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

3  Should Consent continue to be part of the legislative process?

21. In the terms of reference for our inquiry we asked whether there was a continuing justification for consent to be part of the legislative process. In this chapter, we consider the constitutional and practical arguments for and against retaining Consent.

Government veto on Private Members' Bills

22. As we set out above, if a Private Member's Bill requires Consent, it is the responsibility of the Department to seek Consent from the Queen or the Prince of Wales. This raises the possibility that the Government could use the process of Consent to prevent the progress of Private Members' Bills which it opposes. Dr Tucker states: "The most obvious impact of the Consent requirements on the legislative process is the way in which they empower the government by creating an additional shield against unwelcome legislation."[42] Professor Brazier commented: "I have found four examples—and of course there could be more—in which the Government has, directly or indirectly, blocked private Members' Bills through the requirement of royal consent." The four examples he cites are:

    The Peerage (Ireland) Bill was withdrawn from the Commons at second reading in 1868 when Ministers made it clear that they would advise Queen Victoria not to grant her consent.

    In 1964 the Titles (Abolition) Bill was killed off when the Conservative Home Secretary declined to recommend royal consent, on the ground that it was unlikely that the Bill would be debated.

    In 1969 the Rhodesia Independence Bill was refused Queen's consent. The Bill would have given the colony independence, despite an unlawful declaration of independence (UDI) having been made in 1965. Independence was the very thing that the Government was determined that Rhodesia should not have while it was in a state of rebellion against the Crown.

    In 1999 the Deputy Speaker refused to put the question at second reading of the Military Action Against Iraq (Parliamentary Approval) Bill. The Bill's sponsor, Mr Tam Dalyell, has said that the Government had advised that royal consent be refused.[43]

The Leader of the House of Commons cited another example in his written evidence: the European Communities (Reaffirmation of Sovereignty of the United Kingdom Parliament) Bill 1995.[44]

23. Republic stated: "We are very concerned that the consent process could be used as a selective veto for Ministers over Private Members' Bills. Like a number of other royal powers currently exercised by the executive, it potentially allows governments to override the wishes of Parliament—an anomaly that should be abolished."[45]

24. When we asked Sir Robert Rogers whether the process of Consent could be used by the Government as a way of curtailing or preventing parliamentary debate, he replied:

    It could be, is something that we would think was inappropriate. In terms of either House dealing with a proposal, it is much better to focus on the issue that is actually in the Bill rather than to use a piece of clockwork, as it might be, to prevent the resolution of the issue that is in the Bill.[46]

David Beamish said: "I do not think it would happen but if there were any whiff that it might I think I would be very quickly giving very firm advice against to whoever in Government was suggesting it."[47] Sir Robert Rogers stated that Consent was not the only process that the Government could, in theory, use to inhibit debate on Private Members' Bills:

    It is analogous in a way to the Government providing a money resolution for a Private Member's Bill. It is possible for the Government to say, "No, we don't like this Bill, so we are not going to provide a money resolution for it." That would inhibit or possibly prevent debate. When I was Clerk of Legislation...we would always say to the Government that is a misuse of the privilege of financial initiative. The real question is on the nature of the Bill. So it is simply a permissive or facilitating process to have the money resolution. In the same way, I would say that argument applies to consent as well.[48]

25. The Leader of the House of Commons commented:

    The Government will generally seek consent for Private Member's Bills, even where it opposes the bill, on the basis that Parliament should not be prevented from debating a matter on account of consent not having been obtained...On a number of occasions MPs have failed to publish the text of their Bill in time for consent to be sought.

    The Government of the day has on occasion not sought consent for bills they opposed (and did not wish to be proceeded with), on the basis that there was no realistic opportunity for the bill in question to be debated.[49]

26. Part of the difficulty is that although, as 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", the occasions on which the Government has been told by the House authorities that Consent is necessary and has declined to seek Consent are not easily accessible as a matter of public record in the same way. It is thus difficult to be certain how often the Government has declined to seek Consent for a Private Member's Bill, although from the available evidence, it would seem that this is a rare occurrence.

