attributes to my thesis about the legitimacy of brief prorogation in this special kind of circumstance, and (more surprisingly) to my lectures about judicial power, is “executive hegemony”, an “objective of equipping the Government to ensure that it governs on its own terms and that Parliament is denied the opportunity to stop it from doing so.” But I oppose any such goal or objective, which Elliott could scarcely have imagined had he kept in mind the actual premises articulated, or visible, in my Telegraph article.

Here, in ascending order of cumulative importance, are five such premises which have gone missing in Elliott’s critique.

First, the context is a vast, multi-dimensional exercise in foreign policy, not the less so because also uniquely immediate in impact on our law, public finances and, per the Miller majority, constitution. Its multi-dimensionality and international intricacy demands the kind of access to information, and rational deliberation about and responsiveness to information, that only a government (and a dedicated civil service) with 24/7 responsibility can well initiate and process.

Second, the oversight and frame-setting of government that of course our legislature’s elected chamber should maintain, and the framework of law (including statutes once they are enacted) that of course must limit and channel governments’ conduct, have in this great affair of state been elaborately provided for by Parliament itself. My article, pace Elliott, made less of the referendum result than of the Parliamentary approvals that preceded and followed it – and not just the EUNoWA 2017, but also its parliamentary antecedents and then the 2018 Act and the timetables it established both for Parliament and for the legal effects of withdrawal.

Third, the Commons has deliberately chosen to leave our government in the hands of the present set of ministers in preference to any other set that might command the support of a majority for carrying on that government at large. Westminster democracy depends on balancing the elected branch and the executive so that neither can pursue a particular policy without the acquiescence of the other.

Fourth, a fact omitted in Elliott’s account of my argument: the leader of the parliamentary manoeuvres had (in the Commons) identified their purpose as “a fundamental realignment of the relationship between the civil service (!), Government and Parliament”. To show that these manoeuvres and associated Speaker’s rulings coalesce to damage the established constitutional balance, my article cited the cogent paper by Sir Stephen Laws and Richard Ekins. To show that they were constitutionally illegitimate manoeuvres, both their paper and my article considered them, with the rulings, first as each a purposive set and second in their combined effect (not forgetting the manoeuvres’ context: refusal to withdraw confidence and face the electorate).

Fifth, the dangerous combined effect to which my article pointed was not the setting aside of the referendum result – which could be legitimately sought and done by Parliament – but above all the imminent risk that Her Majesty might be confronted with conflicting advice, by the two Houses for assent to a Bill and by her ministers to withhold that assent.

Elliott, like many others, loosely assimilates withholding assent with “veto”. There is a different looseness in my article’s talk (in keeping with just about everyone else’s) of ministerial advice to withhold assent. In the context of the United Kingdom, that phrase overlooks an important fact that differentiates us from countries which share our monarch through Governors-General as well as from other countries which have a Westminster system of responsible government but under a President of some kind. For, as I noted in a letter to the Times on April 6 (scroll down) and the account of assent in Erskine May brings to light, our UK system interposes a politically responsible minister, the Lord Chancellor, between Her Majesty and the two Houses. Submission for assent of a Bill or set of Bills passed by the two Houses is first to the Lord Chancellor, and there is no even conventionally defined period between passing’s completion and the Bill or Bills’ resultant submission by him to Her Majesty. Elsewhere, so far as I am aware, a Bill’s submission for assent is done directly, by some officer of the legislature.

The reason for the difference is evident. A Governor-General or President holds office by appointment made by some politically responsible authority. Not so the hereditary monarch. Hence the exceptionally limited range of discretionary or “reserve” authority attributed to Her Majesty within UK law and conventions, as compared with otherwise similar systems for balancing elections, legislative operations, and the executive.

Elliott argued in January that (i) ministers should never tender advice to the Queen to withhold assent from a “duly enacted (sic) Bill”, and (ii) if they did, she has the constitutional right and duty to “disregard it”. Both theses, especially the second, make light of the variety of circumstances in which there may be live dispute about whether a Bill was “duly” passed, and/or about whether the circumstances as they are evolving during the indeterminate or under-determined period since the Bill’s passing, or in some other unusual way, make assent to it contrary to the public good (including perhaps of the monarchy itself). The idea that the Queen should disregard the advice of ministers – ministers from whom the elected House has deliberately not withdrawn its confidence and thus has left to carry on Her Majesty’s government – including advice about the illegality or constitutional impropriety of a Bill, does not sufficiently attend to the vulnerabilities of and constraints upon a constitutional hereditary monarch.

