Public Law for Everyone

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My omission in this post to respond to those of Finnis’s criticisms that have not so far been retracted by him or shown by others to be wrong should not be taken to imply that I accept them.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.