Tuesday, 15 January 2013

Queen's or Prince's Consents

The Cabinet Office has published Guidance from the Office of the Parliamentary Counsel and one particular guidance document relates to the Queen or Prince's Consent (the guidance).    This guidance sets out some of the issues that arise when considering whether 'Queen’s or Prince’s consent' should be signified to a bill and contains information about the signification of consent.

The Queen’s consent needs to be considered in the case of -

• provisions affecting the prerogative, and

• provisions affecting the hereditary revenues, the Duchy of Lancaster or the Duchy of Cornwall, and personal property or personal interests of the Crown.

Queen's or Prince's consent is not to be confused with Royal Assent.  The granting of Queen's or Prince's consent for a bill is merely consent for Parliament to debate the bill and does not affect the right of the monarch to withhold royal assent to the bill.  That said, by convention, Royal Assent is never refused for a bill that has successfully negotiated its way through Parliament - (see the guidance at para. 7.11).  Some lawyers hold the view that, in some perhaps extreme circumstances, this convention could be ignored and Royal Assent refused.  As a matter of strict law, that must be right but the 'binding force' of a convention rests in the possible consequences of not following it.

The Cabinet Office has published the material as a result of a decision of the Information Rights Tribunal - see BBC 15th January 2013 and The Guardian 15th January.   The Cabinet Office fought against the publication of the 30-page internal guidance in a 15-month freedom of information dispute which ended with the Information Rights Tribunal ruling against the Cabinet Office.

The existence of the consent procedure has been known for many years but it is extraordinary that information relating to the legislative process should be in any way secretive in a modern democracy.  It is also extraordinary that Parliament requires Queen's or Prince's consent to even debate certain bills.  Of course, these processes reflect the point that sovereignty in the U.K. rests with the 'Queen in Parliament.'  The publication of this document is hardly likely to shake the constitutional foundations of modern Britain but the fight to keep it under wraps demonstrates the secrecy endemic in much of British administration.

Related items:

Matters Royal 31st October 2011

View PDF of Information Commissioner Decision Notice FS50425063

Information Rights Tribunal Decisions

1 comment:

  1. The linked BBC report, in line with the linked Guardian report and expanded in the Guardian report titled ‘Ministers accused of exploiting royal veto to block embarrassing legislation’, contains the following:

    The document also reveals that the Queen did not consent to a Private Members Bill in 1999 which proposed transferring historic formal powers to declare war - under the royal prerogative - from the Monarch to Parliament.

    Although no reason was given for this, the bill was not supported by the Labour government at the time and had no chance of becoming law anyway.

    However, Professor Brazier’s 2007 paper, Legislating About the Monarchy, has the following at footnotes 36 and 48:

    36 - Thus the Military Action Against Iraq (Parliamentary Approval) Bill (HC Bill 35 (1998-1999)) had no Queen's consent and the Deputy Speaker refused to put the question on second reading: HC Deb. vol. 329 col. 541 (16 April 1999). The Bill's sponsor had declined as a matter of principle to seek such consent.

    48 - It would have been instructive to have seen the Government's reaction had Queen's consent been sought for the Military Action Against Iraq Bill in 1999 (see note 36).

    I wonder if you could throw some light on this?