1 The process
What is Consent?
1. Consent is a process entirely distinct from Royal
Assent. When Bills have been passed by both Houses of Parliament,
they await only Royal Assent to be declared Acts of Parliament.
By contrast, Consent is required before a Bill completes its
passage through Parliament, but is required only if the Bill affects
the Crown. The Office of the Parliamentary Counsel pamphlet on
Queen's or Prince's Consent states:
The granting of Queen's or Prince's consent for
a bill is merely a consent for Parliament to debate the bill and
does not affect the theoretical right of the monarch to withhold
Royal Assent to the bill. That said, Royal Assent is of course
never refused for a bill that has successfully negotiated its
way through Parliament.[1]
Professor Robert Blackburn, of Kings College London,
states:
The substance of the Royal Consent is an agreement
to the proposed legislation being considered and debated in each
House of Parliament, not that the Queen or the Prince of Wales
where applicable necessarily agrees or supports the content of
the measures itself.[2]
Erskine May, the guide
to parliamentary practice, states: "If the Queen's
consent has not been obtained or is not signified, the question
on the relevant stage of a bill for which consent is required
cannot be proposed."[3]
Our inquiry
2. In January 2013, the Cabinet Office was required
to publish a pamphlet prepared by the Office of the Parliamentary
Counsel, setting out the procedure for obtaining Queen's and Prince's
Consent. The pamphlet was initially requested under the Freedom
of Information Act 2000 by John Kirkhope, who was then a PhD student,
in August 2011.[4] The
Cabinet Office refused to disclose the pamphlet on the basis that
it was protected by legal privilege. The Cabinet Office was overruled
by the Information Commissioner, and subsequently by the First-tier
Tribunal (Information Rights). A redacted version of the pamphlet
(dated December 2012) was published online. A version with minor
revisions (dated October 2013) has now been published.
3. When we asked Richard Heaton, First Parliamentary
Counsel, about the Cabinet's Office's reluctance to disclose the
pamphlet, he replied: "When the FOI request was made, we
took the view some two years ago that there was legal advice embedded
in it. However, we were keen to strip out the bits we could not
disclose and make the bulk of it public."[5]
He added that, although the Cabinet Office "took the view
that it is traditional defence of legal privilege that where the
Attorney has given advice to the Government, on the whole that
is not made public",[6]
he realised that "we are legislating in an arcane world...and
the more we can do to shed light on dusty, opaque corners of the
constitution the better."[7]
We accept that it is not always appropriate for the Government
to publish its legal advice, but individuals should not have to
resort to freedom of information requests to obtain material that
is suitable for publication and would throw light on the legislative
process, as happened in the case of the pamphlet on Queen's Consent.
We are encouraged by the positive attitude of First Parliamentary
Counsel towards the publication of potentially useful information.
We recommend that the Office of the Parliamentary Counsel
continue proactively to publish its internal documents that could
be of interest to the wider public, unless there is a strong reason
not to do so.
4. The publication of the pamphlet prompted wider
discussion about the role of Consent. Our inquiry, which was
launched on 9 July 2013, aimed to establish further information
about the process itself and to consider its impact. The terms
of reference are in Annex A. The inquiry was intended to contribute
to our ongoing scrutiny of Executive powers in the UK. We received
11 pieces of written evidence and held an oral evidence session
on 31 October 2013 with the Clerk of the House of Commons and
the Clerk of the Parliaments, and with First Parliamentary Counsel.
We are grateful to all who contributed to the inquiry.
QUEEN'S CONSENT
5. Queen's Consent is needed for:
· Bills that affect the prerogative;
· Bills that affect the hereditary revenues,
personal property or personal interests of the Crown, the Duchy
of Lancaster, or, unless the Prince of Wales is of age, the Duchy
of Cornwall.[8]
The House of Commons Library Standard Note on The
Royal Prerogative states:
Originally prerogative powers would have been
exercised by the reigning monarch. However, over time a distinction
has emerged between the monarch acting on his or her own capacity,
and the powers possessed by the Monarch as head of state. In modern
times, Government Ministers exercise the majority of the prerogative
powers either in their own right or through the advice they provide
to the Queen which she is bound constitutionally to follow. There
have been calls to reform prerogative powers, chiefly because
they are exercised without any parliamentary authority.[9]
We are exploring prerogative powers as part of our
inquiry into the role and powers of the Prime Minister.
