23:23, February 08 55 0 theguardian.com

2021-02-08 23:23:05
Queen's consent  
 The Queen has more power over British law than we ever thought

The Guardian’s investigation revealing new detail on the impact of “Queen’s consent” in our legal system marks a significant advance in our understanding of an archaic and mysterious part of the UK constitution. It should prompt grave concerns about the practice’s continued existence.

Queen’s consent is a procedural rule, internal to the workings of parliament and of unclear origins, which requires the monarch’s consent to be obtained for certain types of legislation – before they can be presented for final approval by either house of parliament. It must not be confused with the equally archaic process of royal assent which, in contrast, is well understood, applies to legislation already approved by both houses of parliament, and which is widely accepted as being purely symbolic in almost all realistic circumstances.

The anti-democratic potential of the consent process is obvious: it gives the Queen a possible veto, to be exercised in secret, over proposed laws. But there has been no way to know whether it was realising that potential or not, and so no way to know how damaging the process might be, because its workings have previously remained hidden from public view.

In particular, two key aspects have generally been unavailable in the public domain: the range of legislation that is subject to the process as it goes through parliament; and the significance of the process, whether it is a merely symbolic or procedural step, or involves genuine reflection and negotiation on the content of proposed laws. This week’s investigation uncovers significant examples of both.

Until now, the main indication of the range of legislation subject to the process was a pamphlet intended to guide the parliamentary lawyers who select which proposals require consent, and which don’t. The Queen’s consent is needed, according to that pamphlet, for any legislation that would affect “the prerogative … the hereditary revenues, the Duchy of Lancaster or the Duchy of Cornwall, and personal or property interests of the crown”. Yet although it gives examples, the pamphlet does not reveal in detail what kinds of legislation meet those criteria, and how seriously they must impact those interests before the consent process is invoked.

We now know there has been a persistent practice of applying those criteria so broadly that significant amounts of legislation regulating otherwise quite ordinary activities have required consent. The Queen pays tax, so (for example) finance laws require consent. The Queen is an employer, so (for example) child support and pensions laws require consent. And so on. Quite superficial connections to the interests of the crown are sufficient to trigger the Queen’s involvement.

Even less information has been available on the substance of the process once triggered. All correspondence containing requests for consent, replies and the documentation of any related discussions have always been shrouded in absolute privacy. The only clue to their existence is the routine formulaic confirmation in parliament whenever consent has been given, which reveals nothing about the process through which that consent was secured. So it has been impossible to ascertain whether this is an essentially symbolic process, comparable with royal assent and perhaps justifiable as symbolically acknowledging the Queen as a formal part of the legislature; or whether it provided (or had the potential to be used as) a genuine opportunity for the Queen to veto legislation or influence policy.

But it is now clear this process is far from merely symbolic. The documents uncovered by the Guardian provide remarkable evidence that this process accords the Queen’s advisers a genuine opportunity to negotiate with the government over changes in proposed laws, that they do sometimes secure such changes before giving consent, and that they are even prepared to threaten to withhold consent to secure their policy preferences.

This degree of involvement in the legislative process is unjustifiable. It is a serious constitutional mistake that has survived only through being obscured. In the famous formulation, the Queen in our constitutional monarchy has the rights “to be consulted, to advise and to warn”. It is now clear that the process of Queen’s consent goes beyond the boundaries of legitimate involvement set by those rights.

In 2014, a parliamentary committee contemplated the abolition of the process but, expressly relying on the fact they saw “no evidence to suggest that legislation is ever altered”, the members concluded it was a purely “formal … process”. Convinced by its countervailing symbolic value, they stopped short of recommending abolition. The revelations this week should prompt members of parliament to revisit that 2014 decision. There is no place for this process in the working of a 21st-century democracy.

  • Adam Tucker is a senior lecturer in constitutional law at the University of Liverpool