A Question Of Titles

Buckingham Palace announced yesterday that the Duke of York will no longer use the style of ‘His Royal Highness’ and will give up his honorary military appointments and patronages. This comes after a US judge declined to dismiss Virginia Giuffre’s civil suit alleging that the Duke sexually assaulted her when she was a minor. While his departure from public life is warranted given the grave accusations against him, many may find it unsatisfactory that he continues to have the style of HRH (even if he no longer uses it) and remains a Royal Duke. Unfortunately, stripping him of these royal accoutrements is a tall order.

As a matter of law, the Queen can’t unilaterally take away the Duke’s peerages.[1] As with other peerages, they can only be removed by an Act of Parliament. This hasn’t happened since 1919 when four peers lost their titles after they fought against the UK in World War I (however, the relevant legislation may provide a template for the future; more on that later). It’s also worth noting that, since hereditary peers aren’t entitled to automatic seats in the House of Lords, the Duke’s peerages no longer have any constitutional significance.[2]

The situation surrounding the titular dignity of prince/princess and the style of HRH is more complicated. All of the Sovereign’s children are entitled to them under George V’s Letters Patent of 1917. They’re not granted on an individual basis, at least not to the Sovereign’s children.[3] No child of the Sovereign has lost these dignities in modern times,[4] but the wives of princes have lost them in certain circumstances. Most notably, Diana, Princess of Wales, and Sarah, Duchess of York, lost the style of HRH upon their divorces, though that was done as an amendment to the general rules rather than as the revocation of individual titles. And when George VI confirmed that the Duke of Windsor was an HRH following the latter’s abdication, he declared that the Duke’s wife and children would not enjoy the style. Since the Queen is the fount of honor, she could still strip the Duke of his princely style and title, but there is no template ready to be dusted off.

The fact that the Duke and Duchess of Sussex were also obliged to stop using their princely styles and surrender their patronages creates a highly unfortunate parallel. Whatever one might think of the Sussexes’ decision to step down as working members of the Royal Family, they aren’t in the same class as someone accused of sexually assaulting a minor.

I’ve said before that there should be a way for members of the Royal Family to forfeit their status in actuality as well as in practice. The controversy surrounding the Duke of York only underlines the need for such a mechanism. A situation where people hold onto their honorifics even though they have left royal life is inherently problematic regardless of the underlying reasons for their departure.

Perhaps it’s time for Parliament to give the Sovereign the power to revoke a peerage in certain circumstances. This isn’t just an issue for the Royal Family: right now, a person who is expelled from the House of Lords still gets to keep their title. The Titles Deprivation Act 1917 provides an example of how this could be done.[5] A modern Act might provide that, if a peer is expelled from the House of Lords or commits a serious crime, the Sovereign may make an Order in Council depriving them of their peerage.[6] However, the Act would need to include safeguards to ensure it couldn’t be abused.[7] Expulsion from the House of Lords is relatively straightforward, but the question of what constitutes a ‘serious crime’ (and whether the peer committed the alleged offense) would require careful consideration.

As for princely styles and titles, Craig Prescott of Bangor University has suggested that they should be granted to specific individuals instead of automatically conferring them on a general class of people. It would need to be handled carefully to avoid ensnaring the Royal Family in never-ending controversy, but at the very least, individual grants would make it easier to revoke these royal honorifics when necessary.

It may be tempting to dismiss the present difficulties as aberrations, but that would be unwise. The immutability of royal titles seems increasingly anomalous in a society that insists on transparency and accountability from its leaders. Tweaking the rules may be the best way to ensure that these titles don’t disappear entirely.

[1] When he was created Duke of York, he was also created Earl of Inverness and Baron Killyleagh.

[2] Although the Duke was formally introduced into the House of Lords on February 1, 1987, he did not take part in parliamentary business.

[3] The late Duke of Edinburgh received the style of HRH when he married the then-Princess Elizabeth (this was necessary because, while a wife takes the status of her husband, a husband does not take the status of his wife). After she became queen, she made him a Prince of the United Kingdom.

[4] George V’s Letters Patent restricted the title of ‘prince’ and the style of ‘Royal Highness’ to individuals within the Sovereign’s immediate family and discontinued the style of ‘Serene Highness’ entirely. While this meant that certain individuals lost the title of prince and the style of HRH/HSH (e.g., Prince Alexander of Teck), they were members of the extended Royal Family rather than the Sovereign’s children.   

[5] Despite what some people seem to think, the Act didn’t establish a general mechanism for revoking titles. It only applied to peers who fought against the King and his allies in World War I.

[6] It’s fair to ask whether peers should be allowed to voluntarily surrender their peerages. Under the Peerage Act 1963, a hereditary peer can disclaim a newly inherited peerage, though they must generally do so within one year of inheriting it. A disclaimed peerage effectively lies dormant during the holder’s lifetime and then reemerges upon their demise to pass to their heir as normal. However, there is no analogous provision for life peerages. Traditionally, it has been thought unnecessary to provide one since a life peer already consented to their ennoblement. But allowing someone to rid themselves of a life peerage after the fact might be prudent.

