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

2  Origins and basis of the process

Origins of Consent

14. The origins of Consent are unclear. The Cabinet Office's Guide to Making Legislation refers to a "longstanding Parliamentary requirement that Queen's and Prince of Wales's Consent should be given for certain bills."[28] Professor Rodney Brazier, of the University of Manchester, comments: "My impression is that it is centuries old. It certainly existed in the nineteenth century."[29] In an Annex to their written evidence, the Clerks of both Houses state:

    Although there are several instances in the early Journals of the House of Commons of the expression by Queen Elizabeth I of her agreement or disagreement to measures in progress, we believe the first instance of the signification of royal consent to a public bill was on 27 February 1728.[30]

In this case, King George II gave his consent to the Suppression of Piracy Bill. The Consent of the Sovereign thus seems to have been part of the legislative process for nearly three hundred years. Prince's Consent would appear to be comparatively more recent in origin. Dr Kirkhope suggests that Prince's Consent is unlikely to pre-date 1848.[31] Dr Kirkhope also states that there is a contradiction between the argument that the need for Prince's Consent arises because the Sovereign has a reversionary interest in the Duchy of Cornwall and the probable later origins of Prince's Consent. He comments: "If the assertion is accurate why doesn't the Prince's Consent co-exist with the consent of the Sovereign and thus pre-date 1848."[32]

Constitutional basis for Consent

15. The Office of the Parliamentary Counsel pamphlet states: "The issue of consent is entirely a matter of House procedure and becomes redundant once a Bill has received Royal Assent."[33] This point is underlined by the fact that, although a Bill which needs Consent cannot progress if Consent is not granted, if a Bill receives Royal Assent without the need for Consent being noticed, it remains valid. Dr Adam Tucker, of the University of York, states:

    The Office of the Parliamentary Counsel notes that proceedings on a bill have been "declared void" for lack of Consent. This is ambiguous as to the nature of the nullity. To be clear, it can only be referring to nullity in terms of parliamentary procedure. A bill that required Consent but that was passed (and received the Royal Assent) without it would be good law. It is an established constitutional principle that "the court will not inquire into what passed in the course of the passage of the Bill through Parliament". There is no possibility of an Act being declared invalid by a court through absence of Consent.[34]

16. If Consent is essentially a matter of parliamentary procedure, it would seem to follow that legislation should not be necessary to change or abolish the procedure: a decision by Parliament should be sufficient. Professor Brazier comments: "If it is right that Parliament invented the requirement of royal consents, then presumably it could use its own procedures to abolish it. Alternatively, of course, and to avoid any doubt, primary legislation would do the trick."[35] Written evidence from the Leader of the House of Commons supports the view that the abolition of consent is a matter for Parliament: "Signifying the consent of the Queen and the Prince of Wales for certain legislation is a Parliamentary requirement and the Government will continue to do so for as long as Parliament requires it."[36]

17. Asked whether Consent was entirely a matter of parliamentary procedure, Sir Robert Rogers said:

    I would say it is a convention that is reflected in House procedure. It is certainly not a matter of statute, and I would see no case for it being a matter of statute. Were the arrangement to be changed, it would not require, for example, primary legislation. It would be something that would be in the hands of both Houses.[37]

David Beamish added:

    If this Committee were to recommend a change, certainly in the Lords following precedent, we would start by doing an address to the Crown, inviting the Queen to put her prerogative and interests at our disposal, so we could review the procedures, but that is an internal choice.[38]

The two Clerks expanded on these points in response to a subsequent line of questioning:

    Q7 Chair: If Parliament was minded to abolish consent, what would need to be done?

    Sir Robert Rogers: I think we go back to the route of the address, which we mentioned a few minutes ago. It would be a matter of the Houses saying to the Crown, "We don't think there is a requirement for that any more. Will you place what would otherwise be your discretion—however trammelled by the advice of Her Majesty's Ministers of course, as is made clear in our paper and other written evidence before you—to abolish it?"

    Q8 Chair: Could that be done by way of a resolution, rather than by parliamentary legislation?

    Sir Robert Rogers: Yes. I am always discouraging about the possibility of primary legislation where the workings of Parliament are concerned, but in this case I do not think that it would be a question that would arise. It is a matter of the relationship between the two Houses and the Crown, and the two Houses could make their views known by that route, by an address to the Crown.

    David Beamish: In the Lords, it would be a two-stage process: stage 1 an address to the Crown, to which the Queen would say yes, so we could consider it, and then stage 2, armed with that authority, the resolution in each House.

    Sir Robert Rogers: It would be two stages in the Commons as well.

18. Although primary legislation would not appear to be necessary, Lord Berkeley has presented a Private Member's Bill, the Rights of the Sovereign and the Duchy of Cornwall Bill, that, among other things, would abolish Consent. It had its Second Reading on 8 November 2013. Lord Berkeley's Bill to abolish Consent itself required Consent from the Queen and Prince of Wales, which was duly granted.

19. The Scotland Act 1998 makes explicit reference to the process of Consent, stating:

    The standing orders shall include provision for ensuring that a Bill containing provisions which would, if the Bill were a Bill for an Act of Parliament, require the consent of Her Majesty, the Prince and Steward of Scotland or the Duke of Cornwall shall not pass unless such consent has been signified to the Parliament.[39]

Asked about this provision in the Scotland Act, Sir Robert Rogers said: "If there were no process of Queen's Consent in the Westminster Parliament, I think that provision would simply wither on the vine. It would no longer be applicable."[40] There is a similar provision in the Government of Wales Act 2006, as Professor Blackburn noted in his written evidence. The Act states:

    The standing orders must include provision for securing that the Assembly may only pass a Bill containing provisions which would, if contained in a Bill for an Act of Parliament, require the consent of Her Majesty or the Duke of Cornwall if such consent has been signified in accordance with the standing orders.[41]

Given the way in which these provisions are framed, if Consent were abolished in the UK Parliament, it is unlikely that the Scotland Act 1998 or the Government of Wales Act 2006 would need to be amended.

20. Consent is a matter of parliamentary procedure. If the two Houses of Parliament were minded to abolish Consent, they could do so by means of addresses to the Crown, followed by a resolution of each House. Legislation would not be needed.

28   Guide to Making Legislation, para 17.1 Back

29   Professor Rodney Brazier written evidence (QPC 7) para 18 Back

30   Clerk of the Parliaments and Clerk of the House of Commons (QPC 9), Annex A Back

31   Dr John Kirkhope (QPC 6) para 4.1 Back

32   Dr John Kirkhope (QPC 6) para 4.5  Back

33   Queen's or Prince's Consent, para 7.12 Back

34   Dr Adam Tucker (QPC 04) para 6 Back

35   Professor Rodney Brazier (QPC 7) para 27 Back

36   Leader of the House of Commons (QPC 8) Back

37   Q4 [Sir Robert Rogers] Back

38   Q4 [David Beamish] Back

39   Scotland Act 1998, schedule 3, paragraph 7 Back

40   Q9 Back

41   Government of Wales Act 2006, section 111(4) Back

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Prepared 26 March 2014