Public Law for Everyone

Can the Government veto legislation by advising the Queen to withhold royal assent?

During an interview on the Today programme on Radio 4 (here, beginning two hours and ten minutes into the broadcast), Sir Stephen Laws made — or at least appeared to accede to — an arresting suggestion about the withholding of royal assent from legislation. In particular, he appeared to endorse the view that if the House of Commons and the House of Lords were to approve a Bill that did not meet with Government approval, the Government could prevent such a Bill from becoming law by advising the Queen not to grant royal assent to the Bill. It need hardly be said that the context in which these remarks were made were Brexit-related, the possibility of Parliament’s ‘taking control’ in this area, including perhaps by legislating to attempt to avert a no-deal Brexit, being very much a live issue at present.

As a former First Parliamentary Counsel, Laws’s views certainly warrant serious consideration. However, in my view they are highly problematic on account of the fact that they seem to conflate or otherwise misunderstand the relationship between two distinct constitutional conventions. One such convention (or set of conventions) holds that in relevant circumstances, including when exercising relevant legal powers, the Queen should act in line with Ministerial advice. The good sense inherent in this convention is so obvious that it need hardly be stated. Indeed, the very fact that an unelected head of State possesses any significant legal powers is made constitutionally and democratically acceptable only by the fact that the monarch does not enjoy a free hand in their exercise. Rather, she must exercise them on and compatibly with the advice tendered to her by her Government. The Government, of course, is not directly elected, its formation being determined by reference to the outcome of elections to the House of Commons. Nevertheless, the (indirect) democratic imprimatur of Ministers is arguably at least sufficient to render the exercise of legal powers vested in a wholly unelected monarch democratically acceptable provided that they are exercised in line with Minister advice.

All of this might appear to suggest that Laws is right: that the Queen’s legal power to give — or withhold — royal assent to Bills approved by Parliament ought to be exercised in line with Ministerial advice. On this view, if Ministers were to advise the Queen not to grant royal assent to a given Bill, the Queen ought to withhold such assent, even though, by definition, the Bill had commanded the support of a majority of MPs in the House of Commons and (unless the Parliament Acts 1911–49 were in play) a majority of peers in the House of Lords. Yet a moment’s reflection reveals just how deeply problematic this would be. It would mean, in effect, that the Government had an unqualified veto over legislation: that whenever the Government disagreed with legislation approved by both Houses, it could thwart its enactment by advising — and thus, by operation of the Ministerial advice convention, requiring — the Queen to withhold royal assent.

Now, it must be acknowledged that the likelihood of such circumstances arising is very small indeed. After all, Governments only govern if they are capable of commanding the confidence of the House of Commons, and, as recent events have served to underscore, Governments enjoy a very high degree of control over parliamentary business. As a result, there is very little chance indeed of a Bill succeeding in making its way through the two Houses unless the Government is willing to support it. It follows that the effective veto power that Laws appears to ascribe to the Government would very rarely, if ever, need to be pressed into service.

But these observations founded in the reality of day-to-day politics should not be allowed to blind us to the underlying issues of constitutional principle, the relevant principle here being that of parliamentary sovereignty. According to that principle, Parliament — not the Government, but Parliament — has the right to make or unmake any law. Of course, Parliament can only make law if royal assent is conferred upon the Bills it enacts. But constitutional convention provides that such assent will be given. Indeed, it is more than three centuries since it was withheld. (I pass over, for now, the question of whether it would ever be compatible with constitutional principle for the Queen to withhold assent. There may be truly exceptional circumstances in which it would be. But that is a long way from saying that the Queen should withhold royal assent whenever so directed by the Government.) The reason for the royal assent convention is not hard to fathom. Consistently with the historical context in which it first emerged, the royal assent convention ensures that Parliament enjoys constitutional primacy in matters of law-making, and that the monarch’s legal power to interfere in such matters by withholding royal assent is effectively neutralised by a convention that requires the granting of such assent. In this way, the royal assent convention is an essential underpinning of the principle of parliamentary sovereignty.

