The impact of Queen's and Prince's Consent on the legislative process - Political and Constitutional Reform Contents

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.


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]


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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Prepared 26 March 2014