[7] For a critique of the 1917 Act, see Ann Lyon, “A Reaction to Popular Hysteria: the Titles Deprivation Act 1917,” Liverpool Law Review, vol 22 (2000), 173-203.

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Some Thoughts On The Dissolution And Calling Of Parliament Bill

The House of Lords is now considering the Dissolution and Calling of Parliament Bill that was passed by the Commons back in September. It would repeal the Fixed-term Parliaments Act 2011 and restore the pre-2011 status quo whereby the Sovereign dissolved Parliament at the request of the Prime Minister. Regular readers of my blog will know that I’m no fan of the FTPA, but I still have misgivings about its repeal.

The FTPA hasn’t exactly been a roaring success. Although it declared that a Parliament should last for five years, only one Parliament since then has actually run the statutory course. Both Theresa May and Boris Johnson were able to obtain early General Elections, though they went about it in different ways.

The 2017 election is particularly illuminating. After opinion polls showed the Conservatives with a convincing lead over Labour, May saw an opportunity to obtain an enhanced majority that would strengthen her hand in the Brexit negotiations.[1] Even though the FTPA was supposed to prevent this sort of opportunistic behavior, most Opposition MPs voted for an early election under section 2(1) of the FTPA (the final vote was 522 to 13).

MPs were less compliant in 2019 and repeatedly thwarted Johnson’s attempts to secure an early election under the FTPA. However, this was an unusual situation colored by fear of a no-deal Brexit. If it hadn’t been for that, the 2017 precedent suggests Johnson would’ve had less difficulty securing an early poll. In the end, the lack of a 2/3 majority didn’t prevent an early election since the Government was able to secure the passage of special legislation to circumvent the FTPA.[2]

A fixed-term Parliament regime that isn’t part of a codified constitution requires politicians to show a degree of self-restraint. It can only work if they’re willing to respect those restrictions even when it’s disadvantageous to do so, yet both the Tories and Labour made manifesto commitments to repeal the FTPA at the last General Election. This suggests that, whatever the virtues of fixed-term Parliaments, they are unlikely to be workable in Westminster without a shift in political culture.[3]

All that being said, the Dissolution and Calling of Parliament Bill is not without issues of its own. The bill assumes that the royal prerogative power of dissolution can be revived by repealing the FTPA, but this assumption is debatable. The royal prerogative is a creature of common law rather than statute, and while it’s agreed that statutes may supersede prerogative powers,[4] it’s not clear what happens if those statutes are subsequently repealed. Does the old prerogative power spring back as if nothing happened, or can it only be recreated as a statutory power? This isn’t just an academic question: the nature of the revived dissolution power could potentially affect how the courts interact with it in the future. Although clause 3 of the bill purports to make the revived prerogative power non-justiciable, there’s no guarantee the courts will interpret it in the way the Government intends.[5]

If the courts can’t police the power of dissolution, that leaves the Monarch as the only safeguard. Traditionally, dissolution was an area where the Sovereign retained an element of discretion. This was reflected in the terminology: the Prime Minister couldn’t advise a dissolution; he could only request one. In 1950, King George VI’s Private Secretary, Sir Alan Lascelles, wrote a pseudonymous letter to The Times in which he set out the circumstances in which the Monarch might refuse a dissolution:

In so far as this matter can be publicly discussed, it can be properly assumed that no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.[6] 

In practice, it’s difficult to say how modern monarchs wielded their discretion under the old system. It’s been claimed that Elizabeth II has never refused a dissolution, but Anne Twomey has suggested this might not be the case:

In relation to monarchs and exercising reserve powers, nearly always it happens without ever being formally done. There is no formal rejection of a Dissolution, because it is all done informally by hints, suggestions and queries. “Is that wise, Prime Minister? Would it really be appropriate to do this now?” That is how the reserve powers work in practice. We really cannot say whether that has been exercised during Her Majesty’s reign, so I would not be suggesting at all that the power had in any way disappeared.[7]

The Government’s initial set of ‘Dissolution Principles’ suggested that the Monarch should dissolve Parliament on the advice of the Prime Minister, but this approach was criticized by the Joint Committee on the Fixed-term Parliaments Act. The Government accepted the criticism and acknowledged that the Sovereign will retain an element of discretion once the FTPA is repealed.

While returning the dissolution power to the Sovereign is in accordance with constitutional tradition, it has the potential to make life difficult for the Palace. In modern times, the Crown is expected to remain above the political fray.[8] The rationale for this approach is understandable. A purely ceremonial role is arguably the least controversial one for a hereditary head of state in a 21st century parliamentary democracy (though, as Professor Twomey has noted, that approach carries risks of its own[9]). But if the Crown is going to police the dissolution power, the Monarch must be prepared to make a potentially controversial foray into the political arena.

