Queen’s Consent, Again

David Pegg and Rob Evans of The Guardian have released another tranche of documents relating to Queen’s Consent. This time, the documents are more interesting than the ones they released yesterday, but Pegg and Evans’ reporting is still flawed.

The first case that they discuss is the National Heritage Bill introduced in late 1982. Pegg and Evans claim that the Queen effectively withheld her Consent to the bill because she objected to its content. In support of this claim, they present a letter from Sir Philip Moore, the Queen’s Private Secretary, which shares her concerns about the fate of the Royal Commission on Historic Monuments (England):

The Queen has noted that no decision has yet been taken on whether the Royal Commission on Historical Monuments (England) should be subsumed within the new Commission for Ancient Monuments and Historic Buildings for England. Her Majesty inclines to the view that it would not be sensible for the functions of the Royal Commission to be taken over by the new Commission, and it would not therefore seem a very good idea to include in the Bill a power, by Statutory Instrument, enabling the functions of the Royal Commission to be taken over by the new Commission at some stage in the future.[1]

Moore was responding to a request for Crown Consent for the bill, and because this letter didn’t explicitly grant Consent, Pegg and Evans argue that it was effectively withheld. “By not giving her consent, the Queen’s response, in effect, denied parliament the ability to debate the law at that point.”

But that is pure bunk. In fact, the National Monuments Bill received its Second Reading in the House of Lords on November 25, just two days after Moore’s letter, so any delay in obtaining Consent (and I’ll say more on that point later) didn’t prevent the bill from being debated at all.

Pegg and Evans also claim that the Queen didn’t Consent to the bill until six months later, but this is misleading. While Consent was signified in the Commons on May 5, 1983, it was signified in the Lords on February 15!

Also, the version of the National Heritage Bill that would have been presented to the Queen didn’t actually contain a provision to eliminate the Royal Commission. Reading through the debates in the House of Lords, it’s clear that the Government envisioned the two bodies working side by side. A Labour peer, Baroness Birk, actually tabled an amendment in Committee to get rid of the Royal Commission, showing the provision wasn’t originally in the bill. This comports with the fact that Moore’s letter explicitly notes that “no decision has yet been taken” on the Royal Commission’s fate. If the bill didn’t actually contain the provision that the Queen was worried about, she couldn’t have withheld her Consent because of it!

Pegg and Evans also don’t seem to realize that Consent wasn’t necessary until the bill’s Third Reading (which was weeks and weeks away when Moore wrote his letter), so there was no need for Consent to be signified right away. Consequently, his failure to address Consent in that letter isn’t necessarily surprising (or significant).   

Instead of using a ‘secret royal veto,’ the Queen was exercising her constitutional right to warn her ministers. Any student of the British constitution will tell you that there’s nothing new about this. Writers going back to Walter Bagehot have held that the Sovereign has the right to counsel the government of the day. The available evidence doesn’t allow us to assess the impact of the Queen’s warning. Pegg and Evans do quote a letter in which a civil servant said “[t]he Secretary of State should see straight away the attached response which [the department] have received from Buckingham Palace to their formal approach to Queen’s consent … Clearly this view must affect the way in which we go forward,” but they don’t provide any further evidence on the matter (The Guardian has only published a few documents in full this time, which makes it difficult to assess Pegg and Evans’ handling of the documentary evidence). The fact that the Royal Commission survived for another 17 years is hardly persuasive since the Government hadn’t definitively decided to get rid of it in the first place.

The second case that Pegg and Evans discuss is the Transport Bill in 1968. At issue was whether or not new traffic rules should apply to roads on the Queen’s personal estates. Again, they present a letter from the Queen’s Private Secretary (in this case, Sir Michael Adeane) to the Minister of Transport (Richard Marsh) in which he wrote:

I am commanded by Her Majesty to say that, provided the provisions of the clause do not apply to the Crown Private Estates, and that the objections which, I understand, have been raised by the Crown Estates and the Duchies of Lancaster and Cornwall are satisfactorily resolved, Her Majesty is pleased to approve that a Privy Counsellor may make the customary statement at the appropriate stage in the proceedings in Parliament, indicating that The Queen’s prerogative has been placed at the disposal of Parliament.[2]

