Ronan Cormacain: Queen’s Consent and the Crown’s exemption from lockdown rules – are we all in this together?

There have been recent revelations about the use of the Queen’s consent procedure in relation to Government Bills. At the heart of the issue is the role of the Queen and the Prince of Wales, in vetting Acts of Parliament before they are made. With that background, this paper examines the applicability of some of the coronavirus lockdown rules to Crown land. My conclusion is that the Crown has special and unjustified privileges in the both the content of legislation and the procedure for making it.

Directions relating to public outdoor places

In the labyrinth of coronavirus rules, there exist provisions in the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 (the 2020 Regulations) which restrict the use of public outdoor places. These are very sensible powers which allow local authorities to give directions which impose prohibitions, requirements or place restrictions on access to public outdoor places in their area. For example, if a local authority had a surge in cases it could close a popular park which seems to be jam-packed with people on a regular basis. Local authorities would clearly not relish doing this, but one can imagine circumstances where the public health emergency would justify it.

This rule is set out in regulation 6 of the 2020 Regulations under the clear heading of “directions relating to public outdoor places”. It contains the sort of safeguards one would expect (clarity of directions, rights of appeal, advance notice of restrictions, etc.)

Application of this rule to Crown land

However, the untitled regulation 8 creates an exception. In outline, a local authority cannot impose a restriction on Crown land unless it has the agreement of the Crown. (The regulation also grants exceptions for Government land, but for the purposes of this analysis, I am not considering that exception).

In greater detail, regulation 8 applies to public outdoor places which form part of Crown land and which include property to which section 73 of the Public Health (Control of Disease) Act 1984 (the 1984 Act) applies. Section 73 covers the application of the 1984 Act to Crown land, or more specifically,

any house, building or other premises being property belonging to Her Majesty in right of the Crown or of the Duchy of Lancaster, or belonging to the Duchy of Cornwall, or belonging to a government department, or held in trust for Her Majesty for purposes of a government department

The Duchy of Lancaster is an ancient Crown estate, which is managed on behalf of the Crown by the Chancellor of the Duchy of Lancaster. The Chancellor is a ministerial office holder, and the current holder is Michael Gove MP. The Duke of Cornwall is the Prince of Wales.

Under s. 73, the 1984 Act only applies to Crown land if the “appropriate authority” agrees that it will apply to Crown land. The appropriate authority is defined in s. 73(4) as being

(a) in the case of property belonging to Her Majesty in right of the Crown, the Crown Estate Commissioners or other government department having the management of the property ;

(b) in the case of property belonging to Her Majesty in right of the Duchy of Lancaster, the Chancellor of the Duchy ;

(c) in the case of property belonging to the Duchy of Cornwall, such person as the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints ; …

The same definition and same requirement for consent of the appropriate authority appear in regulation 8 of the 2020 Regulations.

The net effect of this is that different rules apply to a public outdoor space that is on Crown land. The ordinary rule that the local authority can issue directions for the public health reasons is subject to the veto of the Crown, or specified scions of the Crown, or (in the case of the Duchy of Lancaster, or land belonging to the Government) a Government minister.

A rule of statutory interpretation and a custom in law-making

This net effect is the end result of two elements: a rule of statutory interpretation and a custom of law-making.

The rule of statutory interpretation is that legislation does not bind the Crown unless it is specifically stated (or in some cases implied) that it binds the Crown.

This rule is admirably clear and has statutory authority in Northern Ireland, where s. 7 of the Interpretation Act (Northern Ireland) 1954 is entitled “Crown not bound, unless named”. Scottish interpretation law is equally clear, albeit having the reverse presumption – under s. 20 of the Interpretation and Legislative Reform (Scotland) Act 2010, the Crown is automatically bound by a (Scottish) statute, unless the statute provides otherwise. For England and Wales, the rule doesn’t appear in the Interpretation Act 1978 at all. It does appear obliquely in the Crown Proceedings Act 1947, where s. 40(2)(f) (the savings provision) states that the Act does not affect any presumption relating to the extent to which the Crown is bound by an Act of Parliament.

For England and Wales (and for legislation not subject to the NI and Scottish interpretation acts), the common law rule of statutory interpretation is as set out in Bennion

since an Act is made by the Queen in Parliament for the regulation of subjects, it follows that, unless the contrary intention appears, the Act does not bind the Crown itself.
(section 34, 5^th edition)

The second element is the custom of seeking Queen’s consent, or Prince’s consent to a piece of legislation, if that legislation affects the interests of the Queen or the Prince of Wales. Adam Tucker’s evidence to a Parliamentary Report on this subject contains an excellent summary on this point. (Unfortunately, his evidence is no longer available on the parliamentary website and I am indebted to him for sending me a copy.) Tucker argues that this is a habit, not a rule. The Office of the Parliamentary Counsel issued a pamphlet in 2018 setting out the practice of Queen’s consent and Prince’s consent. Although this pamphlet is a mine of useful information, it doesn’t actually state the legal basis for consent, merely, that consent is “needed” or “required”. The normative status of this custom as an actual “rule” is not clear.