It was arguably easier for the Sovereign to police the constitution when the culture of deference was even stronger than it is today. The prevailing norms meant that they could discourage problematic requests for dissolution without the need for a formal confrontation, and they didn’t need to worry about ministers publicly attacking them for their decision.[10] But in a less-deferential age where the ends increasingly seem to justify the means, a modern government might not be so chary. Boris Johnson’s willingness to ask the Queen to grant a controversial prorogation in 2019 suggests that modern politicians are less reticent about dragging the Crown into controversy if it suits their aims.[11] The vitriolic reaction to the Brexit-related court decisions[12] provides a glimpse of what the Monarch might encounter if they refused a dissolution request from a popular Prime Minister.[13] If the Sovereign can’t effectively police the dissolution of Parliament, that’s a problem.

At this point, it seems all but certain that the Dissolution and Calling of Parliament Bill will become law. One only hopes that the UK isn’t storing up problems for the future.

[1] May’s gambit ultimately backfired. She lost her majority and had to enter into a confidence and supply agreement with the Democratic Unionist Party to stay in power.

[2] The Early Parliamentary General Election Act 2019. While an early election under the FTPA required a supermajority, legislation only requires a majority.

[3] I suspect nothing short of constitutional codification would make fixed-term Parliaments viable at Westminster.  

[4] See, for example, Attorney-General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1, [1920] AC 508, 526-528.

[5] Despite the wording, academic commentary is divided over whether the clause will achieve its objectives. Lord Lisvane and Sir Malcom Jack (both former Clerks of the House of Commons) both thought that it wouldn’t necessarily prevent judicial review of the power of dissolution, while Professor Philippe Legassé of Carleton University and Lord Sumption (a former Justice of the UK Supreme Court) thought it would probably be enough to dissuade the courts.

[6] [Sir Alan Lascelles], “Dissolution of Parliament: Factors in the Crown’s Choice,” The Times (London), May 2, 1950.

[7] Her comments are in her response to Q184.

[8] The truth of the matter might be more complicated. Even if the Queen isn’t a political actor in the conventional sense of the term, she still wields considerable influence. However, the exercise of this influence is difficult to document thanks to a strong culture of deference that’s underpinned by statute (e.g., section 37 of the Freedom of Information Act 2000 prevents the disclosure of “communications” with the Sovereign and other royal figures). We likely won’t know the full story of her influence until well after her death.

[9] “But if you say that the Queen is simply an automaton—just a rubber stamp who acts on advice and nothing else—that makes her very vulnerable in your political system, because it leaves her as a tourist attraction. One day, you will find another tourist attraction is more attractive and cheaper, and the monarchy can be tossed out with that. It is actually in the interests of the monarchy and its survival in the United Kingdom that it is seen as having this non-partisan role of protecting the constitution—being the last stopgap to do that. That is what preserves the monarchy in your system.” This comes from her evidence to the Joint Committee on the FTPA (Q185).

[10] For example, Queen Victoria had a very turbulent relationship with William Gladstone and pushed the envelope of constitutional propriety on a number of occasions, yet he did not publicize their clashes.   

[11] The fact that the Queen was still criticized for granting Johnson’s request even though there was a constitutional argument for doing so shows how scenarios like these could become no-win situations for the Palace.

[12] The Daily Mail infamously denounced the High Court judges as ‘enemies of the people’ after they ruled against the Government in R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).

[13] A long-serving and popular monarch like Elizabeth II might have enough clout to withstand such attacks, but not every sovereign will have that level of public esteem.

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The Prime Minister, The Queen, And Ecclesiastical Appointments

Earlier this year, there was some debate over whether or not Boris Johnson had run afoul of section 18 of the Roman Catholic Relief Act 1829. There were reports that he’d converted to Roman Catholicism, and Roman Catholics are barred from advising the Sovereign on ecclesiastical appointments.[1] Since then, the situation has been murky. Ben Lewis filed a Freedom of Information request in a bid to shed light on the situation, but Downing Street’s answer is something of a mess and only raises more questions.

No. 10 claimed that “[u]nder reforms introduced in 2007 by the then Prime Minister, the Rt Hon Gordon Brown, the Prime Minister does not choose or advise on Church appointments. His or her role is confined to conveying the name of the nominated candidate to The Queen.”

It’s true that, for diocesan bishops, the Crown Nominations Commission gives the Prime Minister a single name which he passes along to the Queen. But this doesn’t mean the Prime Minister isn’t advising Her Majesty in a constitutional sense. Indeed, the Governance of Britain green paper (which was cited in Downing Street’s reply) explicitly stated that “The Queen should continue to be advised on the exercise of her powers of appointment by one of her Ministers, which usually means the Prime Minister.[2]

With one exception, Brown’s changes to the ecclesiastical appointment process weren’t enshrined in law.[3] Consequently, from a constitutional standpoint, the Prime Minister retains unfettered discretion when advising the Queen on these matters. While it seems unlikely that a modern Prime Minister would try to assert themselves the ecclesiastical sphere, it can’t be ruled out, either. In 1997, Tony Blair rejected both of the Crown Appointments Commission’s candidates for the Bishopric of Liverpool even though Prime Ministers had chosen a candidate from the first slate of names for twenty years.[4]

One wonders if Downing Street has considered the wider implications of their argument. If the Queen is actually acting on the recommendation of the Crown Nominations Commission rather than the Prime Minister, it’s debatable whether she is obliged to accept their submissions. Ministerial advice has constitutional weight because ministers are part of a government that is accountable to Parliament (and ultimately the electorate). The accountability of the Crown Nominations Commission, on the other hand, is debatable.[5]

This whole affair is decidedly strange. If Johnson is, in fact, a Roman Catholic, he’d be better off letting another Minister of the Crown advise the Queen on ecclesiastical appointments instead of trying to hand-wave the 1829 Act away.