6. The Office of the Parliamentary Counsel pamphlet
notes that it is "not possible to give a comprehensive catalogue
of prerogative powers."[10]
However, it lists some, including the powers:
· to appoint a Prime Minister;
· to summon or prorogue Parliament;
· to give or refuse Royal Assent to bills;
· to legislate by prerogative Orders in
Council (for example, in relation to certain parts of the civil
service) or by letters patent;
· to exercise the prerogative of mercy (for
example, to pardon convicted offenders);
· to make treaties;
· to wage war by any means and to make peace
(including power over the control, organisation and disposition
of the armed forces);
· to recognise states;
· to issue passports and to provide consular
services;
· to confer honours, decorations and peerages;
· to make certain appointments (including
royal commissions). [11]
PRINCE'S CONSENT
7. Prince's Consent is required for Bills that expressly
mention the Duchy of Cornwall or otherwise have a special application
to it. The eldest surviving son of the monarch, who is also Heir
Apparent to the throne, inherits the title of Duke of Cornwall
and the estate of the Duchy of Cornwall. If the monarch does
not have a son, there is no Duke of Cornwall and the Duchy of
Cornwall reverts to the Crown. Written evidence submitted by
David Beamish, the Clerk of the Parliaments, and Sir Robert Rogers,
the Clerk of the House of Commons, states:
The need for consent in respect of the Duchy
of Cornwall arises from the Sovereign's reversionary interest
in the Duchy of Cornwall. Where there is no Duke of Cornwall
the Duchy reverts to the Crown. If a Bill affects the Duchy in
the same way as it affects other Crown land, separate Prince's
consent is not required.[12]
The Office of the Parliamentary Counsel pamphlet
states that Prince's Consent "may very occasionally"
be required in other circumstances.[13]
It gives the example of the Bill for the House of Lords Act 1999,
which removed the majority of hereditary peers from the Lords
and "expressly provided that 'hereditary peerage' included
the principality of Wales."[14]
The Clerk of the Parliaments and the Clerk of the House of Commons
comment: "Prince's consent is normally needed only for Bills
for which Queen's consent is also required. The last occasion
on which Prince's consent alone was signified was for the Pilotage
Bill in 1987."[15]
In that case, it was required because the Duke of Cornwall is
the harbour authority for the Isles of Scilly.
Seeking and obtaining Consent
8. The process of seeking and obtaining Consent involves
the Office of the Parliamentary Counsel, the Clerks of Legislation
in both Houses of Parliament, the Government Department responsible
for the relevant Bill, and the Royal Household. Richard Heaton,
First Parliamentary Counsel, summarised the respective roles of
these people and bodies in relation to Government Bills as follows:
When we [Office of the Parliamentary Counsel]
are preparing a Bill ready to be introduced, there are a number
of things that we have to check and get in order and we correspond
or telephone or get in touch with the Clerks' staff on matters
like scope, whether money cover is needed, whether Queen's or
Prince's consent is needed. Generally speaking, we take an initial
view because we know the precedents. We then discuss it with the
Clerk of Legislation in each House and...their view is the authoritative
one. We then communicate that to the Department. The Department
then writes to the respective royal households in a fairly standard
way and await a response.[16]
As this quote makes clear, the final decision on
whether Consent is needed is made by the Clerks of Legislation
in both Houses. In written evidence, Sir Robert Rogers and David
Beamish stated: "The decision is normally straightforward
but if there were any uncertainty the Clerks of Legislation would
examine the relevant precedents and, if necessary, consult their
respective Clerks. If the decision concerned a Government Bill,
it would not be challenged."[17]
Both Sir Robert Rogers and David Beamish told us that the two
Houses always agreed on whether Consent was necessary.[18]
9. Once the Clerks of Legislation have decided that
Consent is needed, it is the Department's role to write to the
Queen or the Prince of Wales to request Consent. The Office
of the Parliamentary Counsel pamphlet and the Cabinet Office
Guide to Making Legislation set out exactly how Departments
should go about requesting Consent. The Cabinet Office's Guide
to Making Legislation states that the letter from the Department
to the Palace should explain the purpose of the Bill, and how
it affects the prerogative or interests of the Crown, enclose
two copies of the draft Bill, and ask for Consent.[19]
The Guide to Making Legislation also specifies that letters
should be copied to Farrer and Co, who "will, as appropriate,
advise the Royal Household, the Clerk to the Council of the Duchy
of Lancaster and the Secretary to the Duchy of Cornwall on the
nature of the legislation and its potential impact."[20]
Farrer and Co are the Royal Family's legal advisers. The Guide
to Making Legislation continues: "The Royal Household
must be given as much time as possible, and never fewer than 14
days".[21]
10. Sir Robert Rogers and David Beamish explained
that, in the case of Private Members' Bills, the Clerk in charge
of Private Members' Bills informs the Member concerned that Consent
is needed and outlines the process involved.[22]
However, even in the case of Private Members' Bills, it is still
the Department, not the individual Member, that writes to the
Queen or the Prince of Wales to request Consent. The Cabinet
Office's Guide to Making Legislation states: "If a
private member's bill requires Queen's and/or Prince's consent,
the Member writes to the relevant Minister to ask the Government
to arrange for Consent to be obtained."[23]