As if to forestall plunging the Queen into a conflict of advice such as the potentially imminent conflict my article expressed anxiety about (and suggested might be headed off by brief prorogation of an already unusually extended parliamentary session), our historic system puts the Lord Chancellor in a position to delay the submission of the Houses’ “advice”. During that delay, which might even last until the session ends (and with it any Bill not yet assented to), the Queen would not have had any relevant advice tendered to her, either by the Houses or by ministers, and hence would remain above the fray.

Such delay would of course be politically contentious, since for a very long time, during which generations of Speakers and other Chairs have upheld the rules associated with the principles of financial initiative and government control of business, submission for assent has been a formality. Responsibility for the delay would rest entirely with the government of which the Lord Chancellor is a member.

That responsibility, and the lawfulness and propriety of such delay, is all further indicated by the required mechanics of the actual assent, mechanics deliberately retained, as the normal legal requirements for the modern era, by the Royal Assent Act 1967. What is involved is not only the royal signing of the Bill but also sealing with Great Seal, for which, by the Great Seal Act 1884, it is legally necessary to have a warrant countersigned by one or other of a conspicuously political set of ministers: “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”. The live constitutional point, in relation to similar machinery for the Crown’s involvement in our government of overseas territories, was misunderstood by a majority of the Law Lords in Quark Fishing, as was soon acknowledged by an overlapping majority in Bancoult [2008] UKHL 61, who cited ([39]) a paper of mine that summarised (paras. 15-18) relevant considerations and authorities about the interlocking requirements of constitutional monarchy, executive responsibility and elective-legislative control in the United Kingdom’s democracy.

Parliament is not Congress, empowered by Constitution and statute to make laws without or against the will of the Head of State. Parliament makes law – acts as Parliament – only when all three of its elements act in coordination. The Queen’s part in this – her assent – is an act of responsible government performed and performable only on the advice and political responsibility of her ministers.

My Times letter’s thesis was that the passing of the European Union (Withdrawal) (No. 5) Bill defies what Erskine May calls ‘a principle of the highest constitutional importance, that no charge on public funds… can be incurred except on the initiative of the Crown’. Rather like many a private tax-evasion scheme, the Bill seeks to circumvent, evade, various rules that give effect to the principle. It would impose on the Prime Minister the obligation to exercise the Crown’s initiative in initiating the incurring of the expenses of extending EU membership; on that and other grounds, it will of course be contended that the Bill itself is not ‘for incurring’ a charge on public funds. But the scheme’s evasion of ‘a principle of highest constitutional importance’ is quite clear enough to be reciprocated by a constitutionally legitimate political decision to withhold royal assent, not by advice to the Queen but by delay. The delay’s appropriate rationale would be to protect Her Majesty while pushing back against the Commons’ defiance of constitutional principle (and the Lords’ opposition- party-whipped acquiescence in it), while obliging the Commons to face up to its political and constitutional responsibility.

That responsibility, complicated and obscured by the Fixed Term Parliaments Act 2011, is at the root of the present crisis, whose elements and sources make little or no appearance in Elliott’s critique. It is the responsibility to choose between allowing the government its historically proper initiative (no more and no less) in foreign and financial affairs, or finding an alternative set of ministers to undertake that initiative who do enjoy stable majority support, or facing the electorate in a general election designed to choose the government (by choosing members of a new House of Commons).

Author’s note: A few minutes after posting this I realised I was mistaken in saying that the House had already conducted such unusual indicative votes, and I apologise to Professor Elliott for suggesting that he made an obvious mistake in identifying what operations I had in mind. The point about what future operations of the House I was anxious about remains as stated elsewhere in the paragraph and later in the post.

John Finnis FBA is Professor Emeritus of Law & Legal Philosophy at the University of Oxford and Biolchini Family Professor of Law in the University of Notre Dame.