The key question then becomes how the Ministerial advice and royal assent conventions interact. The former requires the Queen to exercise relevant legal powers in line with Ministerial advice. The latter, meanwhile, provides that the Queen should grant royal assent to Bills that have secured the approval of Parliament. What happens, then, if these conventions are placed in tension via the provision of Ministerial advice that royal assent to a Bill ought to be withheld? The answer, in my view, is clear: the royal assent convention applies; the Ministerial advice does not. It would, however, be a mistake to think of this in terms of the royal assent convention having priority or somehow overriding the Ministerial advice convention. Properly understood, the two conventions need not be considered to be in tension with one another, the better view being that the Ministerial advice convention simply does not apply to the granting of royal assent to Bills. Rather, the royal assent convention independently requires the Queen to grant assent to duly enacted Bills, and the question of ministerial advice does not enter into consideration. Indeed, the Ministerial advice convention is only needed if, in the first place, there is any uncertainty as to what the Queen ought to do. There is absolutely no uncertainty when it comes to granting royal assent, and so Ministerial advice is beside the point.

The upshot, then, is clear. The Queen has a constitutional (albeit not a legal) duty to grant royal assent to Bills. That duty is enshrined in the royal assent convention and arises independently of and without reference to another of the Queen’s constitutional (albeit not legal) duties, viz. to make relevant decisions and exercise relevant legal powers in line with Ministerial advice. To presume that the Queen constitutionally could or should withhold royal assent merely because the Government advises her to do so is thus to conflate the Ministerial advice and royal assent conventions. Both conventions reflect democratic principle, in that they cabin the powers of an unelected monarch by reference to (on the one hand) the advice of (indirectly) elected Ministers and (on the other hand) the legislative will of a (directly) elected Parliament. But the two conventions operate in different domains, and the Ministerial advice convention certainly cannot legitimately be invoked so as to undercut the royal assent convention. The latter is a cornerstone of the principle of parliamentary sovereignty, which itself is an axiomatic feature the UK constitution. It follows that any Government that advised the Queen not to grant royal assent to a duly enacted Bill would not only be playing with political fire — it would be subverting fundamental constitutional principle. As such, if any Government were ever foolish enough to furnish the Queen with such advice, she would be constitutionally entitled — and required — to disregard it.

Postscript

Since this post was published, Sir Stephen Laws has indicated that he feels that it misrepresents his view, ‘which was about a risk that, if questionable ways were found to override [the Government’s] veto under [Standing Order] 48, that would potentially allow [the Government] to think it justifiable to rectify matters at [royal assent] [and] that shouldn’t be allowed to happen’. When he appeared on the Today programme, Laws was speaking about a paper he wrote for Policy Exchange. In that paper, he says:

So, suppose the Speaker did allow an attempt to bypass the financial Standing Orders and allowed a Bill to pass that contravened them, and so to proceed to the House of Lords and be passed there. What would happen when the Bill then fell to be submitted for Royal Assent? The question would inevitably arise whether the Government could reassert its wrongly denied constitutional veto on such a Bill by advising the Monarch not to grant Royal Assent to the Bill? Would it even, perhaps, think that it actually had a duty to ensure that a Bill that had been passed in contravention of fundamental constitutional principles did not reach the statute book? It is a sacred duty of all UK politicians not to involve the Monarch in politics. They have a constitutional responsibility to resolve difficulties between themselves in accordance with the rules, and so as not to call on the ultimate referee. However, might not a Government in that situation think that this was precisely the last resort for which the Royal Assent process is retained? How should the Monarch react to such advice? The answer is not straightforward, and the prospect of it needing to be considered in a real-life political crisis is unthinkably awful.

I take this passage from the paper to be consistent with the understanding of the interview that informed my original post. In particular, I understand the paper to be going further than merely indicating that the Government might (wrongly) ‘think it justifiable’ to advise against royal assent, given that the paper countenances the possibility of the monarch, consistently with the constitution, declining to grant royal assent when the Government advises that such assent be withheld. If such a possibility were not being countenanced, then presumably there would be a ‘straightforward’ answer to the question of how the monarch should react if the Government were to advise against the conferral of royal assent. For the reasons set out in the blogpost above, my view is that there is a straightforward answer to that question: namely, that it would be constitutionally improper for the monarch to accede to Ministerial advice to withhold royal assent, just as it would be constitutionally improper for such advice to be tendered in the first place.