[1] This provision is ripe for repeal along with the similar prohibition against Jews advising the Sovereign on ecclesiastical appointments. Even if the Crown Nominations Commission didn’t exist, a Roman Catholic Prime Minister would find it incredibly difficult to use their influence to subvert the Church of England.

[2] Back in June, an anonymous No. 10 source told The Sunday Times that the 1829 Act was an issue and the Lord Chancellor would take over the Prime Minister’s role in making ecclesiastical appointments. It seems that never actually happened.

[3] Section 1 of the Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010 does allow diocesan bishops to submit a single name to the Queen when filling suffragan bishoprics (under the Suffragan Bishops Act 1534, they had been required to submit two names). The current practice is for the Prime Minister to recommend that candidate to the Queen, but as with other appointments, they are not legally obligated to follow this convention. 

[4] The first candidate on the list was usually recommended to the Queen, though Margaret Thatcher went with the second candidate on a few occasions.

[5] While the Crown Nominations Commission includes elected representatives of both the General Synod and the relevant Vacancy in See Committee, its deliberations are conducted in secret. Both the Archbishops’ Secretary for Appointments and the Prime Minister’s Secretary for Appointments also play a key role in its proceedings even though they aren’t voting members.  

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No, The Lord Chancellor And The Lord President Can’t Vote In The House Of Lords

An article in the Daily Telegraph has claimed that the Lord Chancellor and the Lord President of the Council have “archaic rights” to vote in the House of Lords even though they aren’t peers (the article is behind a paywall, so I’m not linking to it). This comes from an anonymous “senior MP” who suggests that they could use this purported right to help the Government win close divisions in the House of Lords over the Northern Ireland protocol. While the basis for this notion isn’t specified, it’s likely inspired by section 8 of the House of Lords Precedence Act 1539. If that’s the case, the argument is specious.

The section in questions states:

And that if any person or persons which at any tyme hereafter shall happen to have anye of the saide offices of Lorde Chauncelor Lorde Treasorer, Lorde Precident of the Kings Counsell, Lorde Privey Seale or Chief Secretorie, shalbe under the degree of a Baron of the Parliament, by reason wherof they can have noe interest to give any assent or dissent in the saide House, that then in everie such case suche of them as shall happen to be under the saide degree of a Baron, shall sitt and be placed at the uppermost parte of the sakkes in the middes of the saide Parliament Chamber, eyther there to sytt uppon one fourme or uppon the uppermost sakk, the one of them above the other in order as is above rehersed.

While the Act does allow officeholders who aren’t peers to be present in the Upper House, it doesn’t follow that they’re somehow ex-officio members. While there were commoner Lord Chancellors/Lord Keepers, they could only speak in debate or vote if they were Lords of Parliament. Otherwise, they were limited to formal proceedings such as putting the question.[1] The Lord President was usually a member of the House of Lords until the 20th century, and commoner Lord Presidents haven’t even sought to avail themselves of their seating privileges in the Upper House.

It’s worth remembering that, in the 16th century, there were a number of individuals who assisted the work of the Upper House without being members, including judges, Serjeants-at-Law, and Masters-in-Chancery.[2] More than likely, this is what the drafters of the Act had in mind. They wanted to ensure the King’s advisors could be on the sidelines to assist[3] the House even if they couldn’t speak in debate or vote. However, the practice of having non-members present in an advisory capacity has largely fallen by the wayside.[4]

Ultimately, the Government can simply create new peers. Granted, that has its own downsides, but it’s better than relying on tortured interpretations of Tudor legislation.

[1] Erskine May, A Treatise Upon the Law, Privileges, Proceedings, and Usage of Parliament (London: Charles Knight & Co, 1844),152-153.

[2] See, G. R. Elton, ed., The Tudor Constitution: Documents and Commentary, 2nd edition (Cambridge: Cambridge University Press, 1982), 246.

[3] Or perhaps even control!

[4] Nowadays, Writs of Assistance go out to senior judges as well as the Law Officers of the Crown. While this theoretically enables them to advise the House, in practice, their attendance is limited to the State Opening of Parliament.

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Lords Clerks Go Wigless

Earlier this week it was revealed that the clerks in the House of Lords will no longer wear their traditional uniform on a day-to-day basis. Gone are the horsehair wigs, court jackets, and white bowties; the gown will remain, but it will now be worn over normal business attire. The customary attire will, however, still appear on ceremonial occasions.[1] The stated rationale for the change is that, since the pool of clerks who can serve at the table has been expanded due to the pandemic, it would be too expensive to procure extra uniforms.[2] This brings the Lords’ practice in line with that of the Commons, where clerks have been dressing down since 2017.