(Suggested citation: J. Finnis, ‘Royal Assent – A Reply to Mark Elliott’, U.K. Const. L. Blog (8th Apr. 2019) (available at https://ukconstitutionallaw.org/))

15Comments

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1

Roger on April 8, 2019 at 1:02 pm
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All I know is that Leavers are having the wedge tapped in deeper and deeper by a duplicitous PM, Cabinet and MPs. It looks increasingly like an establishment plan of manipulation and deceit corroborating with EU leaders to slowly but surely wean the electorate away from its 2016 decision and the undertakings of government and MPs.

Further the establishment actually don’t care that they are alienating about 40% of the electorate, it’s actually a bonus to them as they see Leave voters as of negative importance or perhaps even as the enemy.

There will surely be a cost.
2

Royal Assent and Brexit | spinninghugo on April 8, 2019 at 2:01 pm
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[…] Finnis that were the European Union (Withdrawal) (No 5) Bill to pass both houses, it would be legitimate for the government to withhold Royal Assent. This follows on from his suggestion that the passing of such a Bill should be prevented by the […]
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spinninghugo on April 8, 2019 at 2:14 pm
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Not all of the points above are bad ones, but the core one is.

The Commons does usually decide that the government should have control over the legislative process/ Where it exceptionally decides that it does not wish that to be the case that is legitimate because the Commons has democratic legitimacy. For the government to block that would be illegitimate because it lacks any democratic mandate independent of the Commons.
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Could ministerial advice to the Queen to prorogue Parliament or to refuse assent to a Parliamentary Bill be challenged in the courts? | Brexit Law on April 8, 2019 at 2:22 pm
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[…] latter group, for all the reasons they give, and notwithstanding Professor Finnis’ most recent response to Professor Elliott. I will argue that for the monarch to take either course of action in order […]
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David Howarth on April 9, 2019 at 11:42 am
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On a more technical note, I fear Professor Finnis has confused the Lord Chancellor with the Clerk of the Crown in Chancery. It is the Clerk of the Crown, not the Lord Chancellor, who acts as intermediary between Parliament and the Palace in the Royal Assent process. The Clerk of the Crown is not a politician. The office is held by the Permanent Secretary of the Ministry of Justice, but in this context the Clerk acts not as a civil servant but as a royal and parliamentary officer, as the Attorney-General explained at the Second Reading of the Royal Assent Bill 1967.
I also fear Professor Finnis has misunderstood the role of the Lord Chancellor in the use of the Great Seal. The Seal only comes into the process to authenticate the Letters Patent. As the Royal Assent Act 1967 expressly says, the Queen can still give her assent in person without needing an intermediary (or a seal) of any kind. Moreover, anyone who has ever been to the ceremony in the Lords when she gives her assent by Letters Patent will know that the Queen in those Letters Patent commands the Lord Chancellor to seal them. The Letters Patent are signed first and sealed later. And the sealing is actually done not by the Lord Chancellor but by the Clerk of the Crown using a wafer seal. Professor Finnis has the relationship upside down.
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jfinnis40 on April 10, 2019 at 2:51 am
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I’m afraid it is David Howarth who has things upside down, throughout confusing machinery with constitutional responsibility. My post refers readers to Erskine May on royal assent, which sets out the relevant hierarchical relationship between the Lord Chancellor and the Clerk of the Crown with clarity:

“When Royal Assent is wanted, the Lord Chancellor submits to the Sovereign a list of those bills which are ready for Royal Assent…The list is prepared by the Clerk of the Parliaments. An advance copy is sent to the Clerk of the Crown so that he may include those bills in the Letters Patent by which the Sovereign is to signify Royal Assent…. When the list of bills for Royal Assent is finally settled, the Clerk of the Parliaments signs it to certify the passage of the bills through both Houses, and sends it to the Lord Chancellor.”

Like that page of Erskine May, my post concerned constitutional-political responsibilities; it was not concerned with the elements of the process that are intrinsically subordinate (and in ordinary times operate with little or no personal intervention from those with the final constitutional responsibility), except insofar as the authoritative specification of such elements as seals helped identify the minister(s) with whom a particular responsibility ultimately rests. In the context of a discussion about fundamentals, David Howarth is limiting his attention to what can be seen on the surface of more or less routine proceedings.