27. We recommend that, if the House authorities decide that Consent is needed for a Private Member's Bill, the Government should as a matter of course seek Consent. This would remove any suggestion that the Government is using the Consent process as a form of veto on Bills it does not support. Members should, in turn, make sure that they publish the text of their Bill in time for Consent to be sought.

28. One other issue, which we raised with Richard Heaton, is whether the individual Member whose Bill is the subject of the request for Consent should be able to see a copy of the letter sent by the Department to the Royal Household. In a letter to our Chair, Richard Heaton commented that "correspondence between the Government and the Royal Household is not usually published." He continued:

    However, I hope I can be more positive than that answer at first appears. The Government's role is to ensure that consent is sought when it is required by Parliament. The correspondence between Government Departments and the Royal Household is a matter of routine. These letters set out a description of the provisions which require consent and by when; they do not set out a view on the merits of the legislation. A member will already have been told by the Public Bill Office whether consent is needed and in respect of which provisions, so the substance of the letter should be known to him or her, even if the letter itself is not disclosed.[50]

He enclosed with his correspondence a template of the letter that Departments use to request Consent. This is published with his written evidence.

29. We entirely accept that correspondence between the Government and the Royal Household is not normally published. However, given that the correspondence in this instance is a matter of routine, we recommend that, when Consent is being sought for a Private Member's Bill, the letter from the Department to the Royal Household should be copied to the Member concerned if the Member requests this. This would increase transparency and remove any perception of undue Government influence.

Perception of undue influence by the monarchy

30. Professor Brazier cites as one of the arguments against retaining Consent: "Royal consent, and the process through which the Royal Households are engaged before it is obtained (or renewed in relation to later amendments to Bills) fuel speculation that influence is being brought to bear on the content of legislation of an unknown kind."[51] Dr Kirkhope comments: "It is not known how often Bills have been amended as a result of representations on behalf of the Sovereign or the Prince."[52] There is a perception in some quarters that Consent enables the Queen and the Prince of Wales directly to influence the legislative process. There are several reasons for the existence of this perception. Until recently, there were few details in the public domain about how Consent operated. It is thus not surprising that people drew their own conclusions from the little they did know. Consent is complex and arcane and even now there is more information publicly available, the process can be difficult to understand. Professor Brazier comments:

    Understanding when royal consent is required, and the procedures that are to be followed, fill several pages in Erskine May and in the document from the Office of the Parliamentary Counsel. There is a complexity surrounding the topic that will completely defeat the interested citizen and, I expect, even some lawyers and parliamentarians. There is at least a case for greater clarity being brought to the matter, possibly through a non-legal codification, in as clear terms as possible, of the requirements and procedures relating to royal consent.[53]

31. The details of the process themselves sometimes seem to support the view that the Queen has more than a formal role. Professor Brazier comments of the procedure set out in the Cabinet Office Guide to Making Legislation and the Office of the Parliamentary Counsel pamphlet:

    This procedure indicates that royal consent requires more than the Sovereign being merely asked for formal approval. It raises the question of why such minimum notice, full explanation, advice from the Sovereign's solicitors, and continuing information, are required. By contrast, a request for royal assent to legislation is entirely formal—which is as it should be. After legislation has passed both Houses (or under the Parliament Acts) royal assent by the Sovereign to it is a constitutional formality.[54]

Dr Tucker comments of the details of the Consent process as set out in the Cabinet Office Guide to Making Legislation and the Office of the Parliamentary Counsel pamphlet: "This process is wholly inconsistent with any characterisation of the procedure as symbolic. It is designed to facilitate genuine reflection and to elicit informed Consent."[55]

32. When we put this point to Richard Heaton, he replied:

    It [Consent] is a part of the constitution that is taken seriously and duly attended to. It is more than a pure formality. It does require a substantive letter and the letter writer to apply their mind to it. As you have seen from the guidance, the letter is copied to Farrer's. It is not for me to speculate, but no doubt Farrer's can explain to the royal household quite what this Bill is doing. There are substantive bits of correspondence going on. It is one of the things that you have to cover when you are preparing a Bill.[56]

However, he also told us that, to the best of his knowledge, legislation was never altered as a result of the Consent process. He added:

    There is correspondence going between Departments and the palace. I don't necessarily see the entirety of the correspondence. I suppose, thinking about it, if the amendment had required the drafter to do something differently I would know. Certainly, in the office knowledge there is no change, which probably suggests that there is no change, but I am just a bit nervous about giving a comprehensive answer.[57]

33. The written evidence from the Clerks of the two Houses draws attention to the distinction between the constitutional role of the Queen and the Prince of Wales in respect of Consent, and their personal positions:

    The distinction between the constitutional duty of the Prince of Wales to act on the advice of the Government in respect of his interest and his personal position in relation to a private Bill was demonstrated in 1970 when the Prince of Wales, as Duke of Cornwall, both consented to the Plymouth and South West Devon Water Bill and petitioned against it.[58]

Private Bills are Bills that confer particular powers or benefits on a person or body of people in addition to, or in conflict with, the general law. Erskine May explains: "The persons who are applying for powers or benefits appear as petitioners for the bill, while those parties who fear that their interests may be adversely affected by its provisions have the opportunity to oppose it."[59] In the instance referred to above, the Price of Wales granted his Consent to the Bill, in a formal constitutional capacity, and also used the process open to any interested parties to petition against the Bill.

34. Republic said that they "accept that the withholding of consent—ie the exercise of the 'veto'—has only ever occurred on the advice of the ministers", although they added that this was "not their primary concern". Their primary concern was: "Because this process is conducted in secret, MPs and the public have no way of knowing if and how legislation has been altered during the consent process."[60]

35. When the Queen or the Prince of Wales grant their Consent to Bills, they do so on the advice of the Government. We have no evidence to suggest that legislation is ever altered as part of the Consent process. The fact that the Prince of Wales has in the past both granted his Consent to a Bill, in a constitutional capacity, and petitioned against it, in a personal capacity, indicates the formal nature of the process. However, the process of Consent is complex and arcane and its existence, and the way in which the process operates, undoubtedly do fuel speculation that the monarchy has an undue influence on the legislative process. The fact that Consent is sometimes characterised as a veto underlines this point. In reality, it is a veto that could be operated by the Government, rather than the monarchy.

Constitutional justification

36. Our witnesses expressed a variety of different views about the constitutional justification for Consent. Dr Tucker states "that the practice of Consent lacks a compelling constitutional justification".[61] He comments:

    Any involvement of the Prince of Wales in the legislative process is constitutionally unacceptable. My arguments about justification will accordingly focus mainly on the Queen.

    The position of the Queen is markedly more subtle. Her involvement in the legislature must be sufficient to sustain the constitutional tradition that our legislature, properly understood, consists of the Queen-in-Parliament. But beyond that, no substantive involvement in the legislative process itself is constitutionally appropriate, except the (contested) possibility of intervention in wholly exceptional (and generally implausible) circumstances. Even the most radical (as far as I am aware) contemporary endorsement of the involvement of the Queen in legislative politics includes the pointed concession that her role "should be overall minimal to the point of being non-existent".[62]

He continues:

    These principles do not leave much room for the operation of any practice of Consent. The procedures which surround the Royal Assent exhaustively capture the appropriate level of legislative involvement by the Queen; they neatly combine the necessary symbolism of the Queen-in-Parliament with a certain (but very modest) ambiguity about the possibility of any substantive involvement in legislating. This has an important consequence for an evaluation of Consent requirements: the best that could be said of them is that they are redundant as the Queen's role in legislating is already exhaustively and appropriately constitutionalised.[63]

37. Professor Brazier states that one possible reason which could used to justify the continuance of Consent is: "The requirement of royal consents is a matter of comity between Parliament and the Crown." He continues:

    In other words, before Parliament sets to work on legislation that affects the Sovereign or The Prince of Wales (as Duke of Cornwall), they should be informed and have the ability to comment on that legislation. In my view courtesy requires timely information being given to the Royal Households. The Sovereign also has the conventional rights to be consulted, to encourage, and to warn Ministers. But to have a theoretical veto on top of that is another matter. And its existence also raises the question—which I cannot answer—of what transpires between Ministers and Departments and the Households when consents are sought.[64]

On Consent in relation to prerogative powers, he states:

    In relation to the royal prerogative, it is for Parliament if it wishes to abolish or amend a prerogative rule...Any arguments that a Sovereign wished the Government to consider about the prerogative (or any other official business) can be raised with the Prime Minister using the Sovereign's conventional power to be consulted, to advise, and to warn.[65]

