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
|