Spinning Hugo, too, makes startlingly little, above, of Erskine May’s testimony (“principle of the highest constitutional importance”) to Parliament’s own longstanding self-understanding of the close relation and needful balance between, on the one hand, the democratic legitimacy of individual members capable of combining and parting in unstable ad hoc majorities and, on the other hand, the democratic legitimacy of the government an electoral majority presumptively had in mind to entrust with the coherent conduct of government for so long as no majority is willing to replace it in government or face the electorate again.
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  Gary Phillips on April 11, 2019 at 2:11 pm
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  Prof Finnis’ argument is that a Bill, what became the European Union (Withdrawal) Act 2019 engaged the Crown’s financial prerogatives on the basis that delaying an event that would save public money ie leaving the EU under the European Union (Withdrawal) Act 2017, incurs public expenditure and that exxpenditure should only be incurred at the request of the Crown.
  
  A Money Resolution with Queen’s Recommendation in the House of Commons is an entirely separate Parliamentary procedure from the introduction of a Government Bill. The fact a Bill is introduced by Ministers does not of itself satisfy the financial prerogative. Government Bills need Money Resolutions as much as private members’ Bills.
  
  The EU might now be an expense to the British taxpayer, but so once was Ireland.
  
  In 1914 Parliament passed the Government of Ireland Act; the fourth Home Rule Bill. That relieved the British taxpayer of most of the cost of administering Ireland. On 15 September 1914 what became the Suspensory Act 1914 preventing the coming into force of the Government of Ireland Act passed the Commons and, like the 2019 Act, it did so in a single day.
  
  If Finnis is right, then one would expect to see a Money Resolution with Queen’s Recommendation after Second Reading of the Bill for the Suspensory Act. Hansard confirms that there was no such Money Resolution.
  
  Bills to suspend money saving measures do not engage the Crown’s financial preogatives.
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David Howarth on April 10, 2019 at 10:22 am
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Professor Finnis misses out from the passage he quotes from Erskine May the crucial words ‘or which are likely to have passed by the time Royal Assent is to be declared’. The Lord Chancellor’s job at that stage of the process is to anticipate what the Commons and the Lords might do, not to delay the effect of what they have already decided. The criterion for inclusion in the list is whether bills have been passed or are likely to be passed by the two Houses, not whether the Lord Chancellor thinks they are ‘ready’ in some other sense. They are ‘ready’ when they have been passed.
The fact that all this is in practice done by the Crown Office reflects the underlying constitutional and political position, which is the Lord Chancellor has no discretion at this point of the process, just as the Lord Chancellor has no discretion about sealing the Letters Patent. It is not just an administrative convenience.
One might speculate that the role of the Lord Chancellor in the process derives from the Lord Chancellor’s previous role as Speaker of the House of Lords rather than his or her current role as Secretary of State for Justice. If so, that is another constitutional reason for the whole process being carried out by the Crown Office.
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Royal Assent and constitutional principle: A further response to John Finnis – Public Law for Everyone on April 10, 2019 at 10:31 am
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[…] one of the most recent contributions to this debate, Professor John Finnis, writing on the UK Constitutional Law Association Blog, takes […]
10

Michael Detmold on April 11, 2019 at 3:46 am
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Mark Elliott finds Finnis’s argument that the Government (in the person of the Lord Chancellor) should not have presented the Cooper/Letwin bill for Royal assent, monstrous. Its fault, I think, was not that it was monstrous, it was that it was modest. The problem doesn’t turn upon the breadth of Parliament’s legislative power; which is in this matter as Elliott states it. Rather, the issue is of the executive power and its relation to Parliament.

This question has two aspects: (1) whether the executive power is able to be usurped by a majority of legislators, and (2) whether the control of the Executive by the Parliament in the processes of responsible government can be replaced by an irresponsible Executive. The nub of my argument is in the second of these.

There are two forms of responsibility at issue. First, responsibility to the people. And here it is clear that both a constitutional Executive and the Cooper/Letwin usurper are responsible to the people. But that is not the responsibility implicit in responsible government. The second form of responsibility, responsible government, is that in which a responsible Executive is held to be responsible to the confidence of Parliament. This is a responsibility that the usurper avoids, being responsible in this second sense only to itself – that is to say, not responsible.
I have said that Elliott’s conception of the breadth of Parliament’s legislative power over Brexit is correct. But it is clear that there is now a clash between that (correct) conception of legislative power and the necessary objection to the usurpation of the power of responsible Executive government. That clash can only be resolved by the deepest constitutional principles. I cannot believe that those principles do not include the subtle and complex system of responsible government.