38. Professor Blackburn states:

    The case for maintaining the Royal Consent is simply ceremonial, forming part of the public theatre surrounding the monarchy today, enjoyed by many. It is part of the wide-ranging conventional courtesies owed to the Queen and Prince of Wales, supporting their dignity and national memories of the historical traditions of monarchy from centuries past when they presided over the operation of the state in all its forms, executive, legislative and judicial.[66]

He continues:

    It might be courteous for a government department to give the Queen's or Prince's offices notice of pending policy decisions that significantly affected the Crown estates or the royal Duchies, but this does not justify what is effectively a scrutiny reserve and power of veto over parliamentary proceedings on a Bill.[67]

39. Richard Heaton told us:

    The sovereign is one of the tripartite parts of legislature. So at the Royal Assent end of the process it is very clear that the House of Commons, the House of Lords and the sovereign all have to give their agreement to a piece of legislation. The Queen's consent starts from a different end of the telescope, which is the comity between Parliament and the sovereign. The sovereign has a range of prerogative and other interests, which Parliament on the whole does not encroach into. The Queen's consent is the sovereign saying, "I put these at the disposal of Parliament for you to legislate as you see fit." It is a different sort of process.

    ...I suppose for me—and you will take a view on this—it is a living reminder of the constitutional settlement whereby the sovereign actually does, as a matter of constitutional convention, place her interests at the disposal of Parliament. It is one of those sort of customary, slightly formal aspects of our constitution that reminds us of how we have got to where we are. We do have a sovereign with prerogative powers, but as a matter of convention the sovereign places those prerogative powers at the disposal of Parliament, which is consistent with a constitutional monarchy.[68]

40. Sir Robert Rogers told us: "I see it [Consent] as part of the comity between what are after all the three parts of Parliament, the Queen, the Queen in Parliament and the two Houses."[69] David Beamish said that he agreed and added: "So in one sense it is not necessary, in that this Committee could recommend its abolition, but it chimes with other ways in which the three parts of Parliament work together."[70]

41. The United Kingdom is a constitutional monarchy. The Queen has the right to be consulted, to advise and to warn. But beyond that she should have no role in the legislative process. Consent serves to remind us that Parliament has three elements—the House of Commons, the House of Lords, and the Queen-in-Parliament—and its existence could be regarded as a matter of courtesy between the three parts of Parliament. Whether this is a compelling justification for its continuance is a matter of opinion.

Could the process be simplified?

42. One minor simplification has already been made to the process of Consent. In the past, resignification was needed for a Bill that had not received Royal Assent in one parliamentary session and was re-introduced in a subsequent session. This is reflected in the December 2012 Office of the Parliamentary Counsel pamphlet, which states: "Re-signification may also be necessary if consent has been signified in one session and the bill is then carried over into the next session."[71] The revised version of the pamphlet, dated October 2013, states: "On carry-over from one session to the next, the recent practice has been that Queen's consent need not be re-signified—see, for example, the bill for the Constitutional Reform and Governance Act 2010. It is expected that this precedent will be followed in the future."[72] We recommend that if a Bill is re-introduced in a subsequent session the precedent of not seeking resignification of Consent be followed.

43. The written evidence from the Clerks of the two Houses suggests several ways in which the process of Consent could be further simplified and made more transparent. First, the Clerks comment:

    At present consent has to be signified personally by a Privy Counsellor in the House where the Bill is to be considered. The fact that consent has been obtained could instead be noted on the Order Paper (in the Commons this would be in the same way as noting the Queen's recommendation to a Money Resolution). That would avoid the possibility of the absence of a Privy Counsellor preventing the question being proposed on a Bill.[73]

This seems a sensible, albeit minor, change. We recommend that Consent should no longer need to be signified personally by a Privy Counsellor. Consent should instead be indicated on the Order Paper. This would prevent a situation in which the absence of a Privy Counsellor meant that Consent could not be signified, and the debate could not take place, thus delaying progress on the Bill.

