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.