affiliated to the International Association of Constitutional Law
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  UKHL 61, who cited () 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/))