A good deal has been written over the last couple of weeks
about the granting of Royal Assent to legislation — and, in particular, about
whether the Government can prevent a Bill from becoming law by advising against,
or delaying putting it forward for, Royal Assent. That so much has been written
on this topic is surprising, given how uncontroversial a matter a great many (albeit
not all: e.g. Robert
Craig) public lawyers consider it to be. That much is apparent from a
multi-signatory letter
published in The Times last week, as
well as from recent pieces written by Paul
Bowen QC, Professor
Jeff King and Professor
Tom Poole. I set out my own views on this topic in a
post published in January.
In one of the most
recent contributions to this debate, Professor John Finnis, writing on the
UK Constitutional Law Association Blog, takes me to task in respect of my
critique of an opinion
article that he published in the Telegraph.
I do not propose to respond in detail to Finnis’s many criticisms of my piece,
although I welcome the fact that he has already retracted one of them (in a
post-publication note appended to his latest
post). I also note that Professor David Howarth, in a comment on Finnis’s
post, identifies a basic error in Finnis’s argument that Royal Assent can
legitimately be delayed (as distinct from withheld) by the Lord Chancellor.
Howarth points out that Finnis’s analysis is flawed because he ‘confuse[s] the [role
of the] Lord Chancellor with [that of] the Clerk of the Crown in Chancery’. As
Howarth explains, the fact that the latter is Permanent Secretary in the
Ministry of Justice is neither here nor there, since the Clerk to the Crown,
when acting in that capacity, ‘acts not as a civil servant but as a royal and
parliamentary officer’. This view is consistent with the broader conclusions that
Professor Anne Twomey reaches in this regard. In The Veiled Sceptre (Cambridge 2018), p 628, she writes that ‘it is
a well-recognised principle that bills cannot be withheld from presentation to
the Queen for assent’, such that there is an ‘obligation’ to present Bills for
Assent. The incorrectness of Finnis’s argument that Ministers can render time-sensitive
legislation a dead letter by delaying Royal Assent is thus clear.
My omission in this post to respond to those of Finnis’s
criticisms that have not so far been retracted by him or shown by others to be wrong
should not be taken to imply that I accept them. The purpose of this short piece,
however, is to examine Finnis’s stance in broader perspective. Finnis’s central
charge is that in criticising his argument, I omitted ‘important premises’, and
thus succeeded in doing nothing more than knocking down a straw man. That
criticism is, in itself, telling. The implication is that once the relevant
premises are properly appreciated, the argument acquires a constitutional
respectability that someone who has been told only half the story might
overlook. In assessing this argument, it is worth reminding ourselves what the
central claims actually are: namely, that it would have been constitutionally
legitimate to prorogue Parliament pending Brexit in order to ‘terminate
parliamentary debate’, and that it would be ‘proper and appropriate’ for
Ministers to advise the Queen to withhold Royal Assent to legislation such as
the Cooper-Letwin Bill (now the European
Union (Withdrawal) Act 2019, in respect of which, as it happens, Royal
Assent was sought and conferred with remarkable speed).
Contrary to the view set out in his riposte to me, there are
no premises capable of rescuing Finnis’s argument from constitutional heterodoxy.
It is over three centuries since the basic constitutional position concerning
the respective roles and powers of the Executive and Parliament was determined.
