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The Peerage (Ireland) Bill was withdrawn from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, but...it 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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