The ‘Cooper-Letwin Act’ (European Union Withdrawal (No 5) Act 2019) may yet come to be known as the constitutional crisis that wasn’t. But, the advocacy by some of the Government’s ability to advise the crown to refuse assent in order to legitimately prevent the Bill from becoming law has provoked significant debate. The object of this post is not to address the question of whether 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 slightly different issue, raised by Professor Finnis, that the ‘Lord Chancellor’ can legitimately withhold Bills from presentation to the Monarch (considered in terms of constitutional principle by Elliott and David Howarth). On this point, I suggest that Professor Finnis’s argument is constitutionally mistaken, as a matter of practice and, importantly, precedent.

Professor Finnis’s Argument

Part of Professor Finnis’s argument that the Lord Chancellor can ‘legitimately withhold’ a Bill from royal assent rests upon the manner in which royal assent is achieved. On this, he advances the following propositions, (1) ‘our historic system puts the Lord Chancellor in a position to delay the submission of the Houses’ “advice”’. (2) The ‘lawfulness’ of the Lord Chancellor withholding a Bill is ‘indicated by the required mechanics of the actual assent’, which are governed by the Royal Assent Act 1967. (3) Although lawful, the act would be politically controversial and political responsibility for this would, under the usual application of the principle of responsible government, rest with the government of the day, of whom the Lord Chancellor is a part.

This argument for withholding assent allows Finnis to avoid the difficulties with asserting the permissibility under constitutional conventions of the Crown refusing royal assent on ministerial advice adverted to by Elliott, Poole and King, among others. However, it rests upon claims about the actual mechanics of the assent procedure that are mistaken. To engage with this part of Finnis’s argument is to step into the more arcane parts of the UK constitution, but in doing so it will be shown that Finnis’s argument about the actual mechanics of the process of royal assent is untenable.

The Clerk of the Crown

Finnis’s claim rests upon the power of the Lord Chancellor in sending Bills for assent when the Clerk of Parliaments signifies that a Bill is ready for assent, as described in Erskine May (24th edn, 643). But, in practice, it is the Clerk of the Crown in Chancery—or his Deputy—who performs this task. As detailed by Francis Bennion, in the practice under the Royal Assent Act 1967, it is the Clerk of the Crown in Chancery who prepares Letters Patent—the means by which assent is communicated by the Crown—, on the authority of the Clerk of Parliaments, to send to the Crown and it is the ‘duty of the Clerk of the Crown to present for Royal Assent all Bills which are ready at the time it is signified’ ((1981) 2 Stat LR 133, 139, 140 emphasis added). In the practice as described by Bennion, the Lord Chancellor is not personally involved in the sending process. It should be added that the Lord Chancellor is also not involved in the sealing of the Letters Patent, nor does he countersign them, contrary to what Finnis suggests: no countersignature is required for affixing the Great Seal to the Letters Patent—another task performed by the Clerk, for which the Queen’s sign manual is sufficient authority. Indeed any function in relation to the royal assent is virtually unmentioned in a 2014 Select Committee on the Constitution Report on the Lord Chancellor (2014-15 HL Paper 75), and the general absence of the Lord Chancellor from the practice of royal assent suggests Finnis’s proposition (1) is somewhat doubtful.

The Clerk of the Crown in Chancery is, however, formally responsible to the Lord Chancellor, according to the Cabinet Manual (see Glossary). But, the Manual also suggests a somewhat unusual position of the Clerk compared with the ordinary position in respect of ministerial responsibility: he is professed to be an officer of Parliament, not of the government. The Clerk of the Crown in Chancery is a specific office of state appointed by the Crown on the advice of the Prime Minister, but its holder has also, since 1885, held the position of Permanent Secretary to the Lord Chancellor’s Department and now to the Ministry of Justice. As permanent secretary, he acts like any other permanent secretary, but in his capacity as Clerk to the Crown his role is somewhat distinctive (for the history of the office, see AF Pollard (1942) 57 Eng Hist Rev 312). As Lord Schuster wrote of the role, the Clerk ‘was personally responsible for observing the proper forms…and was therefore in a sense an independent officer’ ((1949) 10 CLJ 175, 187). Moreover, the capacity in which the Clerk acts in the assent procedure was clarified by the Attorney-General, during the debates (here) on the 1967 Act,

‘[The Clerk of the Crown] is at once not only an officer of the Crown but an officer of both Houses of Parliament, so that there is no derogation in any way of the authority of this House by the proposed machinery.’