Pegg and Evans claim that the Queen’s private solicitor, Michael Farrer, told Marsh that he did not want to see traffic laws applied to her private estates. However, they don’t provide any details about Farrer’s objections or the Government’s response beyond quoting a note from a Whitehall official which said that “[t]he upshot of all this was that we inserted two small changes in subsections 1 and 2 of the new clause.” They also gloss over the fact that the Crown Estate and the Duchies of Lancaster and Cornwall also had objections to certain elements of the bill, which suggests there were issues beyond the impact on the Queen’s private property.[3] But the fact that the Government amended the bill suggests that they agreed with the Palace’s concerns.

The final case they discuss is the Community Land Bill in 1975. Once again, The Guardian only published one document, in this case notes of a meeting between civil servants from the Department of the Environment and HM Treasury and representatives of the Crown Estate, the Duchies of Lancaster and Cornwall, and the Crown Private Estate (i.e., the Queen’s private property).

The note mentioned that the Estates could encounter difficulties leasing land to private developers if they had to do so through the local authority (presumably, the reference to ‘the Estates’ encompassed both the Crown Estate and the Crown Private Estate, but that’s not entirely clear from the context). The primary concern seems to have been the impact on the Estates’ ability to manage their land, though the possibility of a financial disadvantage was also raised.[4] Ultimately, it was agreed to pass the Estates’ concerns along to the Department of the Environment’s ministers along with the pros and cons of modifying the bill.

The representatives of the Estates did mention that, if the bill weren’t modified, they would need to take their concerns to the Chancellor of the Exchequer. Pegg and Evans characterize this as a threat, but that’s a highly subjective interpretation. The Estates had every right to voice concerns about how the legislation would impact them, and Ministers had every right to refuse to allow amendments. Nothing in the evidence suggests that the Palace ever threatened to withhold Consent if the Government didn’t amend the bill to their satisfaction.

Furthermore, Pegg and Evans don’t present any evidence that the bill actually was amended, and a look at the resulting Act suggests that the Government ultimately found the Estates’ case either unpersuasive or too problematic to attempt (the tenor of the note shows that the Estates were facing an uphill battle). Royal influence isn’t a binding command, and Ministers don’t have to worry about being sent to the Tower if they displease the Queen. They are free to disregard the Queen’s views if they wish.    

The Guardian’s coverage of Consent reveal a fundamental lack of knowledge of the British constitution. The Sovereign has three great rights: the right to be consulted, the right to encourage, and the right to warn. All Pegg and Evans have done is provide glimpses of how ordinary, established powers are exercised in practice. While the fact that these powers are exercised away from the public eye can make it easy to forget about them, even a cursory look at the historical record would show that modern Monarchs aren’t simply constitutional automatons.[5] And the work of scholars such as Anne Twomey gives us a look at how the present Queen wields these powers.[6] Pegg and Evans have uncovered interesting material, but their lack of understanding of their subject matter and their factual errors ultimately mars their efforts.

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[1] Letter from Philip Moore to M. G. E. Giles, November 23, 1982.

[2] Letter from Sir Michael Adeane to Richard Marsh, July 19, 1968.

[3] Despite the name, the Crown Estate are not directly controlled by the Sovereign. Instead, they’re managed by a semi-independent body known as the Crown Estate Commissioners, and the revenues from the estates go to the government under an arrangement dating from the reign of George III. While the Duchies of Lancaster and Cornwall exist to provide the Sovereign and the Prince of Wales with personal income, they are also distinct from private estates such as Sandringham House.

[4] “Community Land Bill: Application to Crown,” March 5, 1975.

[5] Harold Nicholson, King George the Fifth: His Life and Reign (Garden City: Doubleday & Company, Inc., 1953) gives a good overview for one particular monarch. Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge: Cambridge University Press, 2018) provides a wider perspective.  

[6] See, for example, The Chameleon Crown: The Queen and Her Australian Governors (Sydney: The Federation Press, 2006).