Michael Detmold: The Proper Denial of Royal Assent

Twenty-one eminent constitutional lawyers expressed this view in a letter to the Times (3 4 19): ‘Any attempt to advise refusal of Royal Assent to a Bill passed by Parliament would stand constitutional principle on its head. It would presume a governmental power to override Parliament, yet it is in Parliament, not the Executive, that sovereignty resides’.

But it is the eminent-21 who stand constitutional principle on its head.  The true principle is: it is in Parliament (not the Executive, and not the Legislature) that sovereignty resides.

The name Parliament, or parliamentum, came (from the Old French: parlement, parler) into use in England in the 14th century (the Modus Tenendi Parliamentum, probably 1321), but by the 15th century it had come to mean a legislature (OED 3rd edition, 2005); and, indeed, that’s what it was.  The movement from an absolute monarch to a legislative Parliament is the first of the two large movements in the history of British Parliamentary sovereignty.  The second was the movement from the Interregnum to the present, when the executive power of the monarch was, with many intermediate steps, completely transferred to Parliament.  In this second movement, the legislative Parliament completed Parliament’s sovereign power.  But that this was achieved by a legislature does not mean that the sovereignty achieved was legislative (a bat hits a ball, therefore the ball is a bat!).  The final sovereignty was one of legislative and executive power.  Parliament was by the second movement now the sovereign in right of both.

It is widely accepted that the legislature of Parliament is so sovereign that it can enact any law it likes – even that all blue-eyed babies are to be executed (Dicey).  This is questionable, but let’s accept that it’s correct.  It doesn’t follow that the constitutional relation between the legislative and executive power is to be anything that the legislative power likes (for example, that a Cooper-Letwin legislature be allowed to take over the executive power). The sovereignty lies in the relation of the powers, not in just one of them.  It is correct to think that the Parliament is the absolute sovereign of the British Constitution, but the Parliament, historically, and in its modern practice is both powers, not just one of them.

And if it were just one of them, that one would have to be the executive.  Of the three traditional powers, the legislature is the least necessary, in fact the only one that is dispensable.  Executive power plus judicial power (the unwritten common law), but minus legislative power, would work quite well (in a pared-down free market economy).  Legislative plus executive, minus judicial power, would be difficult to conceive and extremely unwise as an exercise in freedom.  But legislative plus judicial, minus executive power, would not work at all.  Executive power is the one indispensable power of the British sovereignty.

Of course, the legislature does have law-making power in relation to the Executive; it can state the conditions of its liability to suit by citizens.  But this liability is as much an executive concern as legislative.  Liability to suit for malfeasance is a positive desideratum for any lawful executive power. In no sense is such a law a sovereign imposition by the legislature upon the executive power; in the modern Parliament it is an example of the two powers co-operating within the lawful sovereignty.

The Parliament is fundamentally what it is in its original meaning: a group of people called together (in modern times by election) to discuss, decide, execute and oversee the governance of the country in both its legislative and executive functions.  It is not just a debating chamber: Cromwell at Naseby was Parliament at Naseby.

In R (Miller) v Secretary of State for Exiting the EU, [2017] UKSC 5, the majority judges said (at 82): ‘we cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation’.  Here the judges are saying that only the legislative power is the ultimate sovereign.  In this they were, I think, misled by HLA Hart’s idea of the rule of recognition (‘the fundamental rule by reference to which all other rules are validated’: Miller 60).  The rule posits the recognition only of rules or laws, or rules of law, and of changes in them, and so it (a) excludes the recognition of the executive power, and (b) by that fact also excludes the possibility of a sovereign’s duty to the people.

Juridically speaking, duty is a logical function of action, and constitutional action is the province of the executive power.  It acts.  The legislative power doesn’t – an Act is not an act (except figuratively).  Obviously, members of Parliament act when they vote on legislation, but the legislative power itself is not an actor.  And how could you have a sovereign that doesn’t act?  How could you have a sovereign who because it doesn’t act, doesn’t have a duty to the people?

Salus populi suprema lex, is a matter of the executive power for the very obvious reason that security in the 21st century is essentially covert, and beyond the capacity of a necessarily overt legislature.  This is the most fundamental duty of a sovereign/state to its people, more fundamental than the (legislative) rule of recognition.

The constitutional base of the executive power was, and still is, Parliament (it would be a constitutional solecism to say Whitehall).  Even now, in current practice, the substance of much of Parliament’s work is executive governance.  The Government is formed in the Parliament, not Whitehall, and it has the following executive characteristics:

  1. Question time in Parliament is plainly an executive, rather than legislative, process.
  2. Ministers themselves are more executive than legislative; the prime responsibility of a health minister, for example, is to take overall control of the running of the health – the Minister’s devising legislation is incidental to this task.
  3. The making and unmaking of governments by Parliament is an exercise of executive, not legislative power. Parliament could do this legislatively (when someone puts up their hand for PM it might pass a law appointing them, which can, whenever they like, be repealed.  But they don’t; they do it with a regime of confidence, supported by motion rather than legislation.  The idea that a vote of confidence in the executive is a vote by the legislative power is simply nonsense.
  4. Budgets achieved by the Parliament are not legislative budgets, they are executive budgets (including, as it happens a relatively small amount for legislative expenses). It is a misreading of history to suggest that the fact that the primarily legislative Parliament of the 17th century successfully broke the Monarch’s executive power to raise money, established a superiority of the modern legislative power over the executive.

