Some Thoughts On The Guardian’s Latest ‘Royal Exposé’

The Queen’s Consent is once again in the news. This time it’s because David Pegg and Rob Evans, two reporters with The Guardian, have unearthed documents from 1973 that reveal discussions between Matthew Farrer, the Queen’s private solicitor, and the Government regarding the Companies Bill that was going through Parliament. The bill contained a provision to allow companies to discover the beneficial owners of their shares, and Farrer was afraid that this could allow details of the Queen’s private finances to be made public. The Government ultimately amended the bill to allow the Secretary of State to exempt certain nominated holders of shares from the obligation to disclose the beneficial owners. However, there are a number of problems with their reporting.

First of all, the evidence they have released so far suggests that the change to the bill wasn’t just for the Queen’s benefit. Although Pegg and Evans claim that “the Queen was plainly the intended beneficiary of the arrangement,” a letter from the Minister of State for Trade and Consumer Affairs, Geoffrey Howe, seems to belie that conclusion:

The Governor [of the Bank of England] has in mind that there is a class of investor or potential investor in United Kingdom securities whom we have every interest in encouraging, but who might be deterred from holding UK investments if their identity and hence their interests could readily be uncovered. Such a class could generally be defined to cover, say, Heads of State, Governments, central monetary authorities, investment boards and international bodies formed by Governments.[1]

The fact that other entities would benefit from this arrangement suggests that its genesis was more complicated than Pegg and Evans present. Rather than simply giving in to royal lobbying, it looks like the Government realized that the disclosure requirements could have unintended consequences.[2] The Queen’s solicitor may have helped them realize the problem, but one would need to see all correspondence related to the change before one could draw sound conclusions about the impact of Farrer’s intervention.

Pegg and Evans’ attempt to link this episode with the practice of seeking Crown Consent is also problematic. I’ve discussed Crown Consent elsewhere, but there is a custom that the Queen must give her consent to legislation that touches upon her prerogative and/or interest. Unlike Royal Assent, which happens at the end of the legislative process, Crown Consent is signified during a bill’s journey through Parliament. Although the media has characterized it as a ‘secret royal veto,’ there’s no evidence that Consent has been withheld in modern times because of the Sovereign’s personal objection to a bill (however, governments have used Consent to block legislation they didn’t like). Nor has there been any evidence that the Palace has used the process to insist on changes to legislation.

At first glance, The Guardian’s story looks like it could be a smoking gun. But there’s one big problem: as far as I can tell, the Companies Bill didn’t actually require Crown Consent. There were actually two versions of the bill. The 1973 version was lost when Parliament was dissolved in February 1974, but the (largely identical) 1976 version ultimately became law. If Consent were necessary, Hansard would note when it had been granted. While Pegg and Evans note that there is no record of Consent being signified for the 1976 version, they suggest that this was because “[Consent] was only sought for the 1973 version that never made it to third reading.” But if Consent were sought for the 1973 version of the bill, it would presumably also have been sought for the 1976 version of the bill–Pegg and Evans even observe that “much of the original bill [was] simply copied into the second edition.[3]” The Government’s guidance on Crown Consent makes it clear that Ministers must approach the Palace again if a bill requiring Consent is reintroduced in a subsequent session.[4] In other words, a grant of Consent doesn’t persist after prorogation let alone a dissolution. None of the correspondence that has been published so far makes any mention of Consent either.

Even if the Government didn’t seek the Queen’s Consent for the Companies Bill, it’s hardly surprising that her solicitors might raise a concern with the bill. Indeed, one would suspect that they keep an eye on all pending legislation that could conceivably affect the Queen, even if the impact doesn’t trigger the need for Consent. And while Pegg and Evans suggest that the Queen herself dispatched Farrer to lobby the Government, that’s simply conjecture at this point. Notably, none of the documents mention the Queen personally or her Private Secretary. While it’s certainly possible that the impetus came from her, it’s also possible that this was simply the work of cautious lawyers looking out for their client’s interest. The extent of the Queen’s personal involvement can only be hypothesized at this point.

So far this feels a lot like the Palace Letters saga. Jenny Hocking spent years arguing that Sir John Kerr conspired with the Palace to get rid of Gough Whitlam, and The Guardian gave her sympathetic coverage. But when Sir John’s correspondence with the Palace was finally revealed in full, it revealed a very different story. Alas, The Guardian doesn’t seem to have learned their lesson.

Edited to clarify that, while there’s no modern evidence of a Monarch using Consent to block legislation that they found personally objectionable, governments have used it to thwart bills they didn’t like.

UPDATE (2/8/21): I’ve written about Pegg and Evans’ second article on Queen’s Consent here.

[1] Letter from Geoffrey Howe to James Prior, 13 December 1973.

[2] In theory, the talk of other entities could have been a ruse to conceal the fact that the Queen would benefit from these arrangements, but the available evidence doesn’t support that hypothesis. One also has to wonder why a Minister would resort to that kind of deception when writing to a colleague in confidence.

[3] While it’s possible that the 1973 bill required Consent but the 1976 one didn’t, that conclusion doesn’t comport with the notion that they were largely identical.

[4] Office of the Parliamentary Counsel, Queen or Prince’s Consent (September 2018), 14.

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3 Responses to Some Thoughts On The Guardian’s Latest ‘Royal Exposé’

  1. Benjamin Lewis says:

    “there’s no evidence that Consent has ever been withheld in modern times”

    Military Action Against Iraq (Parliamentary Approval) Bill, see Commons Hansard, 23rd July 1999.

  2. Mark Loch says:

    Thorough research. Good posting

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