Brexit is a feast for constitutional lawyers. Royal Assent to Bills that have passed both Houses and how exactly it is given, including the Great Seal Act 1884, is not normally the kind of detail that most lawyers, even those who are specialists, carry around in their heads. Royal Assent has been, for centuries, a formality. Why worry about the details of this formal flummery?
It has now been argued by Professor Finnis that were the European Union (Withdrawal) (No 5) Bill to pass both houses, it would be legitimate for the government to withhold Royal Assent. This follows on from his suggestion that the passing of such a Bill should be prevented by the government choosing to prorogue Parliament. I have previously addressed the importance of not dismissing Finnis’ arguments on the basis of some of the other (offensive) views he holds.
The crux of Finnis’ argument is that the Commons, and in particular its speaker, is behaving illegitimately. Ordinarily, the government is in control of the legislation that is presented to the Commons. This is for very good reasons. The government, aided by a professional civil service, is able to take an holistic view of law and expenditure. Allowing MPs control of the legislative process gives rise to the danger that majorities will be constructed for inconsistent and incoherent things. There may be a majority for extra public spending, no larger deficit and lower taxes for example. A single entity, the government, must make the hard choices, and if the Commons doesn’t like them, its remedy is a vote of no confidence requiring the government to be replaced by another.
There are, admittedly, Private Members Bills, but these are allocated limited time, cannot cover matters requiring further expenditure, and are small in number. They usually cover such crucial matters as the regulation of sunbeds and the control of horses.
Finnis argues that the European Union (Withdrawal) (No 5) Bill is illegitimate in two ways. First it seeks to take away decision making from the government in the conduct of international relations, second it will impose a charge on the public purse without government approval. (The latter is somewhat doubtful, but the necessary European elections would not be cost free). If the Commons wishes to pursue these goals its correct course would be to pass a vote of no confidence and find a different set of ministers prepared to pursue the objectives in the Bill. Its refusal to do so, whilst taking on tasks that are properly the government’s, justifies the exceptional steps of proroguing Parliament or withholding Royal Assent. Or so he argues.
The Crown and the Monarch
One distraction, about which Finnis is correct, is in relation to the Monarch. In the modern era, we need to distinguish between the Crown (the institution) and the Monarch (the person). The former is many centuries old and will last as long as the State. The latter is Elizabeth II, a youthful 92. It is the Crown that gives Royal Assent, not the Monarch the person. The Monarch is nowadays no more than a pen. In almost all circumstances where she exercises any legal powers she now does so in accordance with the advice of the relevant minister. Where it is inappropriate for such advice to be definitive (as it is in deciding who to appoint as Prime Minister) she now does so in accordance with a rule (whomsoever the Commons has already determined has the confidence of a majority).
Royal Assent is not performed by the Queen alone. The Bill first goes to the Lord Chancellor, and she needs the Great Seal. The details of this are unnecessary. The relevant other officers of the Crown (who are members of the government) could prevent the pen (the Queen) from giving Royal Assent.
The only option for the current Monarch if asked to do something to which she had a profound moral objection would be abdication, not refusal.
Is it conceivable that Royal Assent could be legitimately refused in any circumstances? Again, I think it is best to concede to Finnis that there may be highly unusual cases where ,between the passing of a Bill through both Houses and the decision whether to give Royal Assent, circumstances have dramatically and unexpectedly changed where the enactment of the Bill would be inappropriate.
Ordinarily however, and for hundreds of years, Royal Assent has just been a formality. In the United States the President has exercised an analogous “pocket veto” power in relation to Bills. This may be thought legitimate in that system because the President has his own democratic mandate independent of Congress. The UK government has no such separate mandate. Its democratic legitimacy is only sourced from the Commons.
If any government did try to withhold Royal Assent from a Bill (save in the ultra rare change of circumstances situation above) the response of the Commons would be swift. The government would lose a vote of confidence and be swiftly replaced.
The only reason why Finnis’ argument is of relevance is because of lack of time. Votes of confidence, and the process of coalescing around a candidate for Prime Minister who commands majority support takes time, especially where as now no party has a majority in the Commons. If a Bill needs to be passed urgently, as one requiring delay to Brexit or more sensibly changing the default to revoke possibly would, a rogue government could prevent it altogether by pocketing the Bill for the brief period necessary.
It is important therefore for it to be said loudly and clearly that this is illegitimate. Yes, ordinarily the government is in charge of legislation before the Commons because it can take an holistic view, but that is only because that is what the Commons itself ordinarily thinks best. Where, as now, our democratically elected body takes, exceptionally, a different view, that is legitimate because it itself is the body mandated by the voters to take that decision. The formal details of the Royal Assent Act 1967 or the Great Seal Act 1884 are irrelevant.