A culture of deference and the broader practice of exempting the Crown from the rules

The exemption of the Crown from the coronavirus rule on public outdoor places is merely one example of the outcome of this rule and this custom. There is a culture of deference bordering on obsequiousness within Parliament and within the Government when it comes to the Crown.

Evidence of this deference is easily seen. Even in the most recent (7^th edition) of Bennion, the rule is still framed in terms of the Queen making rules of the benefit of her “subjects” (see section 4.14). In the Office of Parliamentary Counsel pamphlet it states that “The granting of Queen’s or Prince’s consent for a bill is merely a consent for Parliament to debate the bill”. The form of words signifying consent is:

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Coronavirus Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill
taken from 3^rd Reading in the House of Lords on the Coronavirus Act

The outcome of this is that many statutes have a section, generally towards the end, stating the exemptions or modifications of that statute in the way that they apply to the Queen or the Prince of Wales.

Why does this matter?

The special dispensation matters for four reasons.

Firstly, it is an anti-democratic anachronism that two powerful individuals have rights and privileges over public legislation that the rest of the public do not have. No-one asks my consent before passing a particular law. No-one hand-crafts particular exemptions for me in laws. Why must elected MPs seek the permission of the Crown before they can even debate a Bill which may touch upon the Crown’s interests? There is a valid argument that some legislation may need modification in its application to the Government, or even to the Crown in respect of its official duties, but no argument that the private or personal interests of the Crown require special legislative privileges.

Secondly, the Rule of Law requires equality before the law. Tom Bingham’s example was that it didn’t matter if you were the Archbishop of Canterbury, you would still be treated the same under the law. That is true insofar as it relates to the Archbishop, but not as it relates to the Queen or the Duke of Cornwall. A royal exemption contained in statute satisfies the “in accordance with law” element of the Rule of Law, but not the “equality before the law” element. That element is only satisfied if there are objective reasons for the differential treatment of the Crown. No objective reason has been advanced why the Crown isn’t subject to the same measures as everyone else in a public health emergency. Is immunity of your land from compliance with public health measures a necessary incident of being a monarch?

Thirdly, and specifically relating to the current pandemic, there is the time taken, during the preparation of emergency public health laws, to carve out an exception for the Crown. With statutory instruments being made on 16 July, laid before Parliament on 17 July and coming into force at one minute past midnight on 18 July, why do we have a system of law-making which still obliges the Government to pause and consider how emergency laws will affect the private rights of the Crown? Even during the frantically rushed passage of the Coronavirus Act 2020 itself, two things were apparent. Firstly, as stated above, the Lord Privy Seal felt obliged to ask the Queen’s permission for Parliament to debate that Bill. Secondly, time was taken, in Schedule 18 to the Act, to carve out fresh exceptions for Crown land – this time, in relation to Northern Ireland, in the inserted s.25X of the Public Health Act (Northern Ireland) 1967.

Fourthly, and again specifically relating to the pandemic, there is the importance of solidarity as a way of encouraging compliance with the rules. If we feel that we are all in it together, then we are more likely to comply with the rules. The converse is true, if Dominic Cummings is exempt, then why should I bother to follow the rules? If the Queen is not subject to restrictions on Crown land, then why can’t I have a birthday barbecue in my local park?

Conclusion

I agree with the conclusion reached by Adam Tucker writing in The Guardian – in a modern state, it is archaic and anti-democratic that one or two people have a special right to change the content of legislation. This is particularly so when the interests that are being protected are their private interests as landowners. The unfairness and ridiculousness of this deference is exposed during the pandemic in the special exemptions carved out for the Crown from the normal public health rules. We have taken the time to enact a lockdown rule which applies to everyone in England with the exception of the Queen and the Prince of Wales. We are all in this together, except for two of the most powerful people in the country.

Dr Ronan Cormacain

Senior Research Fellow, Bingham Centre for the Rule of Law

(Suggested citation: R. Cormacain, ‘Queen’s Consent and the Crown’s exemption from lockdown rules – are we all in this together?’, U.K. Const. L. Blog (15th Feb. 2021) (available at https://ukconstitutionallaw.org/))

4Comments

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1

movingvisionuk on February 15, 2021 at 10:24 am

Amongst other things, this argument seeks to convince that we are a democracy abused by the Crowns special privileges and powers. That argument might hold some water if indeed we were a democracy, at least in its purist form, the one person one vote of equal force type of democracy. We suffer a rigged and absurd form where a government is almost always elected with a majority by a minority.