11. Once sought, Consent can be granted or withheld.
The Leader of the House of Commons, Rt Hon Andrew Lansley MP,
told us in written evidence: "the process of Queen's and
Prince's consent is subject to the convention that the Sovereign
must ultimately accept Ministerial advice." He also commented:
"A request for consent carries with it by implication Ministerial
advice that consent should be granted."[24]
In other words, Ministers would tend not to advise the Queen
or Prince of Wales to withhold Consent; they would simply not
seek Consent in the first place. It seems also that the advice
is thus not actual written advice; there is simply a presumption
that when Consent is sought by Ministers, it will be granted by
the Queen or the Prince of Wales. It therefore follows that
Consent is very rarely actually withheld; it is simply never sought
in the first place, although in practical terms the effect is
the same.
12. Once Consent has been granted by the Queen or
Prince of Wales, it must be signified in both Houses of Parliament.
Consent is normally signified in the Commons at the Third Reading
stage of a Bill, but if the Bill fundamentally affects the prerogative
or interests, Consent will usually be signified at Second Reading.
For example, in the case of the Fixed-term Parliaments Act 2011,
Consent was signified at Second Reading because it abolished the
prerogative power to dissolve Parliament. A similar approach
applies in the House of Lords. The companion to the House of
Lords Standing Orders states:
In the case of a bill affecting the prerogative
of the Crown, Consent is normally signified before the motion
for second reading. If a bill affects the interests of the Crown
but not the prerogative, the normal practice is to signify Consent
on third reading in order to take account of any amendments made
to the bill.[25]
13. In the House of Commons, Consent is signified
by a Privy Counsellor who is almost invariably a serving Minister.
In the House of Lords, Consent is signified by a Privy Counsellor
who must be a Minister.[26]
It is the responsibility of the relevant Government Department
to ensure that a Privy Counsellor is available at the appropriate
stage to signify Consent. Consent may sometimes need to be further
signified as a result of amendments to a Bill. The Leader of
the House of Commons states: "The signification of consent
has always been a matter of public record and is recorded on the
Order Paper, in the Lords and Commons Journals, and in Hansard."[27]
1 Office of the Parliamentary Counsel, Queen's or Prince's Consent¸
October 2013, para 7.11 Back
2
Professor Robert Blackburn (QPC 10) para 2 Back
3
Erskine May: Parliamentary Practice, 24th Edition
(2011), p 167 Back
4
Dr John Kirkhope (QPC 06) Back
5
Q20 Back
6
Q21 Back
7
Q24 Back
8
Clerk of the Parliaments and Clerk of the House of Commons (QPC 09)
para 4 Back
9
House of Commons Library (Lucinda Maer and Oonagh Gay), The Royal Prerogative,
30 December 2009, p 1 Back
10
Office of the Parliamentary Counsel, Queen's or Prince's Consent,
October 2013, para 2.7 Back
11
Queen's or Prince's Consent, para 2.7.The pamphlet lists further
prerogative powers in paras 2.8 and 2.9. Back
12
Clerk of the Parliaments and Clerk of the House of Commons (QPC 09)
para 9 Back
13
Queen's or Prince's Consent, para 3.1 Back
14
Queen's or Prince's Consent, para 3.5 Back
15
Clerk of the Parliaments and Clerk of the House of Commons (QPC 09)
para 11 Back
16
Q26 Back
17
Clerk of the Parliaments and Clerk of the House of Commons (QPC 9)
para 17 Back
18
Q1 Back
19
Cabinet Office, Guide to Making Legislation, July 2013, paras
17.6 and 17.7 Back
20
Guide to Making Legislation, para 17.11 Back
21
Guide to Making Legislation, para 17.16 Back
22
Q3 Back
23
Guide to Making Legislation, para 17.5 Back
24
The Leader of the House of Commons (QPC 8) Back
25
House of Lords, Companion to the Standing Orders and Guide to the Proceedings of the House of Lords,
2013, para 8.187 Back
26
Queen's or Prince's Consent, paras 5.21 and 5.22 Back
27
Leader of the House of Commons (QPC 8) Back
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