King's Consent

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In the UK and certain other Commonwealth countries, King's Consent [lower-alpha 1] is a parliamentary convention under which Crown consent is sought whenever a proposed parliamentary bill will affect the Crown's own prerogatives or interests (hereditary revenues, personal property, estates, or other interests). Prince's Consent is a similar doctrine, under which consent of the Prince of Wales must be obtained for matters relating to the Duchy of Cornwall. [3] King's or Prince's Consent must be obtained early in the legislative process, generally before parliament may debate or vote on a bill. [4] In modern times, following the tenets of constitutional monarchy, consent is granted or withheld as advised by government.

Contents

According to the 1851 edition of Erskine May, the manual of UK parliamentary practice, the practical advantage of Queen's Consent (as it then was, Queen Victoria being on the throne) was that it enabled the Crown to protect its rights without having to resort to blocking a bill after its passage by refusing royal assent. More recently, however, there has been criticism of the Crown being consulted on the content of forthcoming bills, and being given "the right and opportunity to shape prospective legislation". [5] Critics allege that even though the Crown may never formally withhold its consent contrary to government advice, the procedure is nevertheless being used to vet and change draft bills before they reach Parliament. One report noted that it was "almost certain that some Bills were changed before introduction in order to address concerns about Crown consent". [6] [7]

Origins and constitutional basis

The origins of King’s Consent are unclear. [8] There is evidence of consent first being invoked in 1728 when George II gave Parliament permission to debate the Suppression of Piracy bill, which suggests that it has been part of the UK legislative process for several hundred years. Prince’s Consent is a more recent development, probably no later than 1848. [8]

King's Consent is not a right of the monarch or of the Crown under the prerogative. [3] The Office of the Parliamentary Counsel has stated that it is entirely a matter of House procedure. [8] In 2014 the House of Commons Political and Constitutional Reform Committee undertook an investigation into the basis of the practice, and concluded after hearing expert legal and parliamentary evidence that consent is indeed a matter of parliamentary procedure. [9] The committee noted that if Parliament wished to abolish consent it could do so by resolution, without any need for legislation. [9]

The 1851 (2nd) edition of Erskine May: Parliamentary Practice stated that the practice was "founded upon parliamentary usage, which both houses have agreed to observe", and that as a result "it cannot be misconstrued into any interference with the proceedings of parliament". The author defended the practice of prior communication between Parliament and the Crown on the basis that, without Queen’s Consent, if parliament were to dispose of the interests or affect the prerogative of the Crown against its wishes, the Crown would in any event be able to protect itself by refusing royal assent. Queen’s Consent, then, he considered advantageous, as it avoided the need for the Crown to exert its prerogative in such a way. [10] Recent editions of Erskine May drop discussion of the advantages of the practice, and simply state that under certain conditions consent is "required", [11] leaving unsaid the implications of its not being given. [5]

Bills affected

Bills affecting the royal prerogative and the personal property and "personal interests" of the monarch require King's Consent. [3]

In the United Kingdom, as well as bills that affect the prerogative, bills affecting the hereditary revenues of the Duchy of Lancaster or the Duchy of Cornwall require King's Consent. [3] Bills affecting the latter also require Prince's Consent from the Prince of Wales in his capacity as Duke of Cornwall. [3] In certain circumstances, such as for the House of Lords Act 1999, the consent of the Prince of Wales, in his capacity as Earl of Chester or Prince and Great Steward of Scotland, must also be obtained where a bill affects his interests. [12] [13] In 1993, both Queen's Consent and Prince's Consent were required in respect of the Priests (Ordination of Women) Measure 1993 that enabled the ordination of women in the Church of England. [14]

The Office of the Parliamentary Counsel has produced guidance on the need for King's or Prince's Consent and the procedures associated with them. [3] [15]

In Canada, no act of parliament binds the monarch or their rights unless the act states that it does so. [16] King's Consent (or Royal Consent) is typically granted by the governor general on behalf of the sovereign [1] and specially communicated to Parliament. Typically, though, it is expressed by a minister of the Canadian Crown. [17]

In Australia, the royal household insists consent must first be granted for bills concerning the monarch's royal prerogative and personal interest. [18] However, there is no equivalent requirement as in the UK or Canada for the Australian Parliament to receive signification of the monarch's consent. [19]

In New Zealand no bills made by members of parliament that affect the Crown's rights and prerogatives may be passed without the consent of the Crown. [20] The speaker of the House is responsible for ensuring consent from the crown is obtained before bills that require it can be passed. The governor-general is typically the one who gives a message of consent on the advice of the members of parliament. [21]

Effect on parliamentary proceedings

Consent is usually signified in one (in unicameral legislatures) or both houses (in bicameral legislatures) of parliament, at either the second or third reading, by a privy counsellor and is recorded in Hansard. Where proposed legislation which might affect the royal prerogative or the private interests of the Crown is sponsored by the cabinet (as is the case for most bills considered by Parliament), the department sponsoring the bill must write to the palace giving as much time as possible, but never less than 14 days before the bill is introduced to parliament. [3] : 6.1  In the Scottish parliament, consent is signified by a member of the Scottish government. [2] In the Canadian parliament, Royal Consent can be signified in only one legislative chamber. [1] In the UK Parliament, consent is signified using the following wording (with similar wording for Prince's Consent):

I have it in command from His Majesty the King to acquaint the House that His Majesty, having been informed of the purport of the [name of bill], has consented to place his prerogative and interest, so far as it is concerned on behalf of the Crown and the Duchy of Lancaster, at the disposal of Parliament for the purposes of the Measure. [14]

If consent is required but not signified, a bill may make no further progress through Parliament. If a bill is mistakenly allowed to progress even though the required consent was not signified and the error is discovered before royal assent has been given, the proceedings may later be declared void. [22] Where a bill requires the consent of the Prince and Steward of Scotland or the Duke of Rothesay, the Scottish Parliament cannot debate any question whether the bill be passed or approved unless such consent to those provisions has been signified by a member of the Scottish government. [2] Once a bill has passed Parliament and received royal assent, it is regarded as legally valid by the courts, regardless of any deficiency in parliamentary procedure, in accordance with the usual principles of parliamentary privilege. [3]

If King's Consent is withheld, it is, according to the tenets of constitutional monarchy and responsible government, done on the advice of Government. [23] A spokesman for Queen Elizabeth II stated in 2021 that "Queen's consent is a parliamentary process, with the role of sovereign purely formal. Consent is always granted by the monarch where requested by government. Any assertion that the sovereign has blocked legislation is simply incorrect." [24]

Similarly, the Prince of Wales grants and withholds the Prince's Consent on the advice of the sovereign's ministers, as the Duchy of Cornwall is within British jurisdiction. [25] No bill affecting the Duchy of Cornwall has been refused consent by either the sovereign or the Duke of Cornwall. Each granting of consent by the Prince of Wales is a "matter of public record". [26]

While the monarch always consents if so advised by ministers, a private member's bill—not introduced by a government minister—that requires consent can be killed off by the government without having to muster votes or use parliamentary time by advising against consent.

In 1999, the Queen, acting on ministerial advice, refused to signify her consent to Parliament debating the Military Action Against Iraq (Parliamentary Approval) Bill. This was a private member's bill which sought to transfer from government (strictly speaking, the monarch acting on ministerial advice) to Parliament the power to authorize military strikes against Iraq. [27] [28] This prevented the bill from being debated. In 1988, the Palace of Westminster (Removal of Crown Immunity) Bill could not be debated in Parliament because Queen's Consent was withheld, [29] as with the Reform of the House of Lords Bill in 1990. [30]

While the website of the royal family describes consent as "a long established convention", The Guardian newspaper reported in February 2021 that memos had been found in the National Archives revealing that the advance notice of forthcoming bills allows the monarch to lobby for legislative changes without actual consent being invoked. The documents were reviewed by Thomas Adams, a specialist in constitutional law at Oxford University, who said they revealed "the kind of influence over legislation that lobbyists would only dream of", adding that the existence of the consent procedure appeared to have given the monarch "substantial influence" over draft laws that could affect her. As of 2021, over 1000 bills had been submitted to the Queen or Prince Charles for Queen's or Prince's Consent. [31] More than 50,000 people had, by 28 February 2021, signed a petition requesting a parliamentary inquiry into the convention of Queen's Consent. [32] Buckingham Palace responded to The Guardian, stating that consent was always granted when requested and that legislation was never blocked. [24]

The Palace is known to have requested changes to draft legislation in some cases; it is not known how many. In 1973, when a companies bill incorporating transparency measures was to be introduced in the UK Parliament, after receiving advance notice as required by the consent procedure, the Queen's lawyer and the trade department agreed an exception for heads of state. This allowed the Queen to avoid the embarrassment of disclosure of beneficial ownership of shares by the Crown until at least 2011. [33] Consent was not required for the bill, as eventually introduced. [24] It was revealed in 2022 that Prince Charles had used Prince's Consent to have proposed legislation changed so that his Duchy of Cornwall leasehold tenants would not have the right to buy their homes that was provided by what later became the Leasehold Reform, Housing and Urban Development Act 1993. Documents revealed that Charles wrote to the Prime Minister John Major expressing his "particular concern" about this aspect. The government did not wish to grant this exception, fearing that it would create a precedent for other major landowners, but ultimately, reluctantly, included the special exemption to avoid what a Whitehall official described as "a major row with the Prince of Wales", saying "the will of ministers can prevail over that of monarchy but a constitutional crisis would add a further dimension of controversy to the bill which would be better avoided". [34] Acts that are known to have been vetted by Prince Charles are the Leasehold Reform Act 1967, the Leasehold Reform, Housing and Urban Development Act 1993, and the Commonhold and Leasehold Reform Act 2002. [35]

It was reported in July 2021 that the advance notice provided by the consent procedure was used in the Scottish Parliament in 2021 to arrange for draft legislation to be modified so that the Queen, one of the largest landowners in Scotland, would become the only person in the country not required to facilitate the construction of pipelines to heat buildings using renewable energy. The Scottish government did not disclose the intervention of the Queen's lawyer when the energy minister added the exemption to the green energy bill, [36] key legislation to combat the climate emergency. [37] It is not known why the Queen's lawyer wanted the bill changed. [38] Since its creation in 1999 the Scottish Parliament has given the Queen advance notice of at least 67 parliamentary bills deemed to affect her. It is not known how many were consequently changed. [39] The Scottish Liberal Democrat leader Willie Rennie asked the Scottish government in a parliamentary question for a list of acts amended as a result of exchanges with the Queen's representatives; the Scottish government ultimately refused to answer the question, but confidential briefing notes were later disclosed which said that it was almost certain that some bills had been changed before introduction, but that as they had not been "amended" in parliamentary terms they would not have been included. [6] [7]

In response to these reports about consent in Scotland, the palace said: "The royal household can be consulted on bills in order to ensure the technical accuracy and consistency of the application of the bill to the crown, a complex legal principle governed by statute and common law. This process does not change the nature of any such bill." [39]

See also

Notes

  1. ↑ Known as Queen's Consent when the monarch is female, or Royal Consent in Canada [1] and Crown Consent in Scotland. [2]

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References

  1. 1 2 3 "1st Session, 38th Parliament - Other Business - Speaker's Ruling". Journals of the Senate (15). Ottawa: Parliament of Canada. 17 November 2004. Archived from the original on 7 March 2016.
  2. 1 2 3 "Standing Orders, 6th edition, 2nd revision". The Scottish Parliament. 30 June 2021. Archived from the original on 28 July 2021.
  3. ↑ HC 784, p. 1.
  4. 1 2 Green, David Allen (8 February 2021). "The Queen's Consent – a strange and obscure feature of the constitution of the United Kingdom – and why it should be abolished". The Law and Policy Blog. Retrieved 1 July 2022.
  5. 1 2 Annexes to FOI review of 202200270508 communications between SG and the Royal Household re Crown consent provisions in Scottish legislation discussions (memo, full text) (PDF) (Report). Background note to S6W 02027. Archived (PDF) from the original on 27 June 2022. Memo in answer to question S6W-02029 Willie Rennie: 'To ask the Scottish Government which pieces of legislation have been amended as a result of exchanges prompted by Rule 9.11 of the Standing Orders in each year since 2007, and, for each of these, whether it will publish (a) the details of any concerns raised by any party representing the Crown and (b) its response.' Memo states: 'It is also almost certain that some bills were changed before introduction in order to address concerns about crown consent, however these will not have been "amended" in parliamentary terms and so would not be included in such a list.'
  6. 1 2 Carrell, Severin; Evans, Rob; Pegg, David (27 June 2022). "Queen's secret influence on laws revealed in Scottish government memo". The Guardian.
  7. 1 2 3 HC 784, p. 9.
  8. 1 2 HC 784, p. 11.
  9. ↑ Erskine May, Thomas (1851). A practical treatise on the law, privileges, proceedings and usage of Parliament (2nd ed.). London: Butterworths. pp. 336–337.
  10. ↑ "Paragraph 9.6: Queen's consent on bills". Erskine May's treatise on the law, privileges, proceedings and usage of Parliament (online) (25th, with update 2 ed.). UK Parliament. August 2021.
  11. ↑ "House of Commons Hansard Written Answers for 30 Apr 1996 (pt 1)". publications.parliament.uk.
  12. ↑ "Prince's consent asked on 12 bills". Evening Standard. 12 April 2012.
  13. 1 2 Newton, Tony (29 October 1993). "Priests (Ordination of Women) - debate in the House of Commons". TheyWorkForYou.
  14. ↑ Robert Booth (31 August 2012). "Secret royal veto powers over new laws to be exposed". TheGuardian.com . Retrieved 31 August 2012.
  15. ↑ Elizabeth II (2005), Interpretation Act, 17, Ottawa: Queen's Printer for Canada (published 1 April 2005), archived from the original on 5 July 2009, retrieved 7 August 2009
  16. ↑ Royal Consent Given to Bills, Parliament of Canada, 31 March 2014, archived from the original on 24 March 2015
  17. ↑ Twomey, Anne (8 February 2021). "The queen's gambit — new evidence shows how Her Majesty wields influence on legislation". theconversation.com. Academic Journalism Society. Retrieved 5 October 2022.
  18. ↑ "Presentation of bills for assent". www.aph.gov.au. Parliament of Australia. Retrieved 5 October 2022.
  19. ↑ "Chapter 5: Legislative procedures - New Zealand Parliament (SO 321)". www.parliament.nz. Retrieved 3 September 2023.
  20. ↑ "Chapter 9 Communications with the Crown - New Zealand Parliament". www.parliament.nz. Retrieved 4 September 2023.
  21. ↑ e.g. Hansard HC Deb 20 July 1949 vol 467 cc1385-6
  22. ↑ "The Queen and Parliament". www.royal.uk. Archived from the original on 1 March 2014. Retrieved 28 July 2021.
  23. 1 2 3 "Queen did not block legislation, Buckingham Palace says". BBC News. 8 February 2021.
  24. ↑ "Secret papers show extent of senior royals' veto over bills". The Guardian. 15 January 2013.
  25. ↑ "FAQs | Prince of Wales". www.princeofwales.gov.uk.
  26. ↑ "Iraq attack bill fails". BBC News, 16 April 1999. Source incorrectly refers to "Royal Assent", but Hansard reference correctly states "consent".
  27. ↑ Extract ( Hansard , 16 April 1999, Col.521) ("Queen's consent has not been signified.")
  28. ↑ "Palace of Westminster (Removal of Crown Immunity) Bill". Parliamentary Debates (Hansard) . House of Commons. 8 July 1998. col. 1370–.
  29. ↑ "Reform of the House of Lords Bill". Parliamentary Debates (Hansard) . House of Commons. 26 January 1990. col. 1241–.
  30. ↑ Evans, Rob (8 February 2021). "Royals vetted more than 1,000 laws via Queen's consent". The Guardian.
  31. ↑ Evans, Rob; Pegg, David (28 February 2021). "More than 50,000 people call for inquiry into use of Queen's consent". The Guardian. Retrieved 23 July 2022.
  32. ↑ Evans, Rob (7 February 2021). "Revealed: Queen lobbied for change in law to hide her private wealth". The Guardian.
  33. ↑ Evans, Rob; Pegg, David; Carrell, Severin (28 June 2022). "Revealed: how Prince Charles pressured ministers to change law to benefit his estate". The Guardian.
  34. ↑ Evans, Rob; Pegg, David; Barton, Michael (9 February 2021). "Prince Charles vetted laws that stop his tenants buying their homes". The Guardian. Retrieved 6 April 2023.
  35. ↑ Acts of the Scottish Parliament: Heat Networks (Scotland) Act 2021: Part 6 - Compulsory acquisition of land. Section 68 - Compulsory acquisition of land by licence holder. Subsection 3: The Scottish Ministers must not authorise under subsection (1) any acquisition in relation to land which belongs to Her Majesty in right of Her private estates
  36. ↑ Evans, Rob; Carrell, Severin; Pegg, David (28 July 2021). "Queen secretly lobbied Scottish ministers for climate law exemption". The Guardian.
  37. ↑ Carrell, Severin; Evans, Rob (29 July 2021). "Scottish government refuses to publish details about Queen's secret lobbying". The Guardian.
  38. 1 2 Carrell, Severin; Evans, Rob; Hughes, Amy; Pegg, David (28 July 2021). "Revealed: Queen vetted 67 laws before Scottish parliament could pass them". The Guardian.

Bibliography

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