So that’s an important fact.

The article seeks to subordinate the Crown to Parliament on the grounds that this rigged faux democracy has some basis in right and law to do so.

It’s apt that this argument is submitted to an association concerned with Constitutional propriety. I think Ronan Cormacain is another Parliamentary absolutist who doesn’t like our constitution.

His argument is founded on the assumption that the Crown is not above ordinary statute. But Ronan that is the central plank of our constitution. Parliament deals with it’s own statutes. The Crown deals with Constitutional Law, flowing from which is the courts and indeed all law and all statutes which rely upon being constitutionally lawful to have force. The Crown itself is bound in a duty the constitutional Instruments that can be read, in all their written glory, in the Constitutional Library in the Palace of Westminster. Some of those Instruments are also statutes becoming that very rare thing, a Constitutional Statute, but only because the provisions of that statute are entrenched in an Instrument, such as the Bill of Rights 1689 being entrenched in the Declaration of Right 1688.

The Constitutional Monarch does not rule by Divine Right but can only act to protect the constitution, especially from unlawful statutes, or indeed the usurpation of absolute power by politicians. It’s what the Glorious Revolution 1688 was all about.

The Crown is above Parliament but below the Constitution that so many commentators here believe, ironically, doesn’t exist beyond mere convention. It’s a separation of powers thing.

Sovereignty and Supremacy are not the same thing, thank Heaven for small mercies.

It’s repeatedly apt in these columns to repeat this quote from Sir Steven Sedley the eminent Appeal Court Justice

“The Crown is as Sovereign in the Courts as it is in Parliament”

All is revealed in that short sentence.

We tamper with the Constitutional supremacy of the Crown at our peril, especially when our disproportionally unrepresentative Parliament is so susceptible to extremism and corruption.
2

A Jones on February 16, 2021 at 3:33 am

While the forms used by Parliament create the impression that this is about special rules for one or two individuals, the reality appears to be that Parliament is protecting its own rights in a manner that is essential to the functioning of government institutions. That intent seems evident as the exemptions referenced above do not appear to apply to property held by Her Majesty in her private capacity, but rather only to those held by her in right of the Crown.

Removing these exemptions could create the absurd result that a local authority would have the authority to frustrate national policy.

In the United States, state and local authorities cannot impose health or safety restrictions on federal property without the federal government’s consent. While such rules are often complied with as a matter of courtesy, it would be inconceivable to operate military bases, federal agencies, etc. if each local authority could impose a different set of rules and those rules were subject to the whims of local officials. That is a bedrock principle even though the states are separate sovereigns and federal ownership of property is clear. Ownership of property used by the Government in the UK is often less clear with lines between the Government and the Crown being a bit blurry. The author laments the time lost to obtain consent and draft these exemptions. However, that time appears to have been minimal. Use of this process was undoubtedly much more efficient than drafting language providing for each possible permutation of land use by the UK government.
3

Paul Evans on February 16, 2021 at 11:12 pm

Of course, leaving aside the argument of principle, Queen’s Consent does not apply to delegated legislation, so to that extent the exemption cited above under regulation 8 appears to be an entirely discretionary choice made by Ministers in framing the regulations (unless there is something in the parent Act preventing the making of regulations which apply to Crown land).
4

Ronan Cormacain on February 17, 2021 at 12:43 pm

Thank you for the verry interesting comments, and I am happy to debate further
@movingvisionuk
I am certainly happy to criticise some aspects of our constitution, but I don’t think that means that I “don’t like” our constitution.
There are two contradictory threads running throughout our constitutional history. The first, as you say, is that Crown isn’t subject to the legislation made by the Queen in Parliament. The second, is that the Crown is still subject to the law. In the event that these cannot be reconciled, I would subscribe to the second thread.

@A Jones
You have correctly identified the broader point, that much of these rules are to do with protecting the functioning of government from interference by local authorities etc. For example, many of these rules are really to do with land held by the Crown which is used by the Government for Government purposes. However, I was focusing on the narrower point, which is that these rules also apply in respect of the private and personal rights and interests of the Crown. For example, the OPC document cited goes into great detail about Prince’s consent in relation to vast amounts of land owned as part of the Duchy of Cornwall. The rights of the Prince of Wales as landlord over his tenants isn’t anything to do with the proper functioning of Government.

@paul evans
As you point out, there is no general rule of Queen’s consent applying in relation to delegated legislation. For the coronavirus regulations made under the 1984 Public Health Act, the primary legislation does indeed specify that the legislation doesn’t apply to Crown lands unless with the agreement of the Crown. I suppose one logical consequence of this is that this restriction must then also be repeated in delegated legislation made under that Act.