A pointless constitutional abuse

by Carl Gardner on March 16, 2012

By convention, the Queen grants Royal assent to legislation passed by the Lords and Commons. It’s only a constitutional convention that she does so: in other words, she does so because she herself, ministers, MPs and the public regard it as her constitutional obligation to do so. But as a matter of strict constitutional law, she is fully entitled to refuse or withhold her assent. If she did so, the Bill in question would remain an unenacted Bill, and would not become law.

But the last time Royal assent was withheld was by Queen Anne in 1707. It’s obvious that in a democratic society with a constitutional monarch, public lawmaking should not be subject to the will of one unelected person, however grand.

At least, that principle should normally hold. The convention need not be followed if in all conscience the Queen felt it did not bind her in an individual case. At first blush, that might seem to be an atavistic oddity, a strange remnant of the pre-democratic era. But the fact that grant of Royal assent is a matter merely of convention is actually a very useful constitutional arrangement. It gives politicians complete confidence that their legislation will become law – so long as they behave normally. But it also creates an area of uncertainty for them the moment they consider testing the boundaries of democracy and the rule of law.

So: when might it be constitutionally appropriate for the Queen to exercise her undoubted legal power to withhold Royal assent, and in effect veto Parliament’s legislation? I’d say (and I think most constitutional lawyers would agree) that this can only be contemplated where Parliament is attempting to change some democratic fundamental, for instance abolishing general elections, or postponing the next election for, say, five or ten years.

This is indeed one of the examples considered by Rodney Brazier in his excellent book Constitutional Practice which is my go-to reference on tricky constitutional issues (3rd edition, Oxford University Press, page 194):

If a government were to procure the passage of a Bill to prolong the maximum life of Parliament for no proper reason the Queen would certainly be acting as the ultimate guardian of the constitution if she were to veto the Bill.

He goes on to argue that she’d be better advised in most circumstances to dissolve Parliament instead, so that the electorate could decide whether to back the government’s plan.

My point is this: to invoke the possibility that the Queen should withhold Royal assent is not a trivial thing. To go further, and publicly call on her to do so, is effectively to claim we’re in constitutional crisis, and that extreme measures are needed to protect democracy.

Yet a number of organisations say they’ve petitioned the Queen asking her to withhold assent to the Health and Social Care Bill. Apparently they include the NHS Consultants’ Association, the National Pensioners’ Convention, the NHS Support Federation and Keep Our NHS Public.

I’m a strong supporter of the NHS and of the principle that it should be free at the point of use. I’m not a supporter of the coalition government, and have no particular reason to want this Bill passed. But the point is not, and should not be, whether we approve of the Bill or not. However strongly anyone opposes this Bill, it does not put democracy, human rights or the rule of law at stake. To toy with the constitution as part of a campaign like this is a fundamentally unserious act. It’s an insult to democracy and risks bringing the constitution – a much sounder set of arrangements than is often supposed – into disrepute.

It’s worth noting, by the way, that the petitioners haven’t even published their letter to the Queen, citing royal protocol. This takes the biscuit, making this silly petition sillier still. These organisations have not only tried to take our constitution back three hundred years: they’ve done so with an element of secrecy.

I realise it can be argued with some justice that the Health and Social Care Bill itself is not free of constitutional vice. As Lord Owen said in a statement on 9 March, when the government was ordered by the Information Rights Tribunal to publish its own transitional risk register associated with the Bill,

Surely now Liberal Democrat Peers, with a long and proud history of supporting freedom of information, will not go along with any attempt by the Coalition Government to continue with the Third Reading of this Bill in the light of today’s Information Rights Tribunal on the NHS Transition Risk Register.  If the Government insist on appealing to the High Court then they must accept that the Bill is paused until that judgement has been made ..

.. To go ahead with legislation, while appealing to the High Court, would be the third constitutional outrage associated with this legislation.  The first was to legislate within months of the Prime Minister promising in the General Election that there would be no top-down reorganisation of the NHS. The second was to implement large parts of the legislation without Parliamentary authority.

But these matters to not go to the root of democracy, nor does Lord Owen claim they do. He has adopted the more normal and appropriate tactic of tabling an amendment in the Lords.

