A while back, the House of Commons Political and Constitutional Reform Committee conducted an inquiry into the effect of Queen’s and Prince’s Consent on the legislative process. Its report displayed a marked ambivalence toward the practice of seeking Royal Consent, and it raised the prospect of abolishing it (though it did not actually recommend such a course of action). However, I think it would be wise for Parliament to do so.
Royal Consent is one of the more arcane aspects of parliamentary procedure. It’s basically the Queen giving Parliament special permission to discuss certain topics, and it has nothing to do with Royal Assent (which is when the Queen turns a Bill into an Act of Parliament). To quote Erskine May (the definitive guide to parliamentary practice):
Bills affecting the prerogative, hereditary revenues, personal property or interests of the Crown, the Duchy of Lancaster or the Duchy of Cornwall require the signification of the Queen’s consent before they are passed. When the Prince of Wales is of age, his own consent as Duke of Cornwall is given.1
The Clerks of both Houses determine whether or not Consent is needed, but the principles they use to make that decision seem byzantine.2 Consent is signified on behalf of the Queen and/or the Prince of Wales by a Minister of the Crown (who must be a Privy Counsellor3).
For Government Bills and Church Measures, Royal Consent will be granted as a matter of course, but for Private Members’ Bills, the situation is less clear cut. There have been a number of cases where a Private Member’s Bill was effectively blocked because Consent was not signified.4 In each of these cases, Consent was withheld because the Government of the day declined to make the necessary arrangements; the Queen did not withhold Consent on her own initiative. However, the current Government’s policy is to seek Consent for all Bills (even those it opposes) since it believes that Parliament should not be precluded from discussing a Bill because of a technicality.5
Royal Consent has been the subject of some chatter in the media recently. Unfortunately, much of it has been rather ill informed, and reporters like to portray Consent as some sort of ‘secret royal veto’ (this sensationalism isn’t confined to the left-wing press, either; even right-wing papers like the Daily Telegraph have shown a willingness to sacrifice accuracy for a catchy headline).
Part of the problem is that the whole process of seeking Royal Consent has historically been rather opaque. In August 2011, a PhD-student named John Kirkhope filed a Freedom of Information Act request seeking the Government’s internal guidance on Consent. The Cabinet Office initially turned him down, but its refusal was overruled by the Information Commissioner and the First-Tier Tribunal. That guidance is now available online. While the Government’s arguments for withholding the guidance had some merit,6 the secrecy didn’t do anything to dispel the idea that there is something sinister about Royal Consent.
It doesn’t help that the administrative arrangements for Royal Consent make it look as if the Queen actually exercises her own judgment when granting Consent. According to the Government’s handbook on the legislative process, Ministers must provide the Palace with a detailed explanation of how the Bill will affect the Crown’s prerogative and/or interest along with two copies of the legislation. Furthermore, this correspondence is to be copied to the Queen’s personal solicitors, and the Palace is to be given no less than two weeks to respond (similar procedures must be followed when the Prince’s Consent is sought).7
At first glance, the complexity of the Consent process seems at odds with the idea that the Queen’s role in the legislative process is purely formal. As Professor Rodney Brazier of the University of Manchester observed in his evidence to the Political and Constitutional Reform Committee:
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.8
It should be noted, however, that there is absolutely no evidence that the Queen or the Prince of Wales has ever used the Consent process to obtain changes to legislation.9
Given the controversy surrounding Royal Consent, one has to wonder, is it worth preserving? I think the answer to that question is no. The constitutional justification for it seems slim at best. While it arguably demonstrates comity between Parliament and the Crown, the same result could be achieved through other means. The Sovereign already has the right to discuss the business of government with her Ministers, so she doesn’t really need a special Consent process to make her views known.
The fact that Consent can become a surreptitious veto is problematic as well. The Government shouldn’t be able to prevent Parliament from debating a Bill by advising the Queen to withhold Consent. That is an unwarranted interference in the legislative process (and it’s ultimately unnecessary since the Government has other ways of blocking legislation it doesn’t like), and it runs the risk of politicizing the Crown.
The Queen’s legislative role should be limited to granting Royal Assent. It reaffirms the Sovereign’s role as a constituent part of Parliament and serves as a terminus for the legislative process. And since Royal Assent is always granted nowadays, it does not run the risk of dragging the Crown into politics.
4 Some examples may be found in House of Commons Political and Constitutional Reform Committee, The Impact of Queen’s and Prince’s Consent on the Legislative Process (HC 784) (London: The Stationery Office Limited, 2014), 12.