44. The two Clerks continue:

    The process could also be made more transparent. At present, unless consent is required to be signified on second reading, Members are unaware that a Bill requires Queen's or Prince's consent until after the Bill has (in the Commons) completed its committee stage or (in the Lords) until the day of Third Reading. The requirement for consent could be put on the Order Paper of the relevant House as soon as the Bill had been printed.[74]

Again, this small change seems sensible. To improve transparency, we recommend that, if Consent is required for a Bill, the requirement be published as soon as the Bill is printed.

45. The Clerks also state that we "may wish to consider whether the distinction between signification of consent on second or third reading is still valid or whether consent should instead be signified at the same stage on every Bill."[75] They continue:

    As amendments made in Committee or on consideration occasionally require Queen's consent it would be preferable to delay signification of consent until third reading. That would also mean that there was more time for private Members to obtain consent. Commons private Members' Bills are sometimes printed only days before second reading and it might not be apparent until the final version was available that consent would be required.[76]

Delaying the signification of Consent until Third Reading in all cases has several advantages. First, it would, in a small way, simplify and clarify the process. Secondly, it would facilitate the recommendation we made earlier in this report that the Government should as a matter of course seek Consent for all Private Members' Bills for which the House authorities have decided Consent is needed. If Consent were not required until Third Reading is it more likely that Private Members' Bills would have been published in time for the Government to seek Consent. Thirdly, it would make it more difficult for the Government ever to use the process of Consent as a way of curtailing debate on Private Members' Bills it did not like: at the very least, there would be a Second Reading debate, a Committee stage debate, and a Report stage debate, before the Bill's progress was halted. Fourthly, it would reduce the need for Consent to be resignified because amendments had been made to the Bill. Currently, in some instances Consent is signified at Second Reading, and in others at Third Reading. We recommend that Consent be signified at Third Reading in both Houses, in all instances.

42   Dr Adam Tucker (QPC 4) para 29 Back

43   Professor Rodney Brazier (QPC 7) para 22 Back

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

45   Republic (QPC 5) para 7 Back

46   Q15 [Sir Robert Rogers] Back

47   Q15 [David Beamish] Back

48   Q12 [Sir Robert Rogers] Back

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

50   Richard Heaton, First Parliamentary Counsel (QPC 11) Back

51   Professor Rodney Brazier (QPC7) para 25.4 Back

52   Dr John Kirkhope (QPC 06) para 2.8 Back

53   Professor Rodney Brazier (QPC7) para 25.1 Back

54   Professor Rodney Brazier (QPC 7) para 14 Back

55   Dr Adam Tucker (QPC 4) para 28 Back

56   Q27 Back

57   Q33 Back

58   Clerk of the Parliaments and Clerk of the House of Commons (QPC 09) para 21 Back

59   Erskine May: Parliamentary Practice, 24th Edition (2011), p 922 Back

60   Republic (QPC 5) para 3 Back

61   Dr Adam Tucker (QPC 4 para 3 Back

62   Dr Adam Tucker (QPC 4) paras 16 to 17.Dr Tucker is quoting Yann Allard-Tremblay, 'Proceduralism, Judicial Review and the Refusal of Royal Assent' (2013) 33 Oxford Journal of Legal Studies 379, 392. Back

63   Dr Adam Tucker (QPC 4) para 19 Back

64   Professor Rodney Brazier (QPC 7) para 24.2 Back

65   Professor Rodney Brazier (QPC 7) para 25.6 Back

66   Professor Robert Blackburn (QPC 10), para 11 Back

67   Professor Robert Blackburn (QPC 10) para 19 Back

68   Q34 Back

69   Q5 [Sir Robert Rogers] Back

70   Q5 [David Beamish] Back

71   Office of the Parliamentary Counsel, Queen's or Prince's Consent, December 2012, para 5.20  Back

72   Queen's or Prince's Consent, October 2013, para 5.20 Back

73   Clerk of the Parliaments and Clerk of the House of Commons (QPC 9) para 26 Back

74   Clerk of the Parliaments and Clerk of the House of Commons (QPC 9) para 27 Back

75   Clerk of the Parliaments and Clerk of the House of Commons (QPC 9) para 28 Back

76   Clerk of the Parliaments and Clerk of the House of Commons (QPC 9) para 28 Back

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Prepared 26 March 2014