My problem with the petition isn’t just a matter of constitutional pomposity – I’m concerned about the nature and level of our political debate. Testing the constitution to the limits for partisan purposes is the sort of thing the American populist right goes in for, and there it leads to political gridlock, brinkmanship over critical issues of public finance and deepening cynicism about the political process. I don’t want political debate here to become as coarse, as bar-room lawyerish and as cynical as that – but that’s where this sort of move could drag us if petitions become a more routine part of political squabbling and the Queen becomes selectively politicised. That this tactic – calling upon the unelected monarch to quash Parliament’s will – comes in this case from people who might claim to be on the left – that’s staggering and shameful.

It won’t succeed of course – which is yet another reason to oppose it. The constitutional convention applies, there’s no chance of Royal assent being withheld, and so all the petition amounts to is a stunt.

The organisations that have done this should ashamed, and should apologise for this pointless constitutional abuse. They’d do much better to support Lord Owen’s amendment.

{ 10 comments… read them below or add one }

1 Patrick Troy March 16, 2012 at 20:13

The Queen as a person and as an institution is often abused by parliamentarians. Consider that she is bound NOT to allow her first born to succeed. She cannot also allow the Prince of Wales to succeed should he choose to become a catholic.

So we have an institution that is sexist and bigoted but held up by parliamentarians as a paragon of virtue.

I weep for her.

2 Tim ( @TimRegency ) March 16, 2012 at 20:45

Perhaps they realised the likely futility of tabling an amendment to the Lords, having seen corrupt politicians and the disreputable House abuse ‘financial privilege’ to bring into law the disgusting human-rights abusing Welfare Reform Bill.

3 David S March 19, 2012 at 11:13

Could you please write something a bit more unreasonable? It is becoming rather tedious that I can find nothing to criticise in your posts.

4 ObiterJ March 19, 2012 at 11:46

The right of the Queen to refuse Royal Assent would, I think, only be properly exercisable in some form of extreme situation. Much as I dislike the Health Bill, this is nowhere near the fundamental situation needed.

I think that the alternative of the Queen dissolving Parliament has now gone since the enactment of the Fixed Terms Parliaments Act 2011.

5 simplywondered March 19, 2012 at 18:49

ok carl – i’m calling bollocks on the ‘these bodies should be ashamed’ point. i agree it would be an odd use of the power that supposedly still vests in the monarch (but frankly, it’s such a schroedinger point that nobody knows). i also feel you could criticise it, in that it’s such a quaint misunderstanding of the reality of the situation. and on the ground it won’t work. but ashamed??? nonsense.

so why do i say that?

they are fighting tooth and nail against a bill over which the government allege they have performed ‘consultation’. they have recently and belatedly tried to ‘consult’ with a small cross-section of people they believed agreed with them in a mendacious attempt to veneer the process with pseudo-legitimacy. they smartly stopped ‘consulting’ as soon as they heard the howls from many bodies with relevant experience.

this is a bill many of whose elements are said by the government to be already in place. whoa?!? no words for what that says about the democratic fitness of this government.

the risk register has been denied not just to the poor old gen pub like you and me, but to parliament. so the executive is going against the decision of the appropriate commissioner and refuses to let even the executive read it. supremacy of who exactly?

and national treasure shirley williams (i will spare the vitriol and concentrate on my main theme) suggests that our opposition is based on ignorance. set aside the fact that she directs that also at the doctors (!?!) but what democratic principle does that embody?

when the executive behaves unlawfully what remedy have we? short of violent revolution and civil disobedience we are as powerless as we always have been in an elected (barely) tyrrany.

that’s the problem with convention. as soon as one lying bastard stops using it, the whole thing collapses. hobbes (or locke? i always forget which) and the analogy of the birds nicking twigs from each other’s nests.

they should line up behind owen’s amendment? yes – and i’m sure they do; but as i write that has been heavily defeated. one source (i don’t speak for its accuracy) identifies 28% of tory peers as having interests in the provision of private healthcare and such. i assume they voted against the amendment.

and you know who was seen punching the air as it was defeated? gus o’donnell. nuff said about the real vested interests at work feathering their own nests with the twigs from ours.

i’m pretty clear on who should be ashamed. but they don’t appear to ‘do’ shame. that’s a shame.

and in case you are wondering, yes i am fucking livid about the travesty of democracy that betrays every one of us. that is why i say you can’t simply rely on working via the system. all very nice when it works.
have you read the constitution of zimbabwe? a well-written document, i thought with my limited understanding of constitutional law. not much use, i thought with my (thankfully) equally limited knowledge of the very nasty things that go on there.

as i hope you know, carl, the above comments are made knowing you are someone who respects the rule of law and knows whereof he speaks. my violent criticism of the bill and my perhaps too violent disagreement with your point is intended entirely separately and in no way personally. still fucking livid – did i mention that? oh yeah.

