A number of colleagues and I wrote to The Times earlier this week on the subject of Royal Assent to legislation. The Times subsequently published a further letter on this topic by Professor Rodney Brazier. The following letter, published by the Times today, responds to Professor Brazier.
Professor Brazier (‘Ministerial advice and the Queen’) suggests that our warning against the Queen being advised to refuse Royal Assent to a backbench Brexit Bill would put monarch and constitution ‘in a dangerous position’. Democracy, he says, precludes our ‘unelected head of state’ from exercising her legal powers ‘in her own discretion’; hence for the Queen to reject government advice would look like her ‘tak[ing] sides in a raging political argument’. But Brazier seems to have misunderstood our argument: it is not directed at what the Queen should do but at what the Government should not do: advise refusal of consent in the first place. Of course the Queen should not exercise her powers ‘in her own discretion’: that is why we argue that any such discretion is precluded by the separate convention governing the Queen’s legislative role that requires her to assent to Bills validly passed by Parliament. The Queen must not be placed in the acutely difficult position of having to choose between rejecting Ministerial advice or vetoing – for the first time in over 300 years – a Bill surrounded by the most intense political controversy. It is precisely for this reason we argue that Ministers may not properly offer such advice.
Professor Gavin Phillipson, Professor of Public Law and Human Rights, University of Bristol
Professor Mark Elliott, Professor of Public Law, University of Cambridge