The announcement has provoked a furor in some quarters. It’s not just the change itself that’s controversial, but also the way in which it came about. As Lord Cormack explained to The Spectator, “I don’t think that changes of this sort should be made without consulting the view of the House. There should have been a vote on this and the House should have decided. If it had been the majority view of the House, I would have spoken against it but I would have accepted it – I am a democrat. I deeply regret the way in wish this was decided.”  

Regardless of what one thinks about the traditional uniform, Lord Cormack has a point. If The Spectator is correct, the Clerk of the Parliaments made this change even though it was opposed by the Lord Speaker and the party leaders in the Upper House. Given that level of opposition, the matter should have been subject to wider consultation, or even decided by a vote of the whole House. When Lord Irvine of Lairg wanted to stop wearing knee breeches and tights when presiding over the House, he made his case to the Procedure Committee. They endorsed his proposal, and after debate, the whole House approved it as well.[3] The system worked.

There is an argument to be made for updating the clerks’ dress, but it’s one that needs to be made rather than imposed. To do otherwise just generates unnecessary ill-will.   

[1] The court jacket and bowtie will be worn for introductions and prorogation, while wigs will appear at the State Opening of Parliament.

[2] People on social media have questioned this claim, but without more information about the cost of the uniforms or the way such things are funded, it’s hard to draw firm conclusions on the matter.

[3] Earl Ferrers tabled a motion to block the change, but it ultimately failed.

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The Strange Saga Of The Information Commissioner’s Reappointment

On July 13, 2021, the following notice appeared in The London Gazette:

THE QUEEN has been pleased by Letters Patent under the Great Seal of the Realm dated 9 July 2021 to re-appoint Elizabeth Anne Denham, to be the Information Commissioner, for a further period of three months and thirteen days commencing on the 18 July 2021.

This seemingly innocuous statement was the start of a bizarre saga that ultimately resulted in the Government admitting that the Letters Patent were a legal nullity.

Denham became Information Commissioner on July 18, 2016 under the provisions of the Data Protection Act 1998. Her appointment was for a five-year term; however, the Data Protection Act 2018 repealed the 1998 Act and extended her term until July 2023.[1] Crucially, the 2018 Act also established that the Information Commissioner cannot be reappointed.[2]

In January 2021, the Department for Digital, Culture, Media and Sport (DCMS) announced that Denham had agreed to extend her term of office until October 31, 2021 in order to allow time for the recruitment of her successor (why this was necessary when her term didn’t end until 2023 was not addressed). The Letters Patent of July 9, 2021 purported to give effect to Denham’s decision (though due to a miscalculation, the extension granted by the Letters Patent only runs until October 30, 2021).[3]

The day after Denham’s reappointment was gazetted, Rich Greenhill wrote to the ICO to ask how it could be squared with the provisions of the Data Protection Act 2018. The ICO’s response claimed that, despite the wording of the Gazette notice, Denham had not, in fact, been reappointed.[4] Unsatisfied with that response, Greenhill informed the DCMS that he would seek judicial review of the Letters Patent on the grounds that they were unlawful.[5]

Remarkably, the Government Legal Department responded on September 10 conceding that the Letters Patent of July 9 were indeed unlawful. However, because they were a legal nullity, they argued that this obliviated the need for judicial review. They also stated that, since Denham had asked to be relieved of office with effect from December 1, 2021, any judicial review would be purely academic in nature.

The Government’s actions here are unlikely to be nefarious, but it’s still an unfortunate turn of events. Either the DCMS didn’t realize they were violating the 2018 Act, or they didn’t care. Neither option is particularly attractive. Also, this isn’t the first time this Government has asked the Queen to do something that has later turned out to be a legal nullity. This probably won’t generate the same furor as the 2019 prorogation controversy, but it’s certainly not helpful for the Palace.

It goes without saying that ministers shouldn’t advise the Sovereign to perform unlawful acts. Even though constitutional convention dictates that the blame lies with the minister, it puts the Sovereign in an incredibly awkward position. Their ability to resist unlawful advice is limited. While the Monarch may ask a minister to reconsider their advice, they are generally obliged to accept that advice if the minister persists. There are of course situations where the Sovereign is arguably entitled to refuse advice, but they are exceptional. The Monarch cannot (and should not) be expected to police the constitution on a day-to-day basis.[6]

This might not be the end of the story, either. The Government’s insistence that the Letters Patent don’t need to be formally rescinded is problematic: Jon Baines of Mischon de Reya has suggested it could lead to questions about the validity of Denham’s actions during the remainder of her term. The consequences of the Government’s unforced error could continue to reverberate for some time.

[1] See Schedule 20(19).

[2] See Schedule 12(2)(4).

[3] Rich Greenhill to the Secretary of State for Digital, Culture, Media, and Sport, 17 August 2021, 11 https://www.mishcon.com/assets/managed/docs/downloads/doc_3363/ICO%20reappointment%20-%20letter%20before%20claim%20-%20RG%2020210817%20Redacted.pdf.

[4] Greenhill, 15-17.