6 Emile Kyriakides March 27, 2012 at 04:02

I get the impression that the groups mentioned are behaving irrationally as an act of desperation. Perhaps to them, health comes before democracy (or what we label as democracy). Others might act in a similar way for other reasons if, for example, a future statute threatened their faith, or their patriotism. If these people are professionals, and include doctors, professors, etc. it is likely that they feel embarassed knowing that their petition will be seen as pointless by the public and, as I already mentioned, desperate, hence their frivolity in not publishing their letter. However, the dilemma that they would have done nothing to preserve their own values still pertains their folly to the extent of trying to stop a charging elephant with a pea-shooter. By that I mean that our way of life, liberal democracy, capitalism, or whatever we want to call it, is weighed down by far more financial gravity than any cause, noble or not, could seriously alter its course. The monarch is just another piece on the chess board, albeit a rather important one. After all, most public law students will be aware, as Carl pointed out, that Queen Anne was the only monarch to refuse assent to a Bill. If this convention is analysed further, according to Adam Tomkins, on p.63 of Public Law (2003) it is highly likely that the monarch would refuse to give royal assent on ‘firm Prime Ministerial advice’. If the separation of powers allowed for a strong parliament in the days following the Glorious Revolution, it follows that certain influential ministers did not desire for the Scottish Militia Bill to be enacted (possibly through fear) and persuading Queen Anne to use her power was the only way to hold back parliamentary sovereignty. Since then the government’s position within parliament appears to have grown in dictating the legislative agenda. The monarch, although still in possession of some disturbing powers has, in effect, become even more of a chess piece (particularly after Macmillan’s manouevre after he resigned due to ill health). If there are any major constitutional changes they are more likely to come through international financial obligations rather than domestic protests. Leviathan remains firmly leashed.

7 AJ McFlea April 11, 2012 at 16:57

Although George V did not withhold Royal Assent for the Government of Ireland Act, the possibility of him doing so was sufficient to delay the Act and the establishment of a Home Rule Parliament, or two Home Rule Parliaments, in Ireland. That delay proved tactically advantageous to Unionists.

8 Tintin July 20, 2015 at 12:19

See http://poseidon01.ssrn.com/delivery.php?ID=513103103009120004099104081081103074097042014048023025121115066117000100113098064124027012010041026121034090068019121118117000017009044015049109024124064084017066026085015005120123083085094099095005122079124019027115126071107090003124104080019105&EXT=pdf&TYPE=2

In 1954, the Clerk of the House of Commons stated:

“The Queen, in giving her Royal Assent to Acts of Parliament, does not depart in
any way from the convention that the Queen acts on the advice of her Ministers. The submission to Her Majesty by the Lord Chancellor (a member of the Government) of the list of bills to receive the Royal Assent accompanied by a draft Commission implies that the Queen is advised to give her assent to them and the Government would have to accept full responsibility for advising the Queen to give her assent.”

Thus the Government could block a bill from becoming an Act. But that would result in negative publicity.

9 Tintin July 21, 2015 at 18:23

Oh my, Anne Twomey has the exact opposite information from 1972: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1007341

It says: “In 1972 a member of the British public, Mr McWhirter, wrote to the Queen arguing that she should not assent to the European Communities Bill 1972 because it would involve a breach of her Coronation Oath. The United Kingdom Law Officers’ Department suggested that he be advised that ‘it is an established convention that the Royal Assent will not be refused to bills which have been passed by both Houses of Parliament and which Ministers advise should receive assent.’8 The reference to Ministers advising upon assent was later deleted from the draft letter because the Lord Chancellor’s Office, upon undertaking further research, discovered that ministerial advice is not in fact tendered before royal assent is granted.9 Instead the letter to Mr McWhirter stated that ‘it is an established constitutional convention – indeed (it might be said) a custom of the realm – that the Royal Assent is not withheld from Bills which have been passed by both Houses of Parliament.’10”

Thus there is ambiguity: one piece of information from the legislature (1954) stating that the executive does counsel the Queen, and another from the executive (1972) stating that they don’t!

10 Tintin July 31, 2015 at 05:27

It really seems absurd from a foreign point of view. A constitutional convention had already been in force for nearly 300 years, it had been described in textbooks of law, it had been taught almost as an axiomatic truth… And then a member of public wrote a letter to Buckingham Palace. Only then did the staff there start examining how the process really works. This is possible only in Britain, I guess. 🙂

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