There is a certain awkwardness attaching to the idea of Parliamentary executive action; but that is because the very looseness of the Supreme Court’s language is common currency.  We can see this in the Parliament Acts 1911 and 1949, which are misnamed.  Their correct title, as anyone will see who examines their substance, is: the Parliamentary Legislation Acts 1911 and 1949.  With this misleading title becoming pervasive in constitutional thought, the words ‘legislation’ and ‘Parliament’ developed a semantic proximity; but it should go without saying that we expect our judges to prefer constitutional and historical substance to nomenclature.

A distinctive aspect of the Queen’s constitutional duty is for her to act only on advice.  In that way she avoids compromising her constitutional status by the possession of a personal opinion.  There is no sense ever in which the legislature advises the Queen. The advice of the executive is the foundation of her constitutional status.

Will the Queen (can she) follow the Prime Ministerial advice and refuse assent to the Brexit repeal statute?  It is said (for example, by Professor Mark Elliott, one of the e-21) that the principle of Parliamentary democracy (in its legislative mode) should prevail over her prerogative power to act on the advice of her Government.  But this is wrong on two grounds.  First, it is a democratic Government (as democratic as the legislature) that is offering the advice.  And second, as has been shown time and time again in post-colonial states, democracy fails without an historical foundation of trust.   In the United Kingdom that trust resides substantially in the constitutional Queen herself (as Bagehot said in many ways).  Elliott’s argument, pitting democracy against that trust, begs the question of a real and ongoing democracy.

Suppose the Queen does refuse assent to a Brexit repeal or extension.  Pre-2011, her clear course would have been to require an election – shifting the issue to the people.  She would accept the Prime Minister’s advice and refuse assent to the bill on condition that he takes the issue to an election.  Simple?  No.  Under the Fixed-term Parliaments Act 2011 that solution is not available; neither she nor the Prime Minister has the power to bring an election about.  So she must act, and this can only be on advice.

She is a constitutional monarch with no opinion of her own on Brexit, and if advised by her Prime Minister to refuse assent, she must do so.   She also has advice to the same effect from the people.  It was rather legalistic for the Supreme Court in Miller to refuse to regard the European Union Referendum Act 2015 as, given its result, authorising the Article 50 notice; but as advice from her people to their fiduciary Queen, the referendum was unambiguous.  It didn’t change the law in any legislative sense; but it did give a definite content to the sovereign Parliament’s duty to its people – and in particular to the acting part of the sovereignty, the executive power.

A Prime Minister advising the Queen to refuse assent to a bill is acting in a way appropriate to his office in the sovereign Parliament – acting legitimately no less than the legislators of the two Houses are doing.  Such a thing is rare, but proper.  Only the fallacious idea that the legislature is itself the Parliament, gives pause here.

Will the Supreme Court stick with the demotion of the executive power evidenced by Miller and enjoin the Prime Minister from giving advice against assenting to the bill?  No court, we may take it, would enjoin the Queen as to her assent to a bill.  But enjoining the Prime Minister would have the same effect.  This is because if you take away the Prime Ministerial power of advice, you take away the power of the Queen to act as a constitutional monarch: she has no interest or view of her own, and therefore can only act on advice.  What would the enjoining of the Prime Minister against this achieve?   It would turn the real Constitution on its head.

Far from the Prime Minister’s executive advice overriding Parliament (as the e-21 put it), it is an essential part of its constitution.  Parliament, the sovereign, in this final working-out of the Brexit issue is both legislature and executive, consisting of sovereign parties who will play the issue out according to its complexity, including its timing, which might be short, and all its judgements and misjudgements (particularly of time), and the rules of play.  It might be as I’ve imagined it with the two houses passing a bill and the Prime Minister advising against the Queen’s assent (which advice she accepts), or it might be the Commons passing a legitimate motion of no confidence in the Prime Minister’s Government and through an election installing a new Prime Minister who advises the end of Brexit (which she accepts).  Either way, the whole Parliament will have spoken and determined the issue.  To cut that process short, as by cancelling the Prime Minister’s executive advice, would be to fracture Parliament, not vindicate it.

Michael Detmold, Emeritus Professor of Law, University of Adelaide

(Suggested citation: M. Detmold, ‘The Proper Denial of Royal Assent’, U.K. Const. L. Blog (5th Sept. 2019) (available at https://ukconstitutionallaw.org/))