An example of a deep constitutional principle is Stockdale v Hansard (1839) 9 Ad & El 1, which decided that a resolution of the House of Commons was not to be confused with law: what should have been enacted in the constitutional way was presented in the form of a Commons resolution. The Cooper/Letwin bill presented the opposite problem: what should have been a resolution of the Commons directing the prime minister and Executive under pain of confidence, was presented as law.

Finnis was too modest when he based his argument for not presenting the Cooper/Letwin bill for Royal assent on the principle “that no charge on public funds … can be incurred except on the initiative of the Crown…”, for that was but one of the many problems that the abandonment of responsible government will have. (I should add that the Government’s presentation of the bill for royal assent, assimilated the usurper to itself, curing any remaining constitutional flaw – flaw? dare I say, monstrosity?) (Michael Detmold, Emeritus Professor of Law, University of Adelaide)
11

jfinnis40 on April 11, 2019 at 3:19 pm
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The rapid assent to the Bill the evening after this post went up leaves the normative issues as they are set out in it: by that time, helped by Lords amendments during the day, there was (for good or ill) substantial coincidence between the government’s position (on seeking art. 50 extensions) and the Bill’s.

Mark Elliott’s response, elsewhere, on 10 April meets none of the post’s points, and continues his confusion between parliamentary sovereignty and the democratic legitimacy of the Commons (and thus also, as the post noted, between Bills and Acts).
12

jfinnis40 on April 11, 2019 at 4:45 pm
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The inclusion of the words Professor Howarth’s second comment says are crucial in the passage I quoted from Erskine May makes no difference to the relevant sense of the passage or of the procedure. The message which they convey – like other parts of a passage I was quoting to rebut his original claim that I confuse Lord Chancellor with Clerk of the Crown – is that there are to be as few sets of Bills submitted to Her Majesty as is consistent with convenience and other considerations such as urgency.

All the other points in Howarth’s second comment, about absence of discretion in the Lord Chancellor when he submits Bills for assent and when he (or another minister specified in the Great Seal Act) seals the Letters Patent, simply assume the very point that is under discussion as a matter of constitutional principles. Geoffrey Lindell’s detailed and very fair-minded review, “Assent or refusal to assent to legislation – on whose advice?” in Constitutional Law and Policy Review, August 2009, 126-138, stated essentially the same principles and conclusions as I now have, and was well placed to report – away from political tempests such as Brexit – that they are principles and conclusions with the support of “a consensus”.
13

julia waller on April 14, 2019 at 12:53 pm
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First & foremost we need Proportional Representation in our voting system.
We need a different form of rubber-stamping Bills as they go through Parliament, ie: How our Queen ever gave Royal Assent to the Letwin/Cooper Bill a few days ago is beyond me when she made vow at her Coronation to preserve the sovereignty of this country.
Britain is controlled by a rotten Establishment & its people are just waking up to this fact
14

Michael Detmold on April 16, 2019 at 7:49 am
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Mark Elliott in his latest attempt to justify the Cooper/Letwin usurpation of the executive power writes that the justification of the supremacy of Parliament is that Parliament has an independent democratic mandate whereas the Executive does not. This is true. But against it we can say that the Executive has a royal mandate, which the Parliament does not (when it is acting as a Cooper/Letwin usurper). It is the Queen who commissions a certain person to form a government with the confidence of the House; and that person thereafter has a special relation of confidence with the Queen herself. This is not exactly a democratic mandate, but it is a mandate of the same order: the Queen is bound to the people by her oath, and a Prime Minister acting in pursuance of the Queen’s commission is acting within the hegemony of that oath. A Cooper/Letwin usurper cannot act in this way: one of them turning up at the Palace with a bill to be signed would receive very short shrift. By contrast, when Parliament acts in accordance with the principles of responsible government it has the royal mandate as well as the democratic one.
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Joseph Crampin: Precedent for Delaying Royal Assent: A Response to Professor Finnis | UK Constitutional Law Association on April 17, 2019 at 9:00 am
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[…] the Government can properly advise the Crown to refuse royal assent (among others: advocated by John Finnis, Robert Craig; rejected by Mark Elliott, Jeff King and Tom Poole). The aim is to address the […]