To put the point at its lowest, it implies the peculiarity of the responsibility of the Clerk when acting as an officer of Parliament.

There is no suggestion among the authorities that in the performance of this duty there is any discretion on the part of the Clerk not to present a Bill for assent (nor on the part of the Lord Chancellor, either). Anson describes the constitutional position as follows: ‘every Bill which is ready for the royal assent would necessarily be presented to [the Crown] for assent or rejection, and could not be withheld’ (Anson’s Law and Custom of the Constitution, 5th edn, vol 1, 334, emphasis added). Indeed, all the authorities that address the point are to the same effect that to withhold the presentation of a Bill would be unconstitutional, contradicting Finnis’s step (2) (see further below). Anne Twomey goes so far as to say that this is ‘well-recognised’ (The Veiled Sceptre (CUP 2018) 628).

Professor Finnis, however, seeks to make a more subtle point that a Bill can be withheld from assent by way of delay under the Clerk’s ‘discretion’ as to timing, on the basis that there is no obligation to send for assent immediately. But since the Clerk performs this task as an officer of Parliament, under the authority of the same, under a Statute, the 1967 Act, which was passed for the administrative convenience of the Crown-in-Parliament, any ‘discretion’ as to timing must be exercised for that purpose (as David Howarth rightly observes in the comments to King’s piece). It cannot be used for the government’s convenience to achieve by way of delay that which cannot be done outright. This is further underlined by Bennion’s account of the procedure (138):

‘It is the duty of the Clerk of the Crown, in consultation with the Government, to procure the signifying of the Royal Assent at the earliest opportunity after a Bill becomes ready for assent’ (emphasis added).

As described, it is hard even to call this a discretion. It should be noted that ‘consultation with the Government’ suggests that the government has a role to play, but the idea of ‘consultation’ is best understood to reflect a regard for inter-institutional comity and does not in any way imply a power of veto against sending either outright or by way of delay.

This does not quite answer Finnis’s point about the formal interposition of the Lord Chancellor in the process and the Clerk’s formal responsibility to him. But from the mere existence of these formalities, it does not follow that any role played by the Lord Chancellor involves the performance of any function in government, as required by step (3) in Finnis’s argument. The question of capacity is obscured by the fact that duties in relation to the Great Seal, which is relevant later in the assent procedure, are not covered by the reforms to the Lord Chancellor’s office in the CRA 2005 (Schedule 7, para 1), and it is most likely that the Lord Chancellor acts in the sending process under preserved ‘ceremonial functions’ (Ministry of Justice: Written Evidence to the 2014 Select Committee on the Constitution on the Office of the Lord Chancellor, OLC0028, 90). Pre-CRA the Lord Chancellor was the exemplar of an officer of state who did not fit within the neat model of the separation of powers. As Speaker in the Lords, the Lord Chancellor did not sit as a representative of the government, but as ‘presiding officer’ of the House (as referred to in the Select Committee Report, 2014-15 HL Paper 75, Appendix 3). To illustrate: to act as a government minister in the Lords, the Lord Chancellor underwent a ceremonial change of roles, which involved physically changing his position by stepping away from the woolsack—his chair as Speaker. Insofar as the Clerk acts on behalf of the Lord Chancellor in connection with the sending procedure for royal assent, it is in relation to the latter’s previous Parliamentary role as presiding officer. Indeed this explains why an officer of Parliament is tasked with administering the procedure for assent. The Lord Chancellor’s role is more clearly shown by the performance of a comparable role by the Presiding Officer of the Scottish Parliament in obtaining royal assent under s 32, Scotland Act 1998. The better view, therefore, is that the Clerk’s responsibility to the Lord Chancellor involves responsibility to another officer of the Crown in Parliament, rather than responsibility to the government.