[5] Greenhill, 1. He argues that, since the Crown cannot revoke the Letters Patent at common law and none of the statutory mechanisms for removing the Information Commissioner from office have been triggered, judicial review is the only remedy. In the past, the writ of scire facias could be used to obtain the revocation of Letters Patent, but this writ has been abolished. Despite this, Greenhill submits that modern judicial review could be substituted for the former proceedings.  

[6] It’s worth remembering that, unlike an American president, there are few formal checks on the Sovereign’s power. If, for example, the Monarch refused to accept ministerial advice, there would be no constitutional mechanism to circumvent their decision beyond the government resigning in protest.  

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On The Title Of Northern Ireland’s Chief Judge

Dame Siobhan Keegan took office today as Northern Ireland’s chief judge and there has been some debate on Twitter over her decision to style herself ‘Lady Chief Justice’ rather than ‘Lord Chief Justice.’

‘Lord Chief Justice’ is the statutory form of the title, and some have argued that she can’t change it unless the relevant legislation is amended. Others (such as Conor McCormick) have argued that sections 36 and 37 of the Interpretation (Northern Ireland) Act 1954 render a statutory change unnecessary.

I’m agnostic on the question, but the case of Dame Elizabeth Butler-Sloss may be illuminating. When she joined the Court of Appeal of England and Wales in 1988, she was styled ‘Lord Justice Butler-Sloss’ since that was the title used in the Senior Courts Act 1981 (known as the Supreme Court Act 1981 until 2005). In 1994, the Master of the Rolls issued a Practice Note allowing her to be styled as ‘My Lady, Lady Justice Butler-Sloss’ in court. However, the Practice Note stated that the masculine version of the title would remain the official one until Parliament amended the Senior Courts Act 1981. This change was eventually made by section 63 of the Courts Act 2003. It has been argued that section 6(a) of the Interpretation Act 1978 rendered the statutory change unnecessary, yet for whatever reason the Master of the Rolls in 1994 and the drafters of the Courts Act 2003 evidently felt that a statutory change was desirable.

As a practical matter, the question is purely academic. Even if Dame Siobhan’s title is legally ‘Lord Chief Justice,’ the Butler-Sloss precedent shows that day-to-day usage can diverge from the official usage.

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Should Ministers Be Appointed From Outside Parliament?

The Chancellor of the Duchy of Lancaster, Michael Gove, has made headlines by suggesting that ministers need not always be MPs or peers, something the Commission for Smart Government also mooted in a recent discussion paper. While outsiders can make a valuable contribution to politics, non-parliamentary ministers would represent a major constitutional innovation and they would need to be implemented with great care.

The concept of responsible government is at the heart of the British constitution. At the highest level, this means that a government can only hold office if it commands the confidence of the House of Commons. But it also means that individual ministers are accountable to Parliament for their actions. Prime Minister’s Questions is probably the best-known example of this, but other ministers answer questions from MPs and peers as well. On a more informal level, having ministers in Parliament also means that they’re accessible to backbenchers. Since ministers have to go through the Division Lobbies like everyone else, it provides an opportunity for parliamentarians to have a quick chat with them. And, in extreme situations, voters can punish ministers who are MPs by refusing to re-elect them.[1]

The Scottish Law Officers (i.e., the Lord Advocate and the Solicitor General for Scotland) are an exception to the usual convention. Despite being members of the Scottish Government (albeit ones outside the Cabinet), they are not MSPs. Section 27 of the Scotland Act 1998 allows them to participate in parliamentary debates ex officio, but they can’t vote. However, they are not typical ministers. Indeed, there has been a concerted effort to de-politicize their roles, which is why they no longer attend the Scottish Cabinet.

It’s theoretically possible to devise mechanisms of accountability for non-parliamentary ministers at Westminster. Right now, ministers have representatives in the other chamber who can answer questions on their behalf. For example, a minister who sits in the Commons will be represented in the Lords by either a junior minister or a whip.[2] The Commission for Smart Government also notes that existing Commons Standing Orders allow ministers to make statements before the Scottish, Welsh, and Northern Ireland Grand Committees even if they aren’t MPs.[3]

However, it’s debatable whether either of these options would be an adequate replacement for the status quo. Having a minister represented by junior counterparts in both chambers is less than ideal since they won’t have the same level of authority. One also wonders if ministerial questions would receive the same level of attention from MPs or the public if they were relegated to committees. These alternatives also fail to replicate the informal aspects of responsible government.

It’s also worth remembering that there’s already a mechanism to bring outside talent into the government, namely giving someone a peerage. While having a minister in the Upper House does have its disadvantages, it’s still preferable to having them outside Parliament entirely.

Bringing fresh perspectives into government is a worthy goal, but it shouldn’t undermine one of the core tenets of the British constitution.

[1] While somewhat rare, it does happen. In May 1997, no fewer than seven sitting ministers lost their bid for re-election.

[2] Similar arrangements apply to ministers who sit in the Lords, though they will always be represented by junior ministers rather than whips.