Understood in its narrowest, most technical sense, the doctrine of
parliamentary sovereignty means that the legality of legislation enacted by
Parliament cannot be questioned by the courts. However, parliamentary
sovereignty — which remains the cornerstone of the UK’s constitutional
architecture — has implications that extend well beyond this technical rule as
to the limits of judicial power. Importantly, the principle that underpins and
animates the sovereignty doctrine renders Parliament — not the courts, and not
the Executive — the UK’s primary constitutional institution. As Sir Stephen
Sedley puts it in Ashes and Sparks (Cambridge
2011), p 86, the ‘[e]xecutive government … is not one of three sovereign and
equal elements of the state’. Rather: ‘It is subordinate to both Parliament and
the courts.’ The characteristic eloquence with which Sedley states this proposition
should not obscure the fact that it is actually a very basic (albeit important)
one. The justification for this state of affairs, understood in
contemporary terms, is readily apparent: it is that Parliament has an
independent democratic mandate whereas the Executive does not. Yet if it is
made incapable of exercising its authority by an Executive that prorogues it
when parliamentarians — as the Government sees it — overstep the mark, or by
Ministers who thwart legislation by attempting to see that Royal Assent is
withheld, then Parliament is denied the capacity to play the central role that
the sovereignty doctrine ascribes to it, and which democracy requires. Indeed,
it is transformed into little more than a rubber-stamp that the Executive
tolerates for as long as Parliament is willing to toe the line.
Against this background, it is particularly revealing that
Finnis opines in his most recent piece that: ‘Westminster democracy depends on
balancing the elected branch and the executive so that neither can pursue a
particular policy without the acquiescence of the other.’ This discloses two
errors; the first is factual, while the second relates to a deeper misconception.
As a matter of fact, it is self-evidently not the case that Parliament can only
pursue a given policy if the Executive acquiesces. Absent such acquiescence,
Parliament can trigger a general election, dismiss the Government and hold
Ministers in contempt. It can also, as we know, take control of the order
paper, hold indicative votes that Ministers deprecate, and enact legislation
that the Government considers to be ‘a huge dog’s dinner’ (as Andrea Leadsom MP,
the Leader of the House of Commons, described what was shortly to become EU
(Withdrawal) Act 2019: Hansard, 8 April 2019). The
deeper error lies in Finnis’s misplaced assumption that Westminster democracy
implies a partnership of executive and legislative equals, merely because the
policies of the two branches usually align thanks to the realities of
parliamentary arithmetic and party discipline. As in his earlier piece, Finnis conflates
normal practice with constitutional principle; this results in a failure to
appreciate that, when the policies of the two branches do not align,
constitutional principle dictates that it is ultimately Parliament that is
entitled to the final say. To suggest otherwise is to deny parliamentary
sovereignty and distort parliamentary democracy.
In my previous post responding to Finnis, I argued — using
the very language that Finnis had deployed against Parliament’s recent
behaviour — that the suggestions that Parliament could legitimately be
prorogued or Royal Assent properly withheld in order to give the Executive the
upper hand in relation to Brexit were ‘constitutional monstrosities’. I stand
by that assessment. The premises that Finnis advances in support of his view —
including the facts that complex issues of foreign policy are at stake, that
Parliament had already passed legislation addressing some aspects of Brexit,
and that, in a parliamentary debate, Oliver Letwin MP rather overegged the
pudding by proposing a ‘fundamental realignment’ of the relationship between
Parliament and the Executive — are simply irrelevant. They have no bearing on
the question of whether it is legitimate for the Executive to terminate parliamentary
debate or neutralise legislation by deferring Royal Assent to a date on which
the resulting Act would be deprived of its intended effect. The answers to
those question are supplied not by happenstance — which, in the final analysis,
is precisely what many of Finnis’s premises reduce to — but by fundamental
principle. That Finnis’s premises are incapable of doing the heavy lifting that
would be required were they to succeed in rescuing his central claims may appear
to reveal no more than the inherent weaknesses of those premises. But to reach
that conclusion would be to miss the point by allowing our view of the wood to
be obscured by the trees. The critical point is that there are, to begin with,
no premises capable of supporting the extraordinary claims that Finnis makes — because,
in the first place, those claims are flatly irreconcilable with constitutional
principle.
I am grateful to Paul
Bowen, Joseph Crampin, David Howarth, Jeff King, Gavin Phillipson and Jack
Williams for their very helpful comments on an earlier draft of this piece
and/or for discussion of relevant issues. The usual disclaimer applies.