The Precedent for Delay

Finnis’s idea of ordering the Clerk of the Crown to delay sending Bills for Royal Assent is interesting, because it has a rather curious and ancient precedent. The precedent might appear to be evidence for what Finnis suggests is constitutionally permissible, yet, on closer inspection, it transpires to be authority for the proposition that delay is constitutionally illegitimate.

The account given by Burnett (Bishop Burnett’s History of His Own Time vol ii, 267-8, cited by both Hatsell and Erskine May) is as follows: in 1680, during the Exclusion Crisis (a direct precursor to the Glorious Revolution), Charles II was faced with a Bill repealing an Act of Elizabeth I (Religion Act 1592 35 Eliz c 1, also known as ‘the Act Against Puritans’) which had been aimed at quashing the ‘seditious’ behaviour of the Puritan movement. The repeal Bill passed both Houses of Parliament, but Charles II, who did not want to be seen to refuse assent to the Bill, instructed the Clerk of the Crown to withdraw the Bill from the list which was to be presented to him for assent at the proroguing of Parliament. The Clerk duly complied and thus the Bill was not enacted.

The reaction at the time—when refusal of royal assent was not uncommon—established the principle that, as an earlier edition of Erskine May puts it (in reliance upon Burnett), Bills ‘cannot legally be withheld’ from royal assent (May, 1st edn, 291). Burnett called it a ‘high crime’ on the part of the Clerk of the Crown to have failed to perform his duties to Parliament. In point of fact, Burnett’s account is wrong on the culpability of the Clerk of the Crown: it was the Clerk of the Parliaments who was at fault, a fact established in the following Parliamentary session by a grand committee of the Lords in which both clerks were held to account (see CE Fryer (1917) 32(105) Eng Hist Rev 103). But, this detail is somewhat immaterial since the Clerk of the Crown was only absolved on the evidence, and the general proposition invoked by the Commons—that it was a ‘Great Violation of the Constitution of Parliaments in passing Laws, and of most dangerous Consequence’ for a Bill not to be tendered for assent (Lords Journal (1675-81) 13, 756)—covered other officers involved in the assent process. The reactions at the time to this highly anomalous episode, as detailed in Fryer (above), can also be understood to extend to a prohibition on the refusal of assent (as implied by the use of ‘assent must be forthcoming’ in Erskine May, 24th edn, 642), but it certainly is precedent for the rule that a veto cannot be procured by the surreptitious means of not presenting the Bill in the first place: the opposite rule to that which Finnis advances.

It is also significant that the objection to withholding Bills from assent is generally framed as a question of vires. For instance, Bennion writes, ‘[t]here is no power to withhold a Bill from Assent, whether on the instructions of the government or anyone else’ (138, emphasis added). This is different from the debate over the refusal of assent, which is a question over the exercise of a power where its exercise is constrained by obligations under (non-legal) constitutional conventions.

Conclusion

The precedent, coupled with the constitutional roles of the Clerk and Lord Chancellor as officers of the Crown in Parliament, shows quite simply that Professor Finnis is wrong about the constitutional legitimacy of withholding Bills from assent in the manner he describes. The subsequent development of the advice convention to govern the legitimate exercise of existing powers cannot have had the effect of creating new, or newly legitimising, powers, which were previously—and continue to be understood to be—unconstitutional.

I am very grateful to Jeff King, Gavin Phillipson and Mark Elliott for their helpful comments and/or discussion of the relevant issues. The usual disclaimer applies.

Joseph Crampin, MPhil/PhD candidate and Teaching Fellow, University College London.

(Suggested citation: J. Crampin, ‘Precedent for Delaying Royal Assent: A Response to Professor Finnis’, U.K. Const. L. Blog (17th Apr. 2019) (available at https://ukconstitutionallaw.org/))