[3] Commission for Smart Government, “Ministers: Effective Political Leadership in Government,” (July 2021), 25-26. The relevant Standing Orders are SOs 93(3), 102(4), and 109(4).

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Boris Johnson And Section 18 Of The Roman Catholic Relief Act 1829

Boris Johnson married his partner Carrie Symonds at Westminster Cathedral over the weekend. According to a statement from the cathedral, he is now, in fact, a Roman Catholic. This simple statement raises awkward constitutional questions.

The Sovereign is formally responsible for making a number of appointments within the Church of England, and since the 18th century those powers have usually been exercised on the Prime Minister’s advice. While the 20th century saw the Church gain greater control over ecclesiastical appointments, Downing Street still remains part of the process.[1]

In the case of bishops, the Prime Minister’s role is limited. The Crown Nominations Commission gives Downing Street a single name and the Prime Minister invariably recommends that person to the Queen. However, that arrangement is not enshrined in law. In theory, there is nothing stopping Johnson or any other Prime Minister from rejecting the CNC’s nominee or asking them to provide him with more than one name.

Downing Street retains a more substantial role in making other appointments. For example, No. 10’s Honours and Appointments Secretariat is in charge of finding candidates to fill Crown livings (i.e., those benefices where the Queen is patron).

Johnson’s religious affiliation is an issue because section 18 of the Roman Catholic Relief Act 1829 states that:

It shall not be lawful for any person professing the Roman Catholic religion directly or indirectly to advise his Majesty, or any person or persons holding or exercising the office of guardians of the United Kingdom, or of regent of the United Kingdom, under whatever name, style, or title such office may be constituted, or the lord lieutenant of Ireland, touching or concerning the appointment to or disposal of any office or preferment in the Church of England, or in the Church of Scotland; and if any such person shall offend in the premises he shall, being thereof convicted by due course of law, be deemed guilty of a high misdemeanor, and disabled for ever from holding any office, civil or military, under the Crown.

Roman Catholics and Jews are the only non-Anglicans to be legally barred from advising the Sovereign on ecclesiastical appointments.[2] There is no such disability for Muslims, Buddhists, Atheists, or Lutherans.  

Given the reality of the modern Church/State relationship in Britain, it’s debatable whether these prohibitions are still justified. It’s hard to envision a Roman Catholic Prime Minister trying to install a Jesuit in Canterbury Cathedral. Even if they tried to do something like that, there would be other impediments to stop them.[3] And if these prohibitions are deemed necessary to protect the Church, then they should arguably be extended to all non-Anglicans, not just Roman Catholics and Jews.[4]

Until Parliament changes the law, there is an easy workaround: Johnson can simply allow another Minister of the Crown to advise the Queen on ecclesiastical appointments. The flexibility of the British constitution would be an asset here—since the Prime Minister’s role in church appointments is a matter of convention rather than law, there’s no legal obstacle to that kind of delegation. Alternatively, Parliament could explicitly authorize such an arrangement like they did for the office of Lord Chancellor.[5]

[1] While some have proposed allowing Church figures to advise the Queen on ecclesiastical appointments directly, this wouldn’t be compatible with the precept that a constitutional sovereign always acts on the advice of responsible ministers.

[2] The prohibition on Jews advising the Monarch is contained in section 4 of the Jews Relief Act 1858. It’s not clear if a secular Jew would fall under the prohibition but presumably that would be the case.

[3] For starters, the Queen would be well within her rights to refuse to accept the Prime Minister’s recommendation to appoint a Roman Catholic to a post in the Church of England since doing so would be against the law.

[4] Interestingly, while the Prime Minister is not required to be an Anglican, the Prime Minister’s Appointments Secretary is.

[5] Section 2 of the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974 allows the Queen to allow another Minister of the Crown to carry out the Lord Chancellor’s ecclesiastical functions if the office is held by a Roman Catholic.

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A Brief History Of Royal Assent By Commission

Today Lords Commissioners gave Royal Assent to legislation before proroguing Parliament. Traditionally, the Monarch signified their Assent in the presence of Parliament, but the statute 33 Henry 8 c. 21 allowed Henry VIII to grant Assent without visiting Parliament.

Although the modern short title for this Act is the Royal Assent by Commission Act 1541, it’s a bit of a misnomer.[1] Royal Assent-related provisions were only a small component of the original legislation. It also attainted Queen Catherine Howard and her accomplices and made it treason for an unchaste woman to marry the King without disclosing her sexual history.[2] On January 30, 1542, the Lord Chancellor informed the House of Lords that the King couldn’t give Assent to the bill in person “lest the repetition of so grievous a story, and the recital of so infamous a crime, in the King’s presence, might reopen a wound already closing in the royal bosom.[3]” Consequently, the bill included a clause to allow Henry to signify his Assent by signing Letters Patent, which would then be communicated to Parliament.[4]

The new method was first used to give Assent to the statute 33 Henry 8 c. 21 along with a bill regarding the trial of ‘lunatics’ for treason.[5] To modern eyes, it looks decidedly odd that the legislation authorizing Royal Assent by Letters Patent itself received Royal Assent by Letters Patent. In the words of R. W. Perceval “if Henry VIII had not been so absolute a monarch, and his Parliament so subservient, such a change could probably not have been made, at least without an enabling Act.[6]” 

Although Royal Assent by Commission is now associated with Lords Commissioners wearing parliamentary robes and cocked hats, the Henrician legislation didn’t specify how Parliament was to be informed of the King’s Assent. The only statutory requirement was that the Letters Patent be sealed with the Great Seal and bear the Royal Sign Manual.[7]

When the procedure was first used, the Lord Chancellor simply exhibited the King’s Letters Patent to the Lords and Commons.[8] On the next occasion, the King empowered the Lord High Treasurer to declare his Assent on his behalf.[9] However, Commissions for Dissolution and Prorogation customarily delegated the job to several peers,[10] and by 1547, commissions of peers were also signifying Royal Assent on the King’s behalf.[11]

Despite the new procedure, Royal Assent by the Sovereign in person remained the norm. As Perceval has shown, Assent by Commission was quite rare between 1550 and 1750,[12] though it became more common in the later decades of the 18th century. Perceval suggests that this was likely due to the increasing number of bills being passed. There could easily be 90 or 100 bills awaiting Royal Assent at the end of a session, so a practice began whereby a Royal Commission would take place a few days before prorogation to reduce the number of bills the Sovereign needed to deal with in person. For example, on May 22, 1775 the Lords Commissioners assented to 76 bills, leaving 19 for George III to deal with when he prorogued Parliament on May 26.[13]

From 1800 onward, the Monarch’s physical presence in Parliament was largely restricted to the State Opening and prorogation. Under Queen Victoria, the Sovereign’s presence at prorogation tapered off and then stopped entirely after 1854. That also marks the last occasion that a British Monarch signified the Royal Assent in person at Westminster.

For a little over a century, Royal Commissions were the only way to signify Assent. But by the mid-20th century, the practice had become increasingly controversial. Many MPs resented having to stop what they were doing and go to the Bar of the House of Lords to witness the signification of Royal Assent. The Royal Assent Act 1967 created a third method of signifying Assent: the Sovereign could sign Letters Patent and that fact could be notified to each House sitting separately by their Speakers. While the 1967 Act preserved the Monarch’s ability to grant Assent in person or by Commission,[14] the simpler procedure became the norm. Assent is now only given by Commission when Parliament is prorogued.[15]

The fact that a temporary expedient designed to spare Henry VIII’s blushes went on to become a constitutional norm is quite remarkable. As Perceval observed, it shows “[h]ow unexpectedly that Constitution grows, and what curious materials are built into its fabric![16]

[1] Parts of the Act had been repealed within a few years, but schedule 1 of the Statute Law Revision Act 1948 repealed the remaining provisions except for those relating to Royal Assent. Schedule 2 of the 1948 Act also gave the 1541 Act its modern short title. Although the Act was actually passed in 1542, its official short title places it in 1541 because, prior to 1793, Acts of Parliament took effect retroactively from the first day of the session in which they were passed.

[2] The Act can be found in The Statutes of the Realm, vol. 3, (1817; repr., London: Dawsons of Pall Mall, 1963), 857-860.

[3] “House of Lords Journal Volume 1: 30 January 1542,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 171. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/p171.

[4] Section 3 of the Act established the new procedure while section 5 declared that the use of the new procedure would be “taken and reputed good and effectual to all intents and purposes…Any custom or use to the contrary notwithstanding.”

[5] “House of Lords Journal Volume 1: 11 February 1542,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 176. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/p176.

[6] R. W. Perceval, “Henry VIII and the Origin of Royal Assent by Commission,” Parliamentary Affairs, vol. 3, issue 2, (Winter 1949), 311.

[7] See section III of the statute 33 Henry 8 c. 21.

[8] Perceval, 310. The Lords Journal of 11 February 1542 contains an account of the proceedings in Latin.

[9] “House of Lords Journal Volume 1: 29 March 1544,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 263-265. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/pp263-265

[10] For a Commission for Dissolution, see “House of Lords Journal Volume 1: 29 March 1544,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 263-265. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/pp263-265. For a Commission for Prorogation, see “House of Lords Journal Volume 1: 14 January 1540,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 127. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/p127.

[11] “House of Lords Journal Volume 1: 27 January 1547,” in Journal of the House of Lords: Volume 1, 1509-1577, (London: His Majesty’s Stationery Office, 1767-1830), 289-290. British History Online, accessed April 29, 2021, http://www.british-history.ac.uk/lords-jrnl/vol1/pp289-290.

[12] Perceval, 313.

[13] Perceval, 314.

[14] While it did repeal the statute 33 Henry 8 c. 21, section 1(1)(a) allowed Royal Assent to be “pronounced in the presence of both Houses in the House of Lords in the form and manner customary before the passing of this Act.”

[15] Until 2002, the Governor General of Canada (or their deputy) had to travel to Parliament to assent to legislation. The Royal Assent Act 2002 introduced a simpler procedure using a written declaration while stipulating that the older ceremony should still be used on certain occasions.   

[16] Perceval, 315.

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