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United Kingdom: Government Considering Role of Monarchy in Consent to Legislation

(Sept. 17, 2013) The United Kingdom’s government has recently announced an inquiry into the impact of the Queen’s and the Prince’s consent on the legislative process. (New Inquiry – The Impact of Queen’s and Prince’s Consent on the Legislative Process, PARLIAMENT.UK (last visited Sept. 3, 2013).)

The remit of the Inquiry is to investigate when the government has advised the Queen or Prince of Wales to refuse consent within the past 20 years, how the consent was sought, and the source of this procedure. It aims to determine whether there is any justification for continuing to have the Queen’s or Prince’s consent as part of the legislative process and, if so, whether this poses a risk of politicizing the monarchy and how the risk can be mitigated. Other issues relating to politics are also being considered, including whether the consent might be seen as a selective veto for Ministers with regard to Private Members’ bills and whether, if the consent should continue, it should be codified. (Id.)

Background on the Inquiry

The Inquiry appears to stem from a Freedom of Information request by a lawyer and academic who requested documents relating to the Prince’s consent in connection with the requester’s research into the Duchy of Cornwall. (John Kirkhope v. Information Commissioner and National Archives, EA/2011/0185 (Jan. 15, 2013).) The government initially refused to release the documents, but the Information Commissioner required its publication, and the Information Rights Tribunal upheld this decision. (Royal “Consent” to Laws Revealed After FOI Battle, BBC NEWS (Jan. 15, 2013)).

The documents released as a result of this request show that at least 39 bills have had some form of “royal consent agreement.” The legislation ranges from the Rhodesian Independence Bill of 1969 to a 1999 bill that would have removed the authority to take military action from the Royal Prerogative and given Members of Parliament a vote, specifically on whether to take military action in Iraq. These documents have raised concern that the role of the monarchy has been politicized, with Ministers exploiting the role of the Queen’s consent to veto bills that they dislike. (Robert Booth, Ministers Accused of Exploiting Royal Veto to Block Embarrassing Legislation, THE Guardian (London) (Jan. 15, 2013).)

Royal Assent and Royal Prerogative

The role of the monarch in enacting modern legislation has been described as largely ceremonial. Royal Assent is required for all bills in order for them to become law. Convention provides that Royal Assent will not be refused for a bill that has been negotiated successfully through Parliament. The last time Royal Assent was refused was in 1707, when Queen Anne refused to assent to a bill to settle the militia in Scotland, and the last time the monarch made an in-person appearance to provide assent was in 1854. (Royal Assent, BBC NEWS (Oct. 14, 2002).) In addition to providing Royal Assent, the Queen or, in certain instances, the Prince, must provide consent in cases where legislation affects the Royal Prerogative or if it affects the revenues of the Duchy of Lancaster, the Duchy of Cornwall, or the personal property or personal interests of the Crown. It is this consent that has caused recent controversy. (Royal “Consent” to Laws Revealed After FOI Battle, supra.)

The Royal Prerogative is a residual power that is derived from the common law. No legislation is required to exercise the power, and it is typically used by the executive acting in the name of the Crown. There are numerous examples where the Royal Prerogative can be used, significantly to make treaties, appoint the Prime Minister, summon or prorogue Parliament, or declare war or peace. (Office of the Parliamentary Counsel, QUEEN’S OR PRINCE’S CONSENT, ¶ 2.7 (Dec. 19, 2012).)

When Is Consent Required?

Consent is not required if the impact on the Crown is indirect or too remote or where the impact is insignificant. When the Queen’s consent has been given, it is normally recorded in Hansard, the official report of the House of Commons and House of Lords. (Id. ¶ 4.1.)

A recent example of when the Queen’s consent is needed was for the Civil Partnership Act of 2004. The reason given for the consent requirement was that a declaration about the validity of a civil partnership would bind the Queen. Conversely, the Queen’s consent was not required for the Equality Act of 2010, which allowed the registration of civil partnerships in religious premises. In this case it was considered that the Queen’s interest was too remote in this matter for consent to be